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Does the RIAA Fear Counterclaims?
NewYorkCountryLawyer writes, "The RIAA seems to have a fear of counterclaims. In Elektra v. Schwartz, a case against a woman with Multiple Sclerosis, the RIAA is protesting on technical grounds Ms. Schwartz's inclusion of a counterclaim against them for attorneys fees. This counterclaim includes as an exhibit the ACLU, EFF, Public Citizen brief in Capitol v. Foster, which decried the RIAA's tactics as a 'driftnet.' In prior email correspondence between the lawyers Ms. Schwartz's attorney had offered to withdraw the counterclaim if the RIAA's lawyer could show him legal authority that its assertion was impermissible, saying 'I wouldn't want to get into motion practice over a mere formality.' The RIAA lawyer's response was 'I will let you know.'"
Most extortionists do.
The RIAA has always had the backup power to just drop a case that they think they're going to lose.
If people start filing counter claims, then the RIAA has no chance of dropping the case without getting dinged for lawyers fees.
[Fuck Beta]
o0t!
I'm still trying to work out the story here. The submission appears to be saying that the RIAA doesn't like being countersued. Which presumably means that most people who sue actually love being countersued, or at least don't mind. Or perhaps the submitter thinks that people generally aren't aware of the fact that those who sue don't like being countersued.
Either way, this actually seems, well, blindingly obvious to me.
Perhaps it's the submitter that's surprised (in which case why did the editor post it? I mean, if I submit "Would you believe it? I just found the way to compile a Java class is with "javac". Wow!", I'm pretty sure it wouldn't get posted.
If the submitter really is a lawyer, rather than a shill for the RIAA who's trying to make all those in favour of meaningful copyright reform look like freeloader-apologists, then this story is yet another good reason why I wouldn't ever hire the guy.
I've tagged this "FUD" (because it tries to sow uncertainty, fear, and doubt, by using negative language to make the usual look unusual), "troll" (because I'm more and more convinced that's what this guy is. How can you not read the submission and want to flame the hell out of it?), and "blindinglyobvious", because, well, it's that.
You are not alone. This is not normal. None of this is normal.
i eagerly await someone, lawyer or not, who is willing to explain this in plain english - i read a bunch of the links and i still don't understand it.
It's hard to believe that's how Micronians are made. Why don't we see it right now by having you both kiss one another?
Don't we all love it.
©God
My "single-mom with multiple sclerosis" beats your "starving artists".
If they just stuck with a straightforward legal approach, they might fare better. ie. Just because you're a single mom with multiple sclerosis does not give you a right to steal music/software any more than it gives you a right to deal drugs.
Engineering is the art of compromise.
What they are afraid of is the legal concept of "non-mutual collateral estoppel."
Take for example, "Is the IP log showing the IP assigned to you by your ISP was involved in sharing enough for a copyright violation?" If the RIAA litigates this question, and wins, they win that case. They will have to litigate that issue against with the next defendant, and so on, because the next defendant may have different arguments.
But if the RIAA loses, they can not get a second bite at the apple by tring the same argument on a different defendant. They have litigated that issue, and lost. They are "estopped" from relitigating that particular issue.
This is common in the patent litigation, where just becuase you won 10 patent infringment suits, the 11th defendant can still beat you, but once ANYONE has beaten you, you lose from then on on that legal issue.
If the RIAA ever loses, you can bet that 1) they will appeal, and 2) while the appeal is pending, they will pay the defndnat a bazillion bucks to "settle" with vacation order, which will nullify the decision. And if you think they won't or can't, the insurance industry has been using this exact tactic for decades.
... reading the Times of India.
You understand quite a lot of the individual words, but once they're put together into sentences you (or, more precisely I, as a native English speaker, YMMV of course) end up without the remotest clue what the overal paragraph means.
I appreciate NewYorkCountryLawyer's insight into many of the legal issues discussed here, but the summary seems misdirected.
The summary describes a "case against a woman with Multiple Sclerosis," and the lede of the P2PNet article is, "RaeJ Schwartz is a mother in Queen's [sic], New York, who's been seriously disabled by multiple sclerosis, a chronic, crippling disease of the central nervous system." Neither makes any further mention of her disease or disability, or any mention of how either affects the case, so we're left to guess: Is the implication that the RIAA is particularly unscrupulous for bringing a suit against someone with a severe medical condition, and that it should hence be additionally vilified accordingly? This leaves unanswered the basic question of why her disease should affect our analysis of the situation. My best guess: MS can severely limit mobility, so the implication is that her disease prevented her from downloading. (How likely is this? I'm ignorant of the practical specifics of the disease.) If this is the implication, it should have been included in the summary.
