RIAA Trying To Avoid a Jury Trial

Joe Elliot writes "Faced with a jury trial set to begin on October 1, the RIAA has filed a motion for summary adjudication of specific facts: that the RIAA owns the copyrights to the songs in a file-sharing case; that the registration is proper; and that the defendant wasn't authorized to copy or distribute the recordings. If the judge rules in their favor, Ars notes that it may turn into a Novell v SCO situation where the only thing left to be decided are the damages. There are some significant problems with the copyright registrations — they don't match up. 'Thomas argues that since she lacks the financial means to conduct a thorough examination of the ownership history (e.g., track the ownership of "Hysteria" from Mercury to UMG) for the songs she is accused of infringing the copyright to, her only opportunity to determine their true ownership is either via discovery or cross-examination at trial.' Ars also notes that the RIAA's biggest fear is of losing a case. 'A loss at trial would be catastrophic for the RIAA. It would give other defense attorneys a winning template while exposing the weaknesses of the RIAA's arguments. It would also prove costly from a financial standpoint, as the RIAA would have to foot the legal expenses for both itself and the defendant. Most of all, it would set an unwelcomed precedent: over 20,000 lawsuits filed and the RIAA loses the first one to go to a jury.'"

Comments

Good story

[NewYorkCountryLawyer]

Good story by Ars Technica.

Re:Good story

[Anonymous Coward]

And the award for understatement of the year goes to...

It would give other defense attorneys a winning template while exposing the weaknesses of the RIAA's arguments. It would also prove costly from a financial standpoint, as the RIAA would have to foot the legal expenses for both itself and the defendant.

Hmm, destruction of your whole business model, financially costly? Really?

Re:Good story

[hardburlyboogerman]

BY all means go to trial.That way,The RIAA finally get their ass ripped to shreds in court and puts an end to the music nazis.
BTW,excellent article.

Re:Good story

[Dimentox]

Whats really cool is if they get a group of "Peers" like they are supposed to do and this guy happens to be a slashdotter, could you imagine a jury of slashdotters in this case? I hope they do go to court and i hope they have people like us on the jury. Its about time the RIAA stop extorting money and actually try to rework their business model. The thing with the riaa is we dont need them any more. In this day in age we have digital recording studios at home. They are like vicious animals trying to stay alive. Their actions show their desperation.

Re:Good story

[stickystyle]

Yes, lynch mob juries are always a good thing. :-/

Re:Good story

[Anonymous Coward]

I agree with what you're saying, but wouldn't that be grounds for a re-trial/mistrial or at least getting the juror removed from the jury? I thought jurors were supposed to be impartial and should decide a verdict based on the merits of the arguments.

However, being a slashdotter, you'd know that most of the evidence is bullshit and does not prove who infringed the copyright in most cases.

Awww.. now my brain hurts.

Re:Good story

[Cowclops]

Ray Beckerman has the first post on a legal topic and it gets modded down as redundant? It may not be insightful enough to warrant being modded up... but modding an early post by an expert on the subject as redundant is just stupid. Good thing for metamodding.

To make this comment not a gripe in whole, it does seem quite possible that the RIAA could avoid the trial by jury silver bullet in this case, if the defendant was in fact file sharing and they have "good" proof. Not all the defendants are dead, children, or too old to own/know how to use a computer.

Still, the writing is on the wall. They won't get away with extortion forever.

Re:Good story

[Mikkeles]

'Whats really cool is if they get a group of "Peers" like they are supposed to do ...'

I thought the peerage had been eliminated in the USA!

Re:Good story

[someone1234]

A single lost case won't destroy their business model, like for SCO.
But surely would make future litigation more costly.

Re:Good story

[Anonymous Coward]

Hmm, destruction of your whole business model, financially costly? Really?

Not if your business model is fatally flawed and/or obsolete.

The fact is that the labels' current business model is untenable. Fifty years ago it took LOTS of money to make a record. Today it only takes a couple thousand; just about every local band (link is to friends of mine) in Springfield has at least one CD recorded in a studio and professionally duplicated.

