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RIAA Receives Stern Letter, Folds
NewYorkCountryLawyer writes "In SONY BMG v. Merchant, in California, the defendant's lawyer wrote the RIAA a rather stern letter recounting how weak the RIAA's evidence is, referring to the deposition of the RIAA's expert witness (see Slashdot commentary), and threatening a malicious prosecution lawsuit. The very same day the RIAA put its tail between its legs and dropped the case, filing a Notice of Voluntary Dismissal. About an hour earlier NYCL had termed the letter a 'model letter'; maybe he was right."
The RIAA are doing these lawsuits with terrible evidence to show that they are not "sufficiently protected" by civil law. This can only help them as they continue to lobby congress for new criminal copyright infringement laws.
How we know is more important than what we know.
The very same day the RIAA put its tail between its legs and dropped the case, filing a Notice of Voluntary Dismissal.
Maybe now they'll start resorting to more traditional methods for people in their business. Like severed horse heads at the foot of your bed.
The theory of relativity doesn't work right in Arkansas.
Secretary: Sir, this letter says no.
Lawyer #1: Excuse me? It says no what?
Secretary: It says no, they're not going to pay up, and that our evidence is weak.
Lawyer #2: Damn, they've got us on that one.
Lawyer #1: Time to give up I suppose.
What happened here was that the RIAA saw a lawyer who not only knew of the RIAA's tactics, but also knew of how little evidence they actually had. Instead of potentially conceding a loss in court that could be used against them in the future, they withdrew their case to avoid a negative stroke on their record. One of the biggest weapons against them right now is to point out prior losses, while one of theirs is to point out prior success in these cases. The more success they have, the more ammunition they have. The more loss they endure, the more ammunition the defendants are given.
Screw the rules, I have green hair!
The 'model letter' said "we will expect your clients to be prepared to dismiss all claims with prejudice. The pleadings may be e-filed from my office the same day. Although dismissal will not avoid your clients' exposure to attorneys' fees". What the RIAA has filed here is a notice of voluntary dismissal 'without prejudice'. This is not the same thing at all.
IANAL, so I turn to wikipedia:
"In law, the phrase without prejudice means that a claim, lawsuit, or proceeding has been brought to a temporary end but that no legal rights or privileges have been determined, waived, or lost by the result. For example, if a party brings a lawsuit in small claims court but discovers that the claim is greater than the amount for that court to have jurisdiction, the lawsuit can be dismissed "without prejudice". This means that the dismissal is no bar to bringing a new lawsuit in a court that does have jurisdiction.
By contrast with prejudice means that a party's legal rights have in fact been determined and lost. To continue the same example, if instead the court had jurisdiction, but the plaintiff did not appear for the trial, the court would dismiss the case "with prejudice". That dismissal is a judgment against the plaintiff "on the merits" of the case, and extinguishes the claim that was being sued over. However, this does not prevent an appeal or a trial de novo if ordered by a higher court."
In other words the RIAA are reserving the right to sue again. Anyone know what happens about fees in the 'without prejudice' case?
While this is good news, it also shows that poor (or just normal) people cannot afford to seek justice easily.
First of all, it probably costs a little bit to get a lawyer to compose an effective C&D letter to RIAA, secondly, it will cost a lot if an innocent person wants to meet RIAA in the court.
So why can we bear arms to protect ourselves, but there is nothing to protect us from this kind of dirty tactics?
Virtual Betting on Facebook for non-geeks.
The letter contains one zinger after another. It's well worth reading.
My precis: "You guys are a bunch of losers. You should know better. We used to respect your firm. If you don't drop this case, we're coming after you to claim damages 'cause you aren't allowed to bring frivolous cases and waste the court's time. Oh, yeah, pay our legal bills while you're at it. Sorry dudes, we realize that your client is a litigeous idiot and general bully but if you don't drop this case we're coming after you anyway. Capiche. Oh yeah, don't forget to pay our legal bills on the way out. Get lost."
The RIAA is truly amazing. The guy they're suing died and they're going after him anyway. Naturally the family is distraught. That makes them a "thin skulled client" or in other words, the family's lawyers are threatening to go after big damages if the case doesn't get dropped pronto.
Wow, that defense lawyer is awesome. Read his response, it's not only legally strong but _technically_ strong. He really did his homework. The RIAA has to be worried by that response, because it would apply to almost any of their lawsuits.
For a second there I thought: "What the hell did Howard Stern do now?"
People theorize the RIAA go after college students, etc. because they know they can't afford to go through a costly trial. However, would it not possibly cheaper just to hire a lawyer pretty much JUST to write you a letter such as this (Adapted to your state and your circumstance), and mail it? If it doesn't work, then the amount you wasted on trying that is still insignificant in comparison to the amount you could possibly save.
Is this letter and letters like it the silver bullet that stops an RIAA lawsuit? What about MPAA? BSA?
NYCL is like the elliot spitzer of copyviol.
kudos for all the updates.
I don't understand why it's necessary to offer a copy of their hard disk to the RIAA representatives as evidence of innocence. If they're essentially accusing pseudo-random people of piracy, then isn't the onus on them to prove it? (I realise that in civil cases it's balance of probability, but even so...)
