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.'"

Comments

The problem with juries

[EmbeddedJanitor]

If the RIAA just stuck with points of law, then they'd probably be doing OK. However, they lose it when they start trying to play the "starving artist" card. They get into trouble when they try pull on the jury's heartstrngs because that is quite easily countered for many defendants.

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.

Re:The problem with juries

[Anonymous Coward]

Actually, Mr. Beckerman appears to be quite honorable and exhibits decent ethics. Not only that, he actually takes time to respond to criticisms, questions, and even assinine insults like yours, without resorting to attacking the poster.

I wish more attorneys were like that. I have had clients who are attorneys in the past and I value less than pond scum, with morals/ethics that are below the most cowardly of terrorists. Some of the stuff they'd contrive just to win a case are abominable. They stoop to character assassination and the like rather than arguing based on law. Mr. Beckerman does not appear to be that type.

If you ever are on the receiving end of an RIAA case, you will grow to appreciate the likes of him. The RIAA seems bent on arguing away Fair Use, inventing law as they go along and use racketeering techniques in their anti-progress campaign, rather than working with their customer base and embracing new technology.

RIAA: if you're reading this, Napster directly resulted in my purchasing well over 100 CDs (possibly over 200) while it was live, because it introduced a try-before-you-buy solution. I discovered jazz (like Herb Alpert) and other instrumental music I would never have considered purchasing otherwise. Sadly, the only solution now is listening to partial track selections on Amazon, and I rarely base my decision on that because they invariably pick the worst part of a track to exhibit on their site. So, since then I download from Creative Commons sites (free/free music!), listen to classic rock, classical, and talk radio, and generally go out of my way to refrain from exposing myself to new content because I do NOT want to be your customer. The only CDs I've purchased since Napster's demise are:

  David Gilmour's On an Island
  Pink FLoyd's live Wall album
  Hmm, there was another one I can't recall

So basically, Napster conduced me to buy more CDs over the course of 12 to 18 months it was at its peak than I did in 13 whole years I owned CD players previous to that. The rest of the content I have is recovered from old cassettes (yes, I still have hundreds of cassettes lying around along with a decent tape deck) and processed in Audacity to reduce noise and recover the highs, so I have enough music to keep me content between my existing collection and creative commons sites that I do not need your content. Embrace the try-before-you-buy model or go the way of the do-do as new bands grow wise to your racketeering methods and decide to openly distribute share their own content WITHOUT major label affiliation.

In summary, to be straight to the point as concisely as possible: Fuck you, RIAA members!

Re:Duh

[MikeJ9919]

I think this is exactly what's going on. The RIAA is worried that they'll get locked into mutual litigation. Once that happens, if defendants win, they start stacking up precedents, both binding and persuasive. More importantly, the media publishes every single story where the defendant not only got sued by the bloodthirsty RIAA, but "Look, they won, so they must've been right, and the RIAA must've been wrong!" Suddenly everyone starts asking how many of these lawsuits are actually valid.

However, the original poster seems to be spinning this. Take whatever I say with a grain of salt because I'm only a first-year law student, but a 12(b)(6) objection is not merely technical. It's the most basic defense in federal Court to frivolous claims. If I give you a dirty look, for example, that's not nice, but it's not a crime or even an offense for which you can sue. I don't know the case law on point and (again) I'm only a first-year, but it doesn't look like this clause of the Copyright Act is something for which you can directly sue. It looks like exactly what the RIAA says it is...a cost-shifting provision the Court may impose as part of a final decision. If the defendant really thinks the RIAA is making a frivolous claim, they shouldn't be filing a counterclaim, they should be filing a Rule 11 motion, which allows the Court to punish frivolous claims.

However, I can understand why they're reluctant to do this. Some commentaries believe Rule 11 has been eviscerated over the years. In its current form, it allows the party being accused under it to simply withdraw the claim, motion, etc. within a specified safe harbor period and face no repercussions. It's supposed to encourage more civilized litigation, open discourse between the parties, etc., but some think it's swung too far in the direction of letting people throw out whatever ridiculous thing they want. Again, my analysis of the whole thing may be way off, but I hope it's not (or my civ pro grades may not be as good as I hope they will be.) Hope it helps.

Re:Relevance?

[NewYorkCountryLawyer]

If you don't think that compassion and decency have a place in the law, I feel sorry for you.

I don't share that outlook. I wouldn't have gone into the legal profession I did. I came here to help make the world a better place, not a worse place.

Ms. Schwartz is a very sick woman who didn't infringe anyone's copyrights. The RIAA's lawyers are aware of both of those facts. They should have dropped this case, but they and their lawyers are ghouls. In my view anyone who doesn't get that it's wrong to persecute helpless people this way isn't my kind of people.

I suggest you read what Jordan Glass had to say about these lawsuits in an excellent article on p2pnet.net.

Sorry if you feel I "weaseled" out of answering the question. I think I did answer it.