They don't HAVE to sell a million to make a profit - the things only cost a buck or two apiece, anything above that is profit, so long as they're sold at the bands' shows.

The RIAA labels' only current hold on music is that they still control radio and empty-v. THAT is why they killed internet radio and are trying to kill P2P - they can't control it and keep the indies off. These two outlets are the indies' meal tickets and the labels' worst nightmare.

If you're trying to find, say, a live version of The Station's song The Fog on Kazaa (say someone told you about them), you're likely to find a Radiohead song by the same name, and get yourself sued. But the labels' fear is that you'll be looking for Radiohead's tune and find The Station by mistake. You buy their two CDs (or downloads from iTunes) and you no longer have the money you spent on those two CDs and now can afford one less RIAA CD, since they cost twice as much as most indie CDs sold as shows.

This isn't about "piracy", it's about destroying the competetion.

-mcgrew

Re:Good story

[xtracto]

But the fact is that, when you are metamodding you will only likely see:

"good story by ars technica"

Moded as: redundant.

The comment by itself certainly does not provide any insight and is no interesting.

Re:Good story

[Andrewkov]

Yeah, I can imagine how this would go:

Judge: Now we will hear comments from the jurors..
Juror #7: (jumps to feet) FIRST POST!!!!
Juror #2: Powned!
Juror #5: Common guys, -1, off topic.
Juror #12: In Soviet Russia, first post owns you!
Juror #2 snickers ...

Re:Good story

[NewYorkCountryLawyer]

Ray Beckerman has the first post on a legal topic and it gets modded down as redundant? It may not be insightful enough to warrant being modded up... but modding an early post by an expert on the subject as redundant is just stupid. Good thing for metamodding. To make this comment not a gripe in whole, it does seem quite possible that the RIAA could avoid the trial by jury silver bullet in this case, if the defendant was in fact file sharing and they have "good" proof. Not all the defendants are dead, children, or too old to own/know how to use a computer. Still, the writing is on the wall. They won't get away with extortion forever. Thanks, Cowclops. I guess I brought it on myself, though. I was shocked that I happened to go to Slashdot, find a post linking to a story I'd just read last night, and find that the story just went "online". giving me probably the first chance I've had to be the first commenter. Unfortunately, I couldn't think of anything pithy to say, or any important links to throw in, since Eric's Ars Technica story had already linked to my story linking the court documents.... so I jumped in and said the only thing I could think of to say at that time in the morning (I hadn't had breakfast yet)....which was that it was a good story. So I deserved what I got. Meanwhile, as for the RIAA.... they will NEVER go to a jury trial in any of these cases. The only reason there is a jury trial in civil cases is that there are CONTESTED issues of fact. There is no contested issue of fact that the RIAA will ever win. I would love to see this case get tried and see them get their butts handed to them, but they are cowards and will never go that route. If they can't get "summary adjudication" -- which I predict they can't because I think the judge is much too smart for that -- they will move to voluntarily dismiss their own case, as they did in Capitol v. Foster, Interscope v. Leadbetter, Priority Records v. Candy Chan, Elektra v. Santangelo, and others.

Re:Good story

[NewYorkCountryLawyer]

But the fact is that, when you are metamodding you will only likely see: "good story by ars technica" Moded as: redundant. The comment by itself certainly does not provide any insight and is no interesting. I admit it was an uninteresting comment. I was really just kind of trying to tell people I was going to be reading this thread, and couldn't resist the opportunity to put in the first comment.

But "redundant" is the wrong terminology; if it's the first post it couldn't be redundant.

But if I were the moderator I might have done the same thing -- there are only 4 negative moderation choices, "Troll" "Flamebait" "Redundant" and "Offtopic", and the comment was really none of those.

So I think, given the limited choices, the moderator did the right thing and I do not fault him or her in any way, even if it did hurt my feelings.