Why can't they just say: "I'm innocent, and you have no evidence - bugger off" (or words to that effect)?
No, I fear that brib*cough* lobbying will help them with Congress. Which is why we have the Mickey Mouse copyright extension named after Bono, the worthless AHRA, the easily abused DMCA and the obnoxious NET Act, as well as whatever laws I haven't heard of yet.
:(
I expect they'll say something like "We lost so much money, damn pirates! Can you make them easier to catch?" Then they'll try to draft something saying that any end-user of an ISP account is liable for all copyright infringement that goes on through it, including that of 3rd parties and minors.
Or something like that
Of course, that's when it'll be time to hack into their wireless networks and turn the law against them, personally, but I'm getting ahead of myself...
Well, if anything, this is one strong ad for the law firm. He ties together the CA-storm-on-the-horizon RICO, the MediaSecurity fallibility, the driftnet "Smith"-style instigations, and various CA anti-SLAPP and Rule 408 sentiment. Nicely done sir.
The RIAA will change nothing with this. However, they are going find folks spending the money (above and beyond settlement) to get press and dismissals, if possible. I believe the tide is turned.
One thing I notice is that the *AA organizations have shifted the tactics of the warfare against the public domain. They seem to have increased pressure sharply for new laws in poorer countries via international bodies for protection of the so-called "intellectual property" rights, and direct pressure from the US representatives in those countries. Legislators are also lobbied (read bought) to pass such legislation; and lobbying in such countries is still way cheaper than lobbying in the US.
;)
The end result is that more and more countries (especially countries where the electorate isn't particularly sensitive about the _laws_ that govern copyright and related rights -- as they aren't enforced much) not only pass draconian laws with stiff penalties, but use more and more the "intellectual property rights" language, and that may lead to a funny situation in which most of the world outside the US will match, or overdo US; at which point the *AA industry will possibly make the claim that this is "the state of art", and move on to further limits rights in the US.
So, while this development is good, there is still more to come on the copyright front
That letter was fucking awesome! I love a good fight, but that was just a plain freaking knockout.
"My immediate reaction is "WTF? What kind of moron doesn't make things 64-bit safe to begin with?" Linus
Interesting. I tossed this whole phrase into Yahoo.
"We did not find results for: "thin skulled client". Try the suggestions below or type a new query above."
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
imo the best bit is actually split into two places in the letter. first theres this part:
'Mr. Merchant has and had no more duty to respond to attempts to "sell" him one of your clients' boilerplate, non-negotiable $3750 settlements than he has to return cold calls from pushy life insurance salespeople.'
this is followed later by:
'My clients are willing to accept dismissal of the litigation in exchange for
1. Payment of Mr. Merchant's reasonable fees and costs including retainer of $6,880.25. The payment represents good value considering what your own firm's billings will have been to date and use of those billing records as the loadstar rate for Mr. Merchant's award. See Capitol Record v. Foster, Western Dist. Okla No. 5:04-cv-1569-W, Docment 182 filed 3-15-07).'
you gotta love how it says they wont pay the riaa's protection money..., and then asks the riaa to pay them twice as much.
You shall know him by his Sig
Merl Ledford III is gonna ...
... New Clients! ... Profits!
(cue Rocky Balboa movie theme)
"Hit 'em with the left, then he'll hit 'em with the right.
It's a fight, it's a fight
Head-Bust 'em, Head-Bust 'em."
P.S. Everyone look up Visalia, CA on the map now.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
well, it's almost a fact, that the more you enforce things, and the more you restrict, the more people are going to do what you don't want them to do. I'm not saying that there should be no government, I just think the RIAA should back off more, because in the technology world, where information is currency, you cannot successfully track the misuse of this technology without the major violation of one's rights
destiny, chance, fate, fortune; they're all ways of claiming your fortunes, without claiming your failures. -gerrard
translated to "street," it basically says
"Yo, Vinnie, youse working on your own here, and the CourtFather is VERY displeased with how youse is conducting yourself. And you didn't even ask to work this dock. The CourtFather is having a meeting with your Consigliore. Maybe youse should go home while you can."
if this is supposed to be a new economy, how come they still want my old fashioned money?
was written in such simple language that even a model could understand it.
Engineering is the art of compromise.
Lots of bragging in there about his clients vast wealth and ability to fight back.
Guess that doesn't apply to me. I can't fly techs around the country to copy my hard drive and dance the hokey pokey and do other bullshit.
They've no doubt taken millions from people who cant fight back.. Is there a tally anywhere? Or is it all "confidential".
I should also note that lawyers are duplicitious sacks of dog shit. Don't lionize this guy, he's not fighting the good fight, he's "getting a rich guy out of trouble".
I don't need no instructions to know how to rock!!!!
http://en.wikipedia.org/wiki/Eggshell_skull :)
A little bit of googling, I found this organization (hint, look at the bottom picture)
http://workforcechaplaincy.org/_wsn/page3.html
from his website http://ledfordlaw.net/
"Merl Ledford III received his AB Degree in 1974 from University of California Santa Barbara with majors in English and economics."