Instead of name-dropping her disability and saying no more, the summary ought to have included something more relevant, like "a case against a woman who has a severe medical condition preventing her from conventional computer use" or "a case against a woman who likely never downloaded any music" (as was suggested in the P2PNet article, though this would deserve more explanation, too).
I may be waaay off base. Feel free to correct (like you needed permission).
The whole point of copyright is money. Shouldn't anyone suing over a copyright issue have to show that their client suffered financial loss right up front before anything else?
Just my thoughts.
Counterclaims are an occupational hazard, although certainly enough of those might alter their behavior.
What they fear is obsolescence. Well, that and jail time. I think some of each is in store for these guys.
The higher the technology, the sharper that two-edged sword.
.... Fears anything that will stop their monopolization of the music industry.
This is my opinion. To make sure you don't steal it, it's covered by the DMCA.
http://www.consumer.state.ny.us/clahm/clahm-child
Parents or legal guardians (other than foster parents) can be liable for up to $5,000 in damages for the willful and malicious damage, destruction, concealment, or theft of property (whether publicly or privately owned) by their child, if between 10 and 18 years old. This also includes the actual monetary damages suffered by a school or other public or private victim in responding to the false reporting of an "incident" or placing a "false bomb" by a minor. If damages awarded by the court exceed $500, the parent can ask to have damages limited to that amount they can actually afford to pay, up to $5000, but not less than $500, because of financial hardship.
this would seem to indicate, parents CAN in fact be liable for child actions.. can you resolve please, this difference of opinion?
every day http://en.wikipedia.org/wiki/Special:Random
so if the kid steals a CD the parents can be forced to pay, but sharing a song means the parents are not liable?
I'm sure a great many individuals (including lawmaker types) consider both to be theft...
I'm trying but failing to visualize a situation where parents would be financially responsible for theft, and it's not a civil matter.
every day http://en.wikipedia.org/wiki/Special:Random
http://www.eccpasa.info/safehomes%20legal_conseque nces.htm
General Obligations Law 11-105
Parents or legal guardians of an unemancipated minor shall be civilly liable for said minor who commits larceny against the property of a mercantile establishment to the operator of such establishment in an amount consisting of:
a. the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed $1,500.00; plus
b. a penalty not to exceed the greater of five times the retail price of the merchandise or $75.00; provided, however, that in no event shall such penalty exceed $500.00.
so such civil responsibility does exist,
every day http://en.wikipedia.org/wiki/Special:Random
In the federal system only 2% of tort cases end in a trial. Additional Federal Civil Justice Facts at a Glance The plaintiff tends to win, but the odds are little better than a coin toss.
The other person wasn't saying that the idea of insurance is bad. They were saying that the insurance companies are total slimebags and do nasty things.
Money is not the only reason that someone would want their work protected by copyright. Every piece of GPL'ed code that is out there is protected by copyright, but not for the purpose of making its holder any money. The purpose of the licence is to keep the code Free. You won't find Stallman claiming that the point of copyright is money.
The holder of the copyright can exercise whatever restrictions on copying (short of fair use) that they wish. The default behaviour is "All rights reserved," meaning that the holder retains all duplication rights, and grants none to any other party (again, excepting fair use). There does not need to be any financial motivation for restricting others' copying rights: holders can do it simply because they want to.
Look at the tomato! Isn't it sad? He can't dance! Poor tomato!
What link farm? I see a site that sells and gives away Windows administration tools.
I don't always use unix-like operating systems; but when I do, I prefer FreeBSD.
This is your very first comment on Slashdot and that is the way you start off? You're not only a troll.... you're an inept troll.
Ray Beckerman +5 Insightful
The part that I've always found totally incomprehensible is why no people-minded judge has ever slapped the RIAA lawyers down bigtime for predatory practices against a very significant proportion of the population.
... but it should be enough to justify a reprimand when a "decent" judge sees the law being used in a manner that at the very least lacks honor and propriety. Does no judge even recognize what amounts to a siege of the "RIAA against the people"?