Re:Good story

[Cowclops]

I just think that in general, modding down should be reserved for obvious abuses of the posting system. When I read the exact same obvious sentiment 4 times and somebody still bothers to post the same sentiment a 5th time, that would probably warrant a "redundant" mod. And obviously GNAA type crap should get dropped to -1. But, a first post shouldn't EVER be modded redundant... and if its not flagrantly offensive it probably shouldn't be modded down at all. The right thing to do is nothing at all... don't mod it up, don't mod it down, just leave it at 1 or 2 or whatever. No reason to penalize somebody just because their observation wasn't earth-shattering.

Re:Good story

[Net_Wakker]

I dare say, seeing how this is slashdot, where most commentors don't seem to actually read the story, having a proven-knowledgable-about-the-subject-matter person tell you in a first post that the story is actually good is, indeed, worthy of modding "informative". It is most certainly NOT redundant, or troll, or offtopic, or flamebait.

Re:Good story

[NewYorkCountryLawyer]

I dare say, seeing how this is slashdot, where most commentors don't seem to actually read the story, having a proven-knowledgable-about-the-subject-matter person tell you in a first post that the story is actually good is, indeed, worthy of modding "informative". It is most certainly NOT redundant, or troll, or offtopic, or flamebait. I'd say thank you, Net.... but I'd probably get modded down as being "offtopic".

Re:Good story

[Workaphobia]

You, sir, have made my day.

Re:Good story

[Brownstar]

The story was linked to in a Slashdot article. Of course it's a good story, otherwise it wouldn't get past the editors and make it to the frontpage.

So pointing it out is redundant....

(and yes this is probably a troll, or flamebait. Possible Funny)

Re:Good story

[Eponymous Bastard]

I've read what he had to say before, and yes, he's someone to listen to. But moderation is not done on the reputation of the person, but on the post.

Read the comment. It WAS redundant. The guy already had a +1 karma mod for being him, that's all he should get. The post then ought to be modded as redundant. I know that's the first thing I thought when I clicked on the article and saw "Good Article" = +5 Insightful.

But what do I know. I'm new here (and just a caveman)

Re:Good story

[davetd02]

Sure -- but it's standard practice to ask for summary judgment on reasonably undisputed facts. If there's no reason to believe that the copyright is invalid then it wastes everybody's time and money to sit down and prove it in front of a jury -- and it wastes the jury's time to have to hear facts that nobody disputes.

It's not that they're "avoiding a jury trial", it's that they're limiting the scope of the trial to things that are actually disputed. If the defendant claimed that she hadn't actually downloaded the files then a jury trial would be appropriate to figure out if she did or not. But, unless I'm missing something, she doesn't really think that the copyrights are invalid--she'd just like the chance to get the jury to invent an excuse to not find her liable.

Unfortunately for her, to the extent that it's "recognized" at all, jury nullification is a criminal doctrine, not a civil one. If there is no question over the facts of a civil case (for example, we all agree that we had a contract for me to deliver you 100 widgets and I did not delivery any of them) then the court will use summary judgment to get rid of the uncontested issues (there, the existence of the contract and my breach of it). Sometimes that eliminates the need for a trial at all. I don't get to argue before a jury that it was a bad contract or that the other side is a bad person. It just doesn't work that way.

Re:Good story

[CodeBuster]

they will move to voluntarily dismiss their own case, as they did in Capitol v. Foster, Interscope v. Leadbetter, Priority Records v. Candy Chan, Elektra v. Santangelo, and others.

They should not be able to escape paying the attorney fees of the defendant, particularly if the case is dismissed by the judge with prejudice and the defendant should definitely make the case to the judge that the entire action brought by the RIAA was frivolous and deserves to be punished with an award of attorney fees. The RIAA should not be able to jerk people around for no cost other than their own attorney and court filing fees, especially not when their case is frivolous, and moving to dismiss your own action when you feel that the tide is turning against you should definitely be taken as strong evidence of frivolousness (i.e. the burden should be upon the plaintiff to prove that his withdrawal by moving for dismissal of his own case is not frivolous and that should be a heavy burden in order to deter frivolous actions which waste the court's time).