Something tells me, he's the model lawyer RIAA wants to avoid at all cost. Speaking of tactics, he spread his response with cards stacking against RIAA such as motion to move the case to the Fresno Branch and building up the case to defeat the cost benefit by RIAA.
[excerpt] "We should also discuss how quickly you can get your tech people here to do their hard drive inspection. Again, I would be happy to send the airplane to either Butler at SFO or Kaiser at Oakland for roundtrip convenience of you and your clients' tech people."
Just priceless!
"Don't let fools fool you. They are the clever ones."
Try Google...I tossed "thin skulled client" and got back a lot of results. After reading parts of them, I think the following is a very good description:
The "thin skulled plaintiff" principle indicates that you must take a person as you find them, even if they are particularly susceptible to a particular harm.
Do it yourself, because no one else will do it yourself. [beta blockade 10-17 Feb]
Oh Boy! :)
Fell out of my chair when I read that part.
"Confidentiality".
On Slashdot.
Something about this doesn't seem quite right to me. The grammar in this letter is should not be coming from a respected legal firm in California.
Is this truly real?
Check out the copy from his website:
> Stripped of "full service" firm inefficiencies and armed with cutting-edge technology, our clients' legal goals gets accomplished, not just discussed. Hard-hitting, high-tech litigation SWAT teams pose a greater threat to opponents than slow-moving bureaucracies, positioning our Clients' to win under the profession's customary BATNA analysis. Aggressive, attack-focused litigation encourages prompt, favorable outcomes while reducing our clients' business risk and saving time and money.
As someone has said above, the letter is major 0wnage. The RIAA vs the people is really an example of a litigation army versus guerrilla lawyers. The army may be getting some civilians along their path, but the guerrilla are winning every facedown.
http://barrapunto.com/ - News for nerds, en español
Mr. Merchant has and had no more duty to respond to attempts to "sell" him one of your clients' boilerplate, non-negotiable $3750 settlements than he has to return cold calls from pushy life insurance salespeople.
All I gotta say, is: OH, SNAP!
[*] Lyrics (c) some band, used without permission.
The bottom line is that if you bring suit against someone else, you should be prepared to get your ass handed to you. You should not be allowed to simply drop the suit once you initiate it. If the defendant is willing to fight it to the end, then they should have that option.
Maybe this would make it harder to bring suit against a well-financed opponent. So be it. A suit brought against a well-financed opponent is just as unjust as one brought against a poorly financed one if the suit itself has little merit.
The problem of bankrupting either side through the lawsuit is a completely separate issue that also needs to be addressed, of course, and as far as I'm concerned the maximum amount of damage should be limited to some large percentage of the total assets of the entity in question (for a corporation, those assets should include the total assets of all direct and indirect owners). That goes for plaintiff and defendant, of course. So if the plaintiff elects to drop the suit after having hit that limit, only then should doing so not require the assent of the defendant.
The system as it stands right now is inexcusable.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
Is this an early April Fool's joke or something?
There is no "I disagree" mod for a reason. Flamebait, Troll, and Overrated are not substitutes.
P.S. Everyone look up Visalia, CA on the map now.
I used to live there. Very nice place. I'm considering moving back.
Don't blame me, I didn't vote for either of them!
NEVER go into court without at least consulting a lawyer. Even if you think all the evidence is in your favor, you could get procedurally out maneuvered.
I never said I was smart, I just said I was smarter than you
A bit off topic for this thread but I wanted to address it:
The letter makes note of your deposition and claims that the RIAA's methods of determining the identity of the infringer are laughably unreliable. While I believe this to be true, I didn't really see that in the transcript (and yes, I read the whole log). Of course I am not a lawyer so I have no idea what a deposition is supposed to be like.
It seemed like any time you asked Jacobson a question about how the whole process comes together (paraphrasing: "How do you know the ISP didn't screw up", "How do you know mediasentry functioned properly", etc.), he would defer to another authority rather than speculate, even if the answer seemed fairly obvious, since it was nonetheless outside his domain. But everyone else seems to read that and think that they have no real answers and no viable case, whereas I read it and see how mundane and drawn out the legal process is.
What I'm saying is that if Jacobson was the only witness the RIAA and labels were prepared to offer at trial, then they would indeed have an extremely weak case. But wouldn't they also get testimony from mediasentry, verizon (or whatever the ISP was), and the other parties involved, to fill in the gaps in the witness's area of expertise? Were any other experts deposed in that case?
Evidently, the key to understanding recursion is to begin by understanding recursion. The rest is easy.
I'm not even remotely close to being a lawyer but can't you do exactly that by filing countersuit as soon as you get served? That way even if they drop the suit you don't have to drop yours.... I think.
Plaintiff can't drop the case without defendant's consent after defendant's filed any response to the complaint. That's the point at which defendant's officially begun to incur costs. Up until then plaintiff can decide they made a mistake, after that they're on the hook.
In this particular case, I have this image of the RIAA lawyers scurrying in a panic to get their voluntary dismissal to the courthouse before the target's lawyer decides to officially file a response.