The RIAA do stick (roughly) within the law on a point-by-point basis, but surely this doesn't make them immune from charges of doing something that is pretty close to extortion when examined overall.
I find it hard to believe that they have a clean sheet in the eyes of the bench, when dozens of millions of ordinary citizens have no doubt at all that the RIAA lawyers are preying on the community using highly questionable techniques and with a total lack of social conscience.
Of course, the latter isn't necessarily unlawful
I am reading it, and it says on 6th page of the pdf
"The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. "
Italics/bold mine-
this seems a rather narrow application- it specifies the circumstance ~ ONLY when x is distributing a product~ be held responsible for Y's infringement.. it says nothing about all other permutations of relationship between X & Y except earlier, where it does read in part
" Although "[t]he Copyright Act does not expressly render anyone liable for [another's] infringement," Sony, 464 U. S., at 434, these secondary liability doctrines emerged from common law principles and are well established in the law, e.g., id., at 486. Pp. 10-13. "
again italics mine, and would seem to indicate there are circumstances other than covered here where parties are cross responsible.
every day http://en.wikipedia.org/wiki/Special:Random
Why the hell wasn't this insightful when I mentioned it months ago? The RIAA has taken actions which, rather than stopping piracy, will allow greater numbers of people to learn of the various ways they can listen to music for free. If you just throw darts at a phone book (the way the RIAA seems to be picking lawsuits) you'll probably find someone who you can sue, and a fairly large percentage of the time, they're probably guilty. Now, consider the difference in profit for the RIAA for someone buying a song of iTunes, and settling out of court with them for a couple grand. This is more than an effective business plan, it's the missing second step between 1. Throw darts at a phone book and 3. Profit!
I know it's late a night on a weekend, but this article is a waste of time and space. The original poster is in a spitting contest with RIAAs counsel that is largely irrelevant. For those who haven't read the links, the big dispute boils down to whether the poster can officially ask for attorney costs now (as a counterclaim), or whether he has to wait and ask later (under the standard cost-shifting framework of US copyright law). The RIAA IS NOT disputing the propriety of awarding costs (at least not yet), just WHEN the defendant can ask for them! Slashdot shouldn't be serving as a self-serving blog for some lawyer. I know he used all sorts of legal terms to foll people into getting this posted, but we need higher standards than this.
Nothing to add really, just wanted to say thanks for all you're doing.
Weaselmancer
rediculous.
LOL!
The term "troll" has existed since before you were born.
There is something worse than old people trying to keep up with "The Lingo": it's snot-nosed little brats thinking they invented "The Lingo".
Under capitalism man exploits man. Under communism it's the other way around.
The submission appears to be saying that the RIAA doesn't like being countersued
The question is not so much whether they will be unhappy if they are countersued, but rather if they register the possibility of such (and the damages it represents) as a possible restraint on the reckless pursuit of inproperly substantiated lawsuits.
So in short, the answer is:
Dislike: Of course
Fear: No so much indication of this yet.
Nn no, he is welcome, now we can lose all those posts that start with 'IANAL but'.
Unfortunately, this being the internet, anyone can claim they are a lawyer or quantum physicist or ultra sexy porn star. Since there is generally no way to verify this, everything is in doubt. I don't know if this was the case in this thread, but lots of trolls have created a cyincal attitude on slashdot in perticular. It also has bred an air of hostility.
However, for all you know any given user could also be a lawyer, judge, or "president for life" of some small country posing as a regular person. ...or just not bothering to tell anyone who he/she really is. You never know.
save yourself. Suicide is not necessary for atonement.
You may have to kill a law professor, but I honestly think that's too harsh. But do get out.
Do something useful for society, become a doctor, engineer, fireman, fast food deliverator, anything but another fucktard asshole society rapist lawyer. Open a surf shop.
Thanks!
You've opened my eyes!
I'm going to invest all my money in insurance companies! Because many of them are publicly traded, and you've convinced me that they're making an obscene amount of money, and I want a part of it.
Of course, that's just the short-term method of making money off your secret information. You've convinced me that the industry isn't competetive, because if it were, the companies that overcharged would quickly go out of business. (We know how hard individuals and employers are looking to find cheaper medical insurance, it must be that the insurance companies are all in cahoots.)