Re:Good story

[Anonymous Coward]

Is the RIAA sending copies of the alleged copyright infringement .mp3 files to the defendants and the defendant's attorneys as evidence? Or is it just non-evidence of screen shots and IP logs of transfers of "filenames"? Has the RIAA ever exhibited a single evidentiary .mp3 file in a courtroom or in a settlement offer? If not, how are their settlement offers not unlawful violations of the various anti-spam and collections acts, not to mention the innumerable privacy violations which must occur from the hired firms who dig for copyright violations? Are warrants obtained for IP tracking of file downloads? Are these firms even licensed to do this sort of interstate and international detective work?

And if the RIAA is required by law to exhibit evidence of copyright violations, are not the defendants and the defendant's representatives ENTITLED to examine this evidence on their computers and .mp3 players?! Would prohibiting defendants from posting this evidence on-line in search of free legal assistance examinations of these .mp3 files not violate a defendant's right to a fair trial, her right to justice?!

Sure -- but it's standard practice to ask for summary judgment on reasonably undisputed facts. Sure, but has the RIAA ever actually exhibited a single undisputed fact? Or are they just assuming your Brittany Spears - Toxic desktop screensaver is a copyright violation?

Are the defense entitled to prosecution documents and evidence *before* the trial? Are those included in settlement offers? See the RIAA cannot legitimately prove anything without delivering copyrighted evidence to the court and the accused, which makes prosecution hypocritically null and void, as accuser has willfully by definition provided the accused content prosecution claims as copyright.

What we also need are some freely made self help downloads for individual citizens to defend themselves in court semi-intelligently. Is something like that possible for the defendant to have as cliffs notes on a computer in a courtroom, definitions of motions and procedures, responses to take, etc.? If citizens can cut out the expense of legal representation and do a decent job themselves, RIAA expenses will shoot through the roof as more people prolong, protract, and challenge allegations without evidence against them. There's tons of video manuals for how to use your operating system? Why not manuals for defending yourself against RIAA lawsuits?

It's not that they're "avoiding a jury trial", it's that they're limiting the scope of the trial to things that are actually disputed And that seems to me a violation of the defendant's 5th amendment right not to incriminate oneself. There is no factual evidence before trial. Before trial in a copyright infringement case, all you will ever have is a prosecution alleging copyright infringement! Granting any portion of summary judgment regarding music downloads or uploads would have to assume the defendant has given up their 5th amendment rights before trial! And the defense should be entitled to present all possible defenses, such as they were not physically observed doing anything illegal at a keyboard, mistakes in IP identity can and have been made, computers can be hacked, internet connections can be used by neighbors, etc. And all previous decisions regarding RIAA mistakes in the past should be admissible evidence.

Re:Good story

[xtracto]

, and couldn't resist the opportunity to put in the first comment.

You trying to get a FP naughty man!

In all seriously, although the post in itself was nor insightful or interesting if I was a moderator I would not moderate you down because of what you Mr. Beckerman represents. But of course that meant I would not be moderating objectively. It seems that it is what makes the moderation system work.

I must say that, after reading the title of the story I was expecting that you were the submitter.

Cheers.

Re:Good story

[Artifakt]