Dude, I was totally with you until you dissed the American Hot Rod Association. Certainly you must realize that they're one of the most well-respected drag racing organizations in the world. It amazes me that you would lump such a geeky, gear-headed organization amongst your legitimate complaints about ridiculous copyright laws! Personally, I wish that Sonny Bono had been involved in a real crash, AHRA style, instead of colliding with a tree. Everyone knows that real drivers crash other drivers, only drunks crash into trees.
Thanks to the War on Drugs, it's easier to buy meth than it is to buy cold medicine!
From the letter:
I especially like the bit about sending the airplane - always offer to run up the costs - especially when you want to show that you believe that you have an open and shut case! Of course, it doesn't hurt to also show that you know the likely principals in the case from previous dealings. I like this attorney!
Now everyone that receives a $3000 settlement letter from the MAFIAA can just reply and get the case thrown out? WHY DID NOBODY THINK OF THIS EARLIER?
Before:
Client - Oh noes, we received a letter from the RIAA
RIAA - Thank you, come again
After:
RIAA - Oh noes, we received a letter from our client
Client - Mwoehahahaha
Custom electronics and digital signage for your business: www.evcircuits.com
Personaly I think this little tidbit near the end is a real zinger which finishes off the RIAA team.
Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court.
Read between the lines. The lawyer knows the judge personaly. The Lawyer implied the Judge dislikes mistakes and maybe dislikes dirty tactics. The lawyer implied the judge will be quickly brought up on the technical holes in the case. If the RIAA proceeds the lawyer will drive an expensive SUV through the flaws in the case to show how big they are. The RIAA will be billed for the cost involved in providing the demonstration. There will be no getting away with BS in this case. All shakey data will be exposed for errors.
The laywer didn't need to say it, but it was implied loud and clear. They got the point.
The truth shall set you free!
They were smacked down by the University of Maine, which followed the University of Wisconsin in refusing to act as the RIAA's collection agent.
I read that Purdue also told the RIAA to get lost. Is it true?
Friends don't help friends install M$ junk.
it's usually in regards to negligence -- negligence takes their victims as they come. Let's say CowboyNeal sits on CmdrTaco's face and farts. Although this wouldn't hurt a bonehead like Zonk, CmdrTaco happens to have osteoporosis (a side effect of taking female hormones), and his head is crushed. CowboyNeal is thus criminally/civilly culpable for his death.
It must be Tuesday. I could never get the hang of Tuesdays.
A $650,000 to $1.4 million dollar disk drive. Did they have to down an EMC array for evidence?
-fb Everything not expressly forbidden is now mandatory.
There are a lot of people on here that like to say that "lawyers like to draw things out because it earns more money"
From what I've seen, if a lawyer is worth his/her beans, it works out just as well if not better when the case closes fast. You close the case, get paid, and it's good for your reputation. This frees you up for other cases, so there's not really any lost profit, just more cases. I suppose there are advantages/disadvantages of either. A long-drawn case could be worth a lot of money, but it seems to me that the long-drawn case doesn't really look good for the lawyer, can be a bit of a bore, and would really suck reputation-wise if it ended in a loss.
On the other hand, one might lose a bunch of cases out of several quick ones, so that's not exactly reputation-positive either. There's also the extra amount of learning involved in pulling a bunch of extra cases, but I suppose it's my personality-type to prefer variety.
Sigh... I posted this as AC, but got modded flamebait... so, here it goes again. In some cases copyright infringement is already criminal according to US Code Title 17 Chapter 5 Section 506.
http://www.copyright.gov/title17/92chap5.html#506
The punishments violating the above mentioned code are as listed below:
http://www4.law.cornell.edu/uscode/html/uscode18/
So can we *please* stop pushing the myth that copyright infringement is a strictly "civil" offense. It just isn't, no matter how much people say it. I've pasted the actual punishments below.
2319. Criminal infringement of a copyright
(a) Whoever violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any other provisions of title 17 or any other law.
(b) Any person who commits an offense under section 506 (a)(1) of title 17--
(1) shall be imprisoned not more than 5 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution, including by electronic means, during any 180-day period, of at least 10 copies or phonorecords, of 1 or more copyrighted works, which have a total retail value of more than $2,500;
(2) shall be imprisoned not more than 10 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, in any other case.
(c) Any person who commits an offense under section 506 (a)(2) of title 17, United States Code--
(1) shall be imprisoned not more than 3 years, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 10 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of $2,500 or more;
(2) shall be imprisoned not more than 6 years, or fined in the amount set forth in this title, or both, if the offense is a second or subsequent offense under paragraph (1); and
(3) shall be imprisoned not more than 1 year, or fined in the amount set forth in this title, or both, if the offense consists of the reproduction or distribution of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000.
(d)
(1) During preparation of the presentence report pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure, victims of the offense shall be permitted to submit, and the probation officer shall receive, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim, including the estimated economic impact of the offense on that victim.
(2) Persons permitted to submit victim impact statements shall include--
(A) producers and sellers of legitimate works affected by conduct involved in the offense;
(B) holders of intellectual property rights in such works; and
(C) the legal representatives of such producers, sellers, and holders.