For the long-term money machine, I'll save the money I'll get from investing in insurance companies (it won't take long, if they're really as profitable as you suggest) and use it to start my own insurance company, and price my insurance reasonably, and people will FLOCK to my company and I'll RAKE in the dough.
I'm just glad that no one with money has noticed what you've just pointed out to us priveliged people here on slashdot, or they'd have alreasy started a low cost insurance company, and I wouldn't get a chance. Let's hope that no rich people/companies read slashdot.
Exam 4/C again. Maybe I'll do better this time.
P2P music sharing has directly resulted in my not buying any music in the past 4 years. Not 1 cd.
I have downloaded over 175 albums in that time though
thank you.
A posting that has no obvious single link to click? Give me ONE link about what the blurb is about, don't link every other word to a different article.
There's actually 10 kinds of people on Slashdot.
Those that understand binary.
Those that don't.
Who is general failure, and why is he reading my hard drive?
I appreciate the comedy of the dumb-ass high school kid trying to "scrap" with the respected attorney in an anonymous online forum.
My only question: Did you create an account just so you could make yourself look like an idiot, or did you already have it set-up like a hot-spare available at a moments notice if you ever need to prove your stupidity against a stopwatch?
It's just low-class. Like that jack-ass who puts signs for his MLM 'home business' all over his car and house.
Blar.
This is either genius comedy, or pure unbridled stupidity.
You were trolling, and he called you a troll. Where is the attack in that?
Now, IANAL, but I'm pretty sure about one thing: The best defense against libel is the truth.
Maybe there's a lawyer here that could confirm this, but I'm pretty sure that you don't have a case.
Now go crawl back under your rock, please.
There are 10 kinds of jokes in the world.
Those that are completely stale and played out, and those that aren't.
I see lots of comments about how this person didn't do anything. OK, the RIAA isn't so incredibly stupid as to just pull people's names out of the phone book and sue them. While file sharing and related copyright violation is common, it isn't quite that common.
So, where did they get her name? Could it be that someone was using her computer and/or Internet connection without her knowledge to do these things? Could it be that the ISP in question misidentified the customer for the RIAA, perhaps intentionally?
I seriously doubt this person had a random selection process applied to them. It could be that she is actually the account holder of an Internet connection used for file sharing. It could also be that the ISP made a mistake, intentionally or otherwise, thus leading to the lawsuit. Funny, you never hear about the results of these sorts of problems.
Sorry - there are 11 kinds of people.
Those that understand binary.
Those that don't understand binary.
Those that should sit in their mom's basement and keep quiet.
Who is general failure, and why is he reading my hard drive?
It looks to me like that law delineates specific circumstances where the parent is responsible. Lacking other laws, the implication is that outside those specific circumstances the parent is not responsible.
Assembly is the reverse of disassembly.
Without inflection of voice, it's not always easy to extract the idea out of a sentence.
I've been following the dialogue and so far and NewYorkCountryLawyer seems have been polite and informative and generally interested in discussion-- (I've never seen so many attentive replies in a slash dot discussion before).
In one section, I saw him reply to the question of whether parents are liable for their childrens' copyright infringements as "No, they are not." After the poster's reply to this, he appologized for being curt. To be honest, I thought he was being curt at first until I relized I was wrong. His answer was neither rude nor condecending. It was, however, trite, and without inflections of the voice, it was easy to mistake his comment for curtness.
Similiarly, I saw your reply beginning with "Instead of making a flippant remark and making me your foe" and thought it was flaimbate at first. After reading it again I realized it was a defensive statement. Because the initial fragment was so confrontational, it made the main part "why don't you just explain why I'm wrong" sound belligerent. I think it wasn't. Again, without the inflections of the voice, it was easy to mistake your comment for flaiming.
I see this kind of thing happen all of the time when textual statements are short. It's just the dangers of text comunication I guess.
Yes, actually, they are. Your username may say that you're a lawyer, but you are certainly not correct here. Parents are always responsible for the actions of their children. If someone's 16 year old kid gets drunk and in a car wreck and causes hundreds of thousands of dollars of medical bills, the parents are on the hook and on the receiving end of the lawsuit. There may be some recourse in rare situations where official paperwork is done for an emancipated minor. That would probably free the parents from liability for the child.
We may experience some slight turbulence and then...explode. -Capt. Mal Reynolds
Point taken, sir.