But the actual ownership of the copyrights is being disputed. The judge can force the issue if the grounds offered by the defendant for that dispute are unreasonable, but it's not, and (IMHO) should not be a given. There may be good reason why the ownership deserves to be questioned - in particular where the article mentions a work, the first reasonable question should usually be "how old is it?" If any of these works date back before about 1970, there's actually an increasingly good chance there's a real problem with at least one of the transfers in its history.
      I've been peripherally involved in a case where the history of a copyrighted work had literally a dozen irregularities (Note my sig - I wasn't a lawyer for either side, just a library researcher, and I can't reveal some specifics either). There were claims to have sold all rights, by companies that had only purchased first sale rights, there were copyright renewals where names and, particularly middle initials and titles (i.e. Dr. Mr. Mrs.) didn't match the first set of papers, there were documents filed by 'incorporated' entities, where the record of incorporation listed only one person rather than the state of issue's required minimum of three, and there was one set of such documents signed only by one person that was eventually proven to be a convicted felon at that time. There were signatures of 'lawyers' that cannot be found in the bar records for their states. There were corporate names (small publishing houses), that no one could find any other record of that company's existence or activities, so they were presumably incorporated just to receive that one copyright and hold it for a brief period.
      Extending this to other works in the same case, there was a claim that a large publisher had gone against their internally recorded practice at the time, and individually sold all sorts of rights separately to many smaller publishers instead of selling in bulk lots, for just this one, not particularly prominent author. It was basically necessary to believe this for the plantiff's claims to work.
      When you get back to about the great depression, this sort of thing apparently becomes very common, for both print fiction and music. Lawyers cleaning up receiverships and estates evidently routinely transferred assets the dead company didn't actually have as a way of giving debtors something where there was just no money to be had, or used a standard form that they didn't bother to amend when clearly needed. They passed out assets without due care a lot, figuring most of the stuff was valueless and these ownerships would never result in anyone actually making money to fight over, so disputes would be insignificant.
        For written works from the late 40's through the 1970's, it's less ubiquitous but still surprisingly common. Recent extensions in the life of corporate copyright on work for hire and worse ones for individual authors have created a minefield. Works by authors as famous as Edgar Rice Burroughs and H P Lovecraft are included in this problem, which means that companies as large as Disney are also already known to be impacted. For musical works, I understand something similar prevails, but certain areas, such as Jazz, have a tendency to be in exceptional disarray up through the 1980's, and a lot of the early punk rock stuff is horribly tangled even though it was the 90's.

Re:Good story

[NewYorkCountryLawyer]

I've read what he had to say before, and yes, he's someone to listen to. But moderation is not done on the reputation of the person, but on the post. Read the comment. It WAS redundant. The guy already had a +1 karma mod for being him, that's all he should get. The post then ought to be modded as redundant. I know that's the first thing I thought when I clicked on the article and saw "Good Article" = +5 Insightful. But what do I know. I'm new here (and just a caveman) I think it was fair for the moderator to mod me down, since I had nothing exciting to say. I can take it.

Re:Good story

[NewYorkCountryLawyer]

they will move to voluntarily dismiss their own case, as they did in Capitol v. Foster, Interscope v. Leadbetter, Priority Records v. Candy Chan, Elektra v. Santangelo, and others. They should not be able to escape paying the attorney fees of the defendant, particularly if the case is dismissed by the judge with prejudice and the defendant should definitely make the case to the judge that the entire action brought by the RIAA was frivolous and deserves to be punished with an award of attorney fees. The RIAA should not be able to jerk people around for no cost other than their own attorney and court filing fees, especially not when their case is frivolous, and moving to dismiss your own action when you feel that the tide is turning against you should definitely be taken as strong evidence of frivolousness (i.e. the burden should be upon the plaintiff to prove that his withdrawal by moving for dismissal of his own case is not frivolous and that should be a heavy burden in order to deter frivolous actions which waste the court's time). I agree with you, but that's their usual strategy. They'll try to avoid the attorneys fees but may not succeed. In Capitol v. Foster they dismissed their own case, but the judge slammed them for $68,685.23 in attorneys fees.

From 34 years of experience in litigation, I don't think I've ever seen a judge say no to someone wanting to withdraw their own case.

Re:Good story

[NewYorkCountryLawyer]

Sure -- but it's standard practice to ask for summary judgment on reasonably undisputed facts. Except that this isn't a summary judgment motion! Their chance to make a summary judgment motion expired a while ago, and they had no basis for a summary judgment motion. It's a desparate panicky attempt to find some other way of stalling to avoid the upcoming trial date, and to their way of thinking anything that uses legal fees and causes more hardship to the defendant is a good thing.

Re:Good story

[hkmwbz]

But moderation is not done on the reputation of the person, but on the post.