(e) As used in this section--
(1) the terms "phonorecord" and "copies" have, respectively, the meanings set forth in section 101 (relating to definitions) of title 17; and
(2) the terms "reproduction" and "distribution" refer to the exclusive rights of a copyright owner under clauses (1) and (3) respectively of section 106 (relating to exclusive rights in copyrighted works), as limited by sections 107 through 122, of title 17.
>If the RIAA proceeds the lawyer will drive an expensive SUV through the flaws in the case to show how big they are.
Nah, think big. He will fly one of his firm's private jets through it.
-fb Everything not expressly forbidden is now mandatory.
The deposition gets funny around page 24/25.
Jacobsen is a smart man from my university, but he doesn't come off well on paper and the lawyers just seem to be fighting eachother the whole time.
I personally think that since P2P only uploads a chunk of a file to someone, you technically didn't give them anything really useable- but that's just me.
I think it's time to write a new disk utility that instead of zeroing out MP3 file data overwrites it with pr0n downloaded from the Internet and other believable data.
I invented the music industry!
You don't hear lawyers cite settlements in court, the cite case law which means cases that the court decided. After all a settlement just means that two parties came to an agreement, has nothing to do with what the actual law might be. You can threaten to sue me for breathing and, though you'd never win in court, I can still choose to settle with you beforehand. I would be stupid to do so, but I can if I want. Doesn't mean a court will give that any weight.
You got the labels in there right at the start - that is a very good start!
Is there any chance of listing one or two bestselling artists from that label as well ?
Please note that the following artists revenue is helping to fund this action by Sony BMG and the RIAA:
Good Charlotte
Shakira
Avril Lavigne
Christina Aguilera
Pink
Justin Timberlake
Evanescence
By buying anything from these or any other Sony BMG artist, you are helping to fund these lawsuits. Please stop!
"Then they'll try to draft something saying that any end-user of an ISP account is liable for all copyright infringement that goes on through it, including that of 3rd parties and minors."
I should think that would be quite amusing and short-lived. You could just go trolling for unsecured wireless networks in the rich area of town, and download to your heart's content. The RIAA would either never sue, or sue and get bitchslapped by people with lawyers as expensive as the RIAA has.
You have tried to support your argument with faulty reasoning! Go directly to jail; do not pass Go, do not collect $200!
You left out a bit... FOAD
Which makes it not really a victory for Mr Merchant.
And it doesn't set a bad precedent against the RIAA either: confronted with a choice between paying a settlement of $3750 or avoiding a settlement by paying your lawyer $6880.25, most "rational" people would probably chose the settlement. And that's all the RIAA needs.
And it's not a model letter either: the "emotional distress" argument is specific to Mr Merchant, and cannot be reused by other people. And most caselaw cited is specific to California.
You're absolutely correct that we need to turn the law against them, but the solution is not to hack their wireless networks. It's rather a change in the way our P2P programs work (or perhaps in the way infringing files are bundled), what one might call a "pirate handshake."
Here's the way it would work. The RIAA has to catch people red handed in order to make any sort of a case against them, which is easy to do because all they need to do is join the swarm and grab the infringing file from the unsuspecting mark (using BT as the example here because that's usually the way it goes down). Some people have often had the idea that there's something slightly shady about this because it means that in the process of downloading the file, the RIAA must also be uploading it to others, thereby becoming complicit in the distribution. Alas, there is no legal problem here, because one assumes the RIAA has been authorized by its members to distribute their materials in order to bust others. So you can't get them that way.
There is, however, a speck of useful logic there. The RIAA may be authorized to distribute its own crap over P2P networks, but it's certainly not authorized to distribute my crap. If it came to light that they had done so, assuming that I had a registered copyright on whatever it is that they distributed, I could file for damages against them. So one might have the idea to zip together every piece of infringing material with another piece of infringing material, where the second one is owned by someone that has no intention of suing the average user, but will drag the RIAA through the mud if it ever comes out that they passed the file around. We might call this a weak form of pirate handshake.
Weak, of course, because there are ways around it. The RIAA might just make sure to leech the whole file, thus avoiding any sort of redistribution, or perhaps they could figure out how to only distribute the pieces of the file that they have the rights to (not sure what this would mean in the case of a zip file - I think they're just encoded in a pretty simple way, so you may be able to localize one piece).
The strong form would be to build the handshake into the P2P client. I absolutely refuse to send any sort of data to you, other than the handshake request (which would probably be the very same file as the response), until you send me the copyrighted (but perfectly safe for anyone but the *AAs and their agents) file. Only once I recieve that file and check its contents to make sure that you have now infringed against this benevolent third party do I agree to send you even a single bit of whatever it is you wanted to download from me.
