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Judge Says RIAA "Disingenuous," Decision Stands
NewYorkCountryLawyer writes "Judge Lee R. West in Oklahoma City, Oklahoma, has rejected the arguments made by the RIAA in support of its 'reconsideration' motion in Capitol v. Foster as 'disingenuous' and 'not true,' and accused the RIAA of 'questionable motives.' The decision (PDF) reaffirmed Judge West's earlier decision that defendant Debbie Foster is entitled to be reimbursed for her attorneys fees." Read more for NewYorkCountryLawyer's summary of the smackdown.
The Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true." This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly.
The Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true." This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly.
It's nice to see a judge finally start applying some "put up or shut up" logic to this mess. Actually this looks more like a "Put up AND shut up", but I'm willing to run with that as well.
I'm a fiscal conservative, it's a pity we don't have a political party anymore
(IANAL)
Millions?
Maybe I missed it, but if the RIAA complied with the order to show their attorney's fees, does that mean they're available in some accessible court document somewhere?
Revoke RIAA member's corporate charter? Invalidate their predatory contracts with artists. Thile we're at it, eliminate Ticketmaster. This leaves room for a non-profit system for promoting and desseminating music. We need a blue-collar musician class.
... but politicians can. How much does a Senator or Representative go for, these days?
Those who can, do. Those who can't, sue.
We need a reform whereby when litigants have dramatically unequal net worth, the plaintiff is required to reimburse defendant's lawyers up to the amount that they themselves spend on legal services. The plaintiff can then argue for whatever damages they can convince jury the defendant can pay based on their income level. The same should hold true in criminal cases. When prosecutor feels the crime is grave enough to justify calling dozens of expensive expert witnesses, surely the suspect should be given a chance to prove themselves innocent. Justice shouldn't depend on your bank account, especially since we all know how many rich guys are crooks.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
How can they truly stop it, though, if it's open-source? All that would need to happen is for one person to have downloaded the source .tar and distributed it far and wide, unofficially. Let a programming team in a foreign country pick up the project and keep it alive.
This is why I really wonder about the sanity of some of the developers of these ripping apps--if you know there's a real, tangible threat from the industry, why-oh-why do you never release your source? DVD Decrypter, DVDFab, and DVD Shrink are all (at least, at one point I thought they were) closed-source even if some are/were free.
I understand the desire for notoriety in the warez scene, but sometimes the greater good must be served. Open the source.
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The RIAA is a cure that is worse than the disease, piracy, that it fights. Frankly, I hope they do end up paying out the ass for their McLawsuit business model. That said, it always seems that arguing fairness on digital media is like arguing abortion: It is difficult to find middle ground, let alone win, an argument with a true believer.
.doc, .avi, .mp3, or other format and choose the correct interpreter in addition to the language barrier.
My own stance is often conflicted on digital media. I've never deluded myself into thinking I'm striking a blow for justice by downloading a game, software, song, show, etc. gratis. But the often clumsy DRM does sometimes make me regret a legitimate purchase. With BT games, I can take my machine to a LAN party without bringing a single disc. With a legitimate game, I'd either have to bring the discs or patch it as if I had obtained an illegal copy. Hell, I wanted a few songs right away to exercise with, so I downloaded the MSN service and bought a few bucks worth of songs: Easy as pie...until I restore my system, or until MSN folded into URGE without properly supporting legacy customers.
Even this far into the Internet age we still haven't developed proper analogues to physical media. You can loan a book to a friend; the only DRM is the security sticker removed at the store. How do you easily loan an audio book to a friend, without making it easy to endlessly provide perfect copies? The business model needs updating, but to what? As it stands, we are buying encrypted paper books that can only be read with a cipher key licensed to an individual.
But even that metaphor breaks down easily, since paper books employ near-universal formats that anyone literate in the language can read. Since the format is interpreted by the human mind, not a computer, any irregularities in the format (i.e. manga style graphic novels) can be adapted on the fly. We don't have to consider if a book comes in
Ease of use is key to adoption, but what is the balance between business and consumer? Is it fair that iTunes limits players or is it fair to demand that iTunes support an open format? Damned if I know the answer.
Also remember that both the movie & record distributors have been caught repeatedly doing some very funny accounting in reguards to what makes a 'profit'. Most of the contracts issue an advance followed by royalties after a net-profit has been gained.
ISTR that a producers new Ferrari was once considered an 'expense' in calculating net profits. For a modern example of this look no farther than New Line Cinema & Peter Jackson - LOTR1 is showing $100M+ discrepency in the audit. That's a lot of money to be 'disputed' as an expense - like 2 more movies. Worse, although it's in the contract, NL is trying to bar Jackson from auditing the books on the other 2 movies. We are talking potentially 1/2 of $1B in profits being swept under the table & hidden from the 'Artists'.
The RIAA and MPAA individual members have all, without one single exception, lost at least one suit, filed by an artist or multiple artists, where the corporations were caught concealing the true status of profits, under-reporting gross or net take, and/or over-reporting expenses, billing for expenses not actually incurred, double, triple, and even quadruple billing. In several of these cases they have committed such large numbers of 'convenient mistakes all just happening to fall their way' that the judges deciding those cases have freely used terms such as "egregious", "willful" and even "rising to a level that is undoubtedly criminal" in their decisions. Last I heard how the law is supposed to work, contract fraud is supposed to be illegal, even with no armed force involved.