It's a gray area. As someone else pointed out, the comment was made by someone who actually knows what he's talking about. If he thinks it's a good story, one can just about assume that it is, seeing as this is his area of expertise and all. That makes the comment valuable to people trying to determine if the story has any merit or not. "Appeal to Authority"? Maybe, but in this case it's allowed :)

Just for the record, I am too...

[Anonymous Coward]

Just so everyone knows... I, too, am trying to avoid a jury trial. Heck, I'm trying to avoid ANY trial. Heck, I'm on the run from the police. Heck, I haven't done anything and I'm on the run. That is just how fscked up the justice system is.... I'm scared and I haven't done anything wrong.

Re:Just for the record, I am too...

[PhxBlue]

What's fscked up about the justice system is that you probably have done something wrong; you just don't know what. And alternately, that you don't have to do something wrong to be arrested, tried and convicted. Or just, y'know, detained indefinitely.

Re:Just for the record, I am too...

[raptorv99]

I'm scared and I haven't done anything wrong

I am catholic also. xDante's Finest Shade And what, Socrates, is the food of the soul? Surely, I said, knowledge is the food of the soul.

Re:Just for the record, I am too...

[tomstdenis]

Sorry I don't buy it. I mean yeah, sure the RIAA probably does finger innocent folk. But it sounds like in this case she did have the files in question, just trying to find a loophole out of it. Anyone above the age of 10 should know that downloading music that you don't have permission to is wrong. Heck, I knew about software piracy when I was 6. (we're talking 1988 here).

Using the "I didn't know sneaking around on a P2P program and downloading copyrighted material from random people all over the world was wrong" defense is just lame.

Tom

Re:Just for the record, I am too...

[gravos]

It is wrong, that's true.

But the RIAA is not interested in teaching people the difference between wrong and right, they are interested in using the legal system to extract far more money than they deserve from them.

And that too is wrong. No one has the moral high ground here, but I think the RIAA is standing on lower ground, personally.

Re:Just for the record, I am too...

[Anonymous Coward]

downloading music that you don't have permission to is wrong. No, it's just illegal. http://questioncopyright.org/

Re:Just for the record, I am too...

[biocute]

I'm scared and I haven't done anything wrong.

Trust me you're still okay. I'm scared that I haven't done anything wrong.

Re:Just for the record, I am too...

[jamar0303]

Your post reminds me why I should enjoy my time in China to the fullest (as full as my hard drive will get, that is). Looks like there's a plus side to the Chinese internet.

Re:Just for the record, I am too...

[R2.0]

"But it sounds like in this case she did have the files in question, just trying to find a loophole out of it."

It matters a great deal from a legal standpoint. If Universal doesn't actually own the copyrights to the material, then they have no standing to sue, regardless of what the defendant is alledged to have done. And given the history of the music business regarding copyright and royalty abuse with artists, it is a legitimate question to raise - if it is discovered that Universal never really took ownership of the copyright, then
a) the suit gets dismissed
b) someone elses lawyers start knocking on Universal's door, looking for "misdirected" royalties (maybe they won't be able to find their address, just like Stevie Nicks)
Of course, the suit could be re-filed by the actual copyright holder.

From a tactical standpoint, getting Universal's people up on a stand to walk a jury through a byzantine recording contract to explain just how it is that they own the copyright and are owed a kajillion dollars in damages when the original artist gets a pittance is almost certain to dispose a jury toward the defendant.

If we can bleat about "due process" and "competent defense" for murderer's, rapists, thugs, petty theives, and Gitmo detainess, surely this person deserves that same support?

Re:Just for the record, I am too...

[Anonymous Coward]

Anyone above the age of 10 should know that downloading music that you don't have permission to is wrong. Nope, downloading files of anything is not wrong or illegal. Nor do you need permission either, unless the file is clearly designated as copyrighted. There is absolutely no proof that a downloaded file is copyrighted, until it is downloaded, and if the RIAA was tracking downloaded files it could only do so by uploading the files themselves, which would clearly be entrapment, not to mention hypocritical. Or they could themselves download the files from people who uploaded the files, which would CLEARLY establish the process of PROOF, that it is necessary to download FIRST in or order to establish copyright validity. Hence downloading is not illegal or wrong, though it might be "illegal" to maintain possession of copyrighted files you did not have permission to copy or didn't purchase.