It is crucial that this copyrighted file be a third party's, offered without an explicit license to redistribute, by the way, and it must have some artistic value (to qualify for any copyright protection at all); if it was my own file or if the entire reason for its existence was to act as insurance against being taken to court for copyright violations, the courts might not decide to grant it copyright protection on the grounds that it's clear it's only out there to mess with their rules. I don't know if there's any legal precedent for doing this, but it seems like the type of thing that might offend a judge, and at some level, if you piss off a judge, you're screwed. Likewise if the file was offered with a license that granted, for instance, the right to redistribute as long as you are not using it to enforce copyright laws, the courts might take offense. The key would be to find an independent band or author that was sympathetic to the cause and get them to make a gentleman's agreement to:
We should post these EVERY RIAA story that is put on slashdot.
Read radical news here
Interesting. Some people have been trying this already I think.
The big problem is, it isn't like it's "all of us are good friends, versus RIAA". (Though it'd be nice). It isn't safe (legally), to have a whole bunch of people distributing someone's copyrighted work without explicit permission just on the off chance the RIAA will distribute it and then get sued. Because the person who made the work can then turn around and sue all of his "friends".
"It used to be that you could say to a secretary "type a letter about X" and you'd have one. "
Well yeah, that's when people would basically work for nothing and if you offered 25 cents more than minimum wage you'd get skilled secretarial people.
But people with those skills now (women) are now becoming attorneys themselves and so what you're left with is not secretaries (there are no more secretaries), but with typists.
And a lot of this happens because attorneys are notoriously cheap when it comes to paying for anything except their own salaries. If your company has a contract to do something for a large attorney's office, you'll find out they think everything costs too much, that you get challenged on every hour of billing (what do you mean you charge me when I call?), etc. This is in stark contrast to their own high billing rates and providing no real way to verify what they're billing, and oh by the way, every time one comes on the phone and says "hi", you get billed for $50.
It's pretty comical.
One such "pirate handshake" has already been implemented, actually, though not directly into P2P-clients to my knowledge.
It's called Monolith, and it's basically about merging two copyrighted files, so for the RIAA to claim infringement it must also claim ownership of the other copyrighted file, one that it does not neccesarily own.
http://monolith.sourceforge.net/
I would attack the problem from the software stack end.
P2P Software license v0.1
You are free to use and distribute this software subject to the following provisions;
a You do not use the software to track, investigate or persue other users, legally or otherwise
b You are not associated or affiliated with the publishing industry in any way, shape or form, and do not act on their behalf.
c You do not assert copyright over any materials that may be transmitted by this software, nor act on the behest of others that do.
d you do not pass information about other users of this software or the network protocols employed to a third party, over and above the normal operation of the software.
e you agree to finance any and all legal fees of any user of this software, who is subjected to prosecution as a result of your use of the software over and above the normal functioning and behaviour of the software.
Let them write their own clients!!!!
- som
You could also make it so that the client has built in ways of faking any and all data that could be used to prosecute people. If they then try to use it, you can simply demonstrate how simple it is to fake the evidence they are using with nothing more than the program they used to gather it.
...being the opposite of conflict (fighting) must therefore mean "making sweet love to"
If you don't risk failure you don't risk success.
Please invade the RIAA headquarters, that'll teach them a lesson.
okinawa japan
FUCK THE RIAA! HAHA! Guess you boys aren't above the law
unfortunately, all this means is that your client will be incompatible with the GPL, and the FSF will clean-room the whole thing in order to make a free version =/
being vague is almost as cool as doing that other thing...
You have to buy a new one (so that you don't overwrite anything), copy (safely!) the information over to the new drive without damaging the contents of the old one. Note: this takes time out. How much would BG bill for three hours of outage? Then you have to keep the requested drive safe and incorruptible (you can't just whack it in a safety box, you need to prove provenance and the storage didn't allow you to spoil evidence).
Then you need the secure courier and traceable logs to get the drive to where you will process it for evidence, with impartial observers and oversight (and this oversight being recorded and kept incorruptible).
That comes to a lot of work.
million easy.
Actually, what he suggested is that it could be moved "by stipulation and order" and then withdrawn. I take that to mean that both sides mutually agree that the case is moved, and the court orders it so. The issue of whether to withdraw would be handled afterwards, through the new court.
He was just taking an opportunity to point out a few other things they'd done wrong and offer "friendly" advice on how to fix it. If they actually intended to withdraw (with or without prejudice) there'd be little point in stipulating to the change of jurisdiction first, which I think Ledford knows-- he's just pointing out that not only were they ill-prepared to win, but that they were also procedurally deficient as well.
http://riaa.justgotowned.com/
Possession of the CDs does not stop RIAA trying to prosecute you.
If it did, the solution would be obvious.
But that's not the purpose of the RIAA extortion at all.
One problem: judges and juries don't seem to give a crap about the technical side of things. As far as the courts seem to care, the RIAA does not download the files, rather it merely snoops the IP address swarm. Sure, technically they do download part of the file, but if copyright law was that technical, wouldn't copying web pages into cache be illegal?
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
The only problem with this, at least in the USA is you can't sign away your right to sue people. I'm sure there are limitations on that, (maybe it's sue for negligence or physical harm or whatever) but I'm guessing your EULA wouldn't hold up in court.
"Growing old is inevitable; growing up is optional."