Yes, you could possibly justify an anti-trust argument, but how about this broader one. If artists are still entering into contracts with a group of companies that have all been caught cheating on contracts, there must be some unfair advantage to keep them doing it. Whether it's a monopolistic trust that leaves them no better options, or the group otherwise enjoys selective immunity from paying the full price of their contract violations is irrelevant. The government could vigorously prosecute where conduct crosses the line to criminal accounting practices, lieing under oath, and so on, and this would help a great deal whether there is a proven monopoly or not.
Sure, some of it, at least a little, can be blamed on various artist's stupidity. Put a clause in your recording contract that says there will be bowls of all green M&Ms available at all times on the soundstage, and you can expect to pay very dearly for it. Fair enough, but not nearly all the artists are that stupid. Which seems more likely, that there are so many artists too stupid to realize the risks, or that many of them do know they are going to get screwed, but feel like all better alternatives are closed off to them, and hope to be the one who isn't screwed too badly.
Prior post amounts to saying "show me a successful white collar criminal who turned to blue collar methods when they didn't have to, or agree I'm right!" I'm rather surprised you're rebutting only one part of it and letting the rest stand.
Who is John Cabal?
"It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales."
It's much worse than you think. I'm at the director level for a company that makes PC peripherals. I'm in charge of $40MM of business a year, yet my employment contract (which I was "forced into" in the same sense that artists are "forced into" recording contracts) includes a salary that isn't one hundredth of that amount. I've probably been responsible for half a billion dollars of sales, yet I'm firmly in the middle class.
I believe that everybody should pirate as much music as their hard drive will hold, if they feel that it's the right thing to do. "I pirate to save money" or "I pirate because I give fuck all about respecting the rights of somebody whom I haven't even met" are good rationalizations for doing so. Inequities in contract negotiations aren't a particularly good rationalization, as that's something that we all have experience with -- on both sides of the desk.
Sitting in my day care, the art is decopainted.
Correct, but as someone a few posts up said, politicians can take on this role. Lessig demonstrated in Free Culture that, throughout history and today, industries will seek to artificially preserve their irrelevant business models via the courtroom and our Congress.
And for the past decade or so, they've been succeeding.
Evidently, the key to understanding recursion is to begin by understanding recursion. The rest is easy.
Yes, that's how it used to work before music went digital. Record labels were abusive back then, too, and we still see the occasional case of some formerly well-known but now downtrodden artist suing a label for unpaid royalties. Not only are the contracts pretty hardball on artists at the time of signing, but labels also have the ability to illegally drop their end of the contract if the artist doesn't take off -- if you're not selling albums, you certainly don't have money to hire a lawyer, do you? Anyway.
The industry of identifying and distributing recorded music no longer requires the billions of dollars currently invested in it. Recording is cheaper than it's ever been -- not that that was responsible for most of the markup in the first place -- and the problem of distribution is more solved than the RIAA would care to discuss. If it weren't for the RIAA's additional efforts to stifle online and independent radio, and other forums for finding new music, that source of value in the industry would also be considerably leaner.
Now, identifying who's good and who sucks has value. We're used to seeing creative content spoonfed to consumers by some industry, since that's how music, movies, and print publishing have always been. But what about websites? The Web is a content industry that sprung up without an industry to be its cheerleader: You wouldn't expect a WWWAA to select the "best" websites for us, advertise them, and tack on a commission for the service -- and still be the primary way to access web pages. You can use a search engine, can't you?
It should and will be the same with any digitized content, eventually. A combination of Musician's Friend and Google can effectively replace 95% of the existing recording industry.
However, musicians still often seem a little obsessed with the glamor of the old way. It's not as fun to tour in a beat-up van for years and know you'll never be on Cribs. That's not hot. We like watching a few lucky musicians become stupidly rich, then maybe realize they don't actually have that much in the bank and go broke 3 years later. The old content industry is much better at delivering tabloid material and meteoric rise-to-fame, crash-and-burn stories, the ones that let one-hit wonders live like Al Pacino in Scarface for exactly 18 months, nail twins, and burn their own mansions to the ground. That's why I learned guitar in the first place. It's probably why most people pay attention to popular music. We'll have more independent music in the new digital era, but we won't have the flagrant, unsustainable insanity that piques the public interest. E! will die.
I hope internet radio isn't part of the new and unexpected threat, since recent changes in royalty rules (retroactive to 1-Jan) are going to put most of those independent outlets off-the-net.
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A unique combination of generations of producers, lawyers, organized criminals, and the congressmen and senators that they bought have worked hard to create a virtual monopoly.
What the RIAA...MPAA & other outdated business models fail to understand is the role history will play in their demise. The prime example is that of rail & bus passenger travel in America. Any question about this...look at the train/bus routes & the cost of traveling these ways 20-50 years ago.
Don't worry about the world coming to an end today. It's already tomorrow in Australia. - Charles M. Schulz
The whole issue has nothing to do with artists and everything to do with corporate business. One small change in copyright law would completely eliminate much of this. Rewrite the law so that copyrights cannot be sold or inherited and instead reside with the artist for the artist's lifetime. Artists can license rights, possibly even exclusively, so a corporation can make money if so inclined, but the license cannot be perpetual. Allow no organization to own a copyright, since by definition organizations are incapable of creative work - a business or arganization can fund it, but because a business is a fictive individual, bar it from ever being able to claim a copyright. Better yet get rid of the idea of applying the same rights to corporations that individuals have.
------ The only greater hazard to your liberty than n politicians is n+1 politicians.
Actually, I think it's kinda sad that the GP, easily the most insightful post I've seen in several weeks on an RIAA thread, is rated funny, and that he will get no karma and little respect for his ironic insight.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.