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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!
Yeah, it is pretty much stating the obvious. No one would want to be countersued, but I see it's positive that some people are starting to countersue them. I treat their actions as very immoral as they always seem to sue the weak (do they deliberately look for the weak to sue such as victims of multiple sclerosis or do these people just happen to be brought to our attention as its more newsworthy?) Also the more that articles about the RIAA/MPAA litigation happy actions get published the more the public will start to know. Eventually they may start caring, and hopefully they'll start to care before it's too late.
well, but apparently her kids did, using her DSL connection. Aren't parents liable for the actions of their kids? Just being devil's advocate here.
molmod.com - computing tips from a molecular modeling
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.
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.
I don't have the numbers in front of me, so I'll keep it vague.. but somewhere well above 70% of civil suits are settled out of court. Normally a plaintiff's lawyer will work for pay or for a percentage - either way the RIAA is likely rolling it in.
Consider that these seemingly random intervals between big announcements of a few hundred suits are probably spent gathering data and building cases for the next batch of suits. It's a bussiness plan unto itself, not an attempt to stifle music sharing on the internet. If the RIAA wanted to stop theft and make money, they could organize wide licensing agreements with groups like AOL and Comcast that provide internet services to users - you subscribe for internet acess, you get all the music you can eat. AOL offers this type of service through music now.. Yahoo has a similar one.. then there's Napster, etc.. all that stands between these services and broader use is general availability - they need to be able to download the songs and carry them around with them.. or have an internet enabled Ipod-like device that streams the data where you need it when you want it.
Sorry, I started waxing poetic - basically they do this not because its effective at ending piracy or building their legitimate buisiness, but because it's a money machine unto itself. Drop a coin and pump as hard as you can.
-GiH
Not always: a jury verdict is a crap shoot, a risky and expensive roll of the dice.
But first you have to get the case to trial. That is a months or years long ordeal for your severely disabled defendant.
It will be a bitch if you lose.
Look, I think it's great that you're fighting on the "right side" of these particular legal cases & all, but being a lawyer you must be aware that your profession is sometimes perceived as being weasely. When you - especially since you're supposedly "one of the good lawyers" - weasel out of answering a question in this way you just perpetuate that perception.
Your client may be innocent, she may never have heard of file-sharing, she may be a very lovely lady... but her illness is surely irrelevant to the case, and mentioning it is only bid for sympathy. You're playing upon our perceptions that little old ladies & MS sufferers are less likely to download MP3s than teenagers or twenty-something guys with tattoos and spiky haircuts. You're probably right in that, but it's no more relevant to the case than the colour of her skin.
Stroller.
Only the RIAA knows for sure, but I'm estimating that (1) less than 25% of the cases settle, (2) they make a modest amount of money from the settlements, probably enough to break even with their litigation machine, (3) they lose money on the default judgments, and (4) they lose more money on the contested cases.
Ray Beckerman +5 Insightful
Slashdot says, don't moderate down when you don't agree, post.- in the past I have truly enjoyed, in the same vein as groklaw, the things you have introduced the / membership to know...
Your post and reply I wanted most of all. I wasn't even necassarily disagreeing with you- just asking for a clarification.
you say parents are NOT liable, and I had- even before this slashdot post, a back of my head factoid floating around that NY has statutes concerning liability for parents & children and that is a kinda common knowledge thing that in NY it is greater than the norm in the US. I went resarching based on my recollections and then found evidence of it. I'm willing to accept your knowledge is greater in this area than my own- I just wanted you to expand on your original assertion as my citation would seem to diasgree with you- But I was hoping there wouldl be another layer or element I am missing.
every day http://en.wikipedia.org/wiki/Special:Random
Something that hasn't been directly addressed by other comments...the law in question here is not state law, it's federal. Copyright infringement is part of copyright law, delegated to Congress by the Constitution, and by them restricted to trial in federal court. Therefore, only federal statute and common law on the liability of parents for their childrens' conduct matter. I don't know the case law on point, but the general common law rule is that parents are not liable for the actions of their children unless they permit them to do something beyond their ability (operate a bulldozer, for example) or fail to exercise control over a dangerous child. Neither situation applies here.
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
Her having MS is relevant to me. If it's not relevant to you, well everyone's entitled to their opinion.
I have a hunch it's relevant to the RIAA, too, and that it's got something to do with their rather peculiar motion to silence her counterclaim... but of course I can only speculate on what's in their minds.
Ray Beckerman +5 Insightful