They may not be able to buy themselves a criminal law, but they do have a compelling argument for a new law.
Think about it: Like it or not, music is protected by copyright. Like it or not, offering up a copyrighted work for distribution is not allowed. This is how it is supposed to work.
If the RIAA is not able to stop folks from distributing their labels' copyrighted works, they arguably deserve a law that helps them. Otherwise, what good is copyright law if there is no legal way to enforce it?
All of the slashdot arguments are along the lines of "don't sue your customers" and "sharing files makes me buy more CDs". Well, that all may be true, but it's not the point. The point is the RIAA-represented labels own the copyright and that means they get to decide how the copyrighted work is distributed, whether that is in their best interest or not.
I draw a parallel to one of my businesses: Landlording. Every so often, a tenant paints his apartment even though his lease prohibits it. If, when the tenant moves out, the walls are painted Putrid Pink instead of Contractor White, I'm going to charge him for it and sue (yes, sue my customer) if I have to.
Like slashdotters, who think that filesharing helps the record labels, I'm sure my tenant thought painting the walls Putrid Pink enhanced the value of my apartment. Unfortunately, I own it, and it's my decision what color gives it the most value. Just like the record labels own the rights to the songs, and they get to decide what distribution is and is not to their benefit. Just as I have decided that an apartment painted Puke Fuchsia is not to my benefit, the labels have decided that P2P distribution is not to their benefit.
They have the right to make that decision, and they ought to have the right to enforce it.
They don't grade fathers, but if your daughter's a stripper, you fucked up. --Chris Rock
It doesn't sign away their rights to sue. It simply doesn't grant them a license to use the client in the first place, and thus if they do use illegally use the client and present that in court they've already violated someone elses (not the violator, but the authors) copyright and become liable for litigation from the code author. Or are you saying I can't write a license that basically says "Everyone can use this apart from the RIAA"?
"The great thing about multitasking is that several things can go wrong at once." -me
Bitch slap!
It's called Monolith, and it's basically about merging two copyrighted files,
Looks like a form of encryption with an arbitraty length key. Just that the description uses non standard terms. "Element file" equates to "plaintext"; "Mono file" equates to "ciphertext" and "Basis file" equates to "key".
That legal letter to the RIAA's law firm is rife with spelling and grammatical errors. While it is not an official filing, I would nevertheless be loathe to use an attorney, no matter how creative, who could not properly write and spell. It is at the very least unprofessional to send a letter in this state as a matter of professional correspondence.
I just couldn't stop myself from posing that
-- "At Microsoft, quality is job 1.1" -- PC Magazine, Nov. 1994
I think you may be able to write that license ("everyone can use this apart from the RIAA" but I don't think you can dictate what it's to be used for. Certainly you can mandate that if it's used in a certain manner other things need to be done, but especially your first item is suspsect to say the least.
I don't believe using someone's binary executable (assuming you produce one) constitutes "violating someone elses copyright" because the executable presumably would be freely distributed or sold.
Either way, it still doesn't get around the fact the tool is being used to illegally tranfer copyrighted materials and the owner of the copyright is legally allowed to pursue infringement.
I think you'd also find it difficult to force all P2P coders to follow your license, though I might be wrong about that. For that matter the RIAA (or police or whomever) could write their own P2P client that interacts with other clients and would totally circumvent your solution anyway. Not everyone uses the same client, right? Or are P2P networks essentially "private" networks and not interoperable with each other? (I really don't know so it's just speculation on my part that some P2P clients can communicate "across networks" with dissimilar clients.)
"Growing old is inevitable; growing up is optional."
OT for the main thread, but I studied bullies a bit.
..." They hate spending the day thinking about it. It comes back to them each time they bully someone. In the best case they realize their problems and leave others alone.
;)
I must agree with Denoir. In my experience bullies are not cowards, except for being under the submission of another bully themselves, usually an abusive parent.
It's true that facing them only mean that next time they will leave you alone, but they continue their bullying ways.
As for them running at first blood, this is actually rare and highly dependent on the bully's stamina. When you get beaten by your drunken dad 3 times a week, you can take a fairly good beat in the schoolyard without really caring.
When I realized that, (thru a friend after his dad broke his arm in a drunken rage) I found out that most bullies can be dealt with by carefully chosen phrases about their personal and family problems. "Your dad beats you and you take that on others? No? What is it then?
Now to stay on topic.
- Who is RIAA's bullies? Stockholders.
- Key phrase to use in the fight: "Your stockholders beat you in the boardroom?" "Your sales are down so you get back on a 10 year old?"
OK, not very effective in the courtroom
are you kidding? what about waivers for dangerous leisure activities like skydiving, or renting jetskis? what about signing release forms for appearing on television.
you bet your ASS you can sign that particular right away.
"I think you'd also find it difficult to force all P2P coders to follow your license, though I might be wrong about that. For that matter the RIAA (or police or whomever) could write their own P2P client that interacts with other clients and would totally circumvent your solution anyway." Thats correct. But it makes life harder if all the open clients adopted a similar license. The RIAA would also have a hard time explaining to the court "what the offender did and saw" in order to commit the offense without using the same stack as the offender. No its not bulletproof, its obfuscation. If the network were made private, I am sure that you could implement some kind of DRM to prevent non authorized clients connecting... perhaps
I think he meant the Audio Home Recording Act.
I like the thought though -- write your own P2P software, RIAA!
Those waivers don't hold up in court, ask any lawyer. You can sign it away, sure. It just doesn't have any significant weight if you actually decide to sue. It will give them some ammunition that you signed a waiver and still participated in whatever activity willingly, but it doesn't mean you can't still sue them if they did something wrong and you get hurt.
"Growing old is inevitable; growing up is optional."
I think that in making a web page publicly accessible, the permission to cache the page for the purposes of viewing it is implied. The difference being that the RIAA (or other agents of the recording industry are not the ones making the music files available to the public).
It's not enough to bash in heads, you've got to bash in minds. - Captain Hammer
It was named for the senator who wrote it, not the U2 singer.
I see another situation which could turn out to be a win-win one. If you build into some P2P protocol that the implementing client needs to display a EULA (which comes from the tracker or equivalent), and the EULA from some specific tracker states that anyone affiliated with the RIAA is disallowed from using the tracker, then what would happen if the RIAA actually did make use of the tracker? Wouldn't that bring about either the end of RIAA lawsuits (once every tracker uses the EULA scheme) or the end of EULAs (if the RIAA wins in court)?
According to this, they have gone 180 degrees from their former statement. They will go to the cost of tracking down IP addresses, deliver the "settlement" extortion email and deliver names if demanded by subpoena. Worse, they are telling students to cease using and remove all P2P programs, as if any use would make the person a target. This is a disappointment because the earlier quote made it look like they were going to ignore the whole thing.
Friends don't help friends install M$ junk.
# nslookup 130.111.241.53
Name: roppleer4.umeres.maine.edu
Address: 130.111.241.53
Looks credible to me; can't just go trusting random people who claim to work at just the right place, though (there's that one troll who claims to work at Nintendo, for one, used to claim to work for Sony).
Hopefully FishWithAHammer will be nice and give anyone who picks up the letters a tip to ask you for a referral, if at all possible?
Sure, but at the same time, if the RIAA is intentionally and willfully releasing their content via the same P2P distribution channel as where they are actively suing users, it does present a bit of a legal problem. "I got it from the RIAA" would be a valid defense.
As always there is a chicken and the egg problem though, someone needs to first send the RIAA investigator a piece of the file before the RIAA can redistribute it, so potentially that first person would still be a target.
Give a man a fish, he'll eat for a day, but teach a man to phish...
On page 62 the expert witness (Q) made a goof..
22 A. The IP address identifies the
23 computer or device that is connected to the wide --
24 to the internet.
25 Q. And the device might be a network
62
1 Jacobson
2 card?
3 A. Generally network card doesn't have
4 an IP address. The computer is what has the IP
5 address.
And I guess the IP address for the computer was 127.0.0.1...
How about:
In pseudo-lawyer-speak: Usage of this software indicates you agree to indemnify against litigation for copyright infringement of any files you upload or download any other users who upload to you or download from you any files.
What I mean to say: Using this means you can't sue anyone who you share to or from.
To me this looks like a pretty good tactic with the clearly innocent. As long as there is clear evidence that the prosecution is misguided (like the Merchant's squeaky clean hard drive), a similar letter would probably lead to an immediate dismissal. I'm curious if lawyers would possibly take such a case "on spec" taking a cut of the settlement when (if?) the RIAA settles. Any legal eagles know what the problems might be for such a course of action?
Of course, the only way to call a bluff is to put more money into the kitty. Following this route could get expensive real quick, if you're sitting in a dorm room surrounded by CDs labeled with a Sharpie and a copy of Kaazaa on your hard drive.
===== Murphy's Law is recursive. =====
True -- But, I'd bet you could make a pretty good legal argument that due to the nature of P2P clients (especially torrents), uploading content to one user includes an implicit license to distribute that material.
This would be a rough analogy to uploading a file to a web hosting package, then suing the web server operator because they distributed the file.
And while true that the RIAA may not have the right to give me distribution rights, whether or not the RIAA has the power to grant that right or not wouldn't enter into it, since it's not likely RIAA's members would go after the RIAA.
Give a man a fish, he'll eat for a day, but teach a man to phish...
I think that's really missing the point. What you are suggesting would be basically giving legitimacy to their method of "doing business" and at the same time admitting that you are doing something wrong. This is the death throes of an outdated business model. Whenever an entity becomes dependant on lawsuits for a mesurable percentage of its income, it no longer has anything to offer and either needs to adapt or die. *cough* *SCO* *cough*
Really, I'm not out to destroy Microsoft. That will just be a completely unintentional side effect.--Linus Torvalds
You are right. Many people have signed waivers then sued. As long as you were wronged by them you can still sue. However, if they didn't do anything wrong and you got hurt randomly or by yourself the waiver says that its not their fault, which is pretty common sense anyway.
unzip; strip; touch; finger; mount; fsck; more; yes; unmount; sleep