Uploading copyrighted files is illegal, but there isn't a single person alive that does not upload and download ideas that they didn't create, whether the ideas are copyrighted or not.

Wasn't there a case of some bloke who named his vacation movies similar to an RIAA or MPAA copyrighted work, and received a lawsuit? Taking screen shots of file titles is not proof of anything. And such a possibility for similar titles of files being mistaken for copyrighted works should serve as a huge warning to the aggressive unchecked tactics of an out of control legal extortion racket.

There's no difference at all between recording something played on the radio, and "downloading" the same thing.

Re:Just for the record, I am too...

[wytcld]

Anyone above the age of 10 should know that downloading music that you don't have permission to is wrong.

Where's the bright line? Turning on the radio and hearing a song for free isn't wrong. Hearing musicians play in a park for free isn't wrong. Putting on a CD while visiting a friend's house isn't wrong. Sampling a CD at a kiosk in a record store isn't wrong. Recording a concert broadcast on TV to your Tivo or video tape isn't wrong.

There is nothing intuitive or obvious about the difference between all the ways to listen to music free about which the general consensus is "Not wrong" and the several ways the RIAA thinks are so wrong that you should have to go to court and pay thousands and thousands in fines and attorney fees. For someone far inside a particular culture's arbitrary distinctions, those distinctions can look to be plain, obvious, and simple. That's an illusion, a distortion of perspective. What the RIAA wants us to accept as "wrong" depends on a very fine legalistic parsing of differences.

Basically the RIAA wants to find a loophole among all the ways that listening to music is "not wrong" by which to make a few instances so wrong as to deserve massive punishment and rewards to them. To respond legalistically to the RIAA's legalistic claims is not wrong; it's response in kind. If being legalistic is wrong, the RIAA has no case to begin with.

Re:Just for the record, I am too...

[number11]

Using the "I didn't know sneaking around on a P2P program and downloading copyrighted material from random people all over the world was wrong" defense is just lame.

But they're not suing her for downloading. They're apparently suing her for "distributing" (not just "making available") it. And they haven't even proved that the files contained material they own the rights to, much less that she actually distributed them.

Heck, I have, er, I mean a friend has, files that nobody has ever actually downloaded. And a few files that might not be precisely what the filename suggests, too. There are a lot of misnamed files floating around on P2P (some mistakes, some generated by spammers).

Re:Just for the record, I am too...

[vux984]

Pretty much.

Its a "You did $500 in unfair and illegal damages to us, an association of mega-corporations (and that's a high estimate). So we're going after you for $75,000 in unfair but legal damages to you, and that's not counting the stress, lost time at work, and other intangibles."

Re:Just for the record, I am too...

[Anonymous Coward]

This is really the slam dunk defensive legal approach. File names prove nothing! You have the fair use right to sample, the fair use right to spoof (ala Weird Al Yankovich), the fair use right to criticize. If people were to insert their own words into file name titles that match artist/song name titles (such as a profanity at the start), or even not, there is no way that copyright determination can be made BEFORE the file is downloaded. The file could have been a parody.

The RIAA should always be taken to jury trial in download cases (if they bring any). Does anyone know if they are still just going after uploaders? If their "evidence" consists of screen shots of file names, even the dumbest lawyers should be able to cross examine that file names are not digital fingerprint content. I don't see how the RIAA can win any case against any even out in the open file downloaders on the even widely targeted P2P programs such as Kazaa, unless the RIAA themselves were uploading that content.

You can change all your OS filenames to match the names of songs by RIAA artists if you damn well feel like it, and there is no infringement whatsoever in so doing. You can also back up your legally purchased cds and type the file names for those tracks in folders. Not only does downloading not occur in these instances, there is NO PROOF BEYOND A REASONABLE DOUBT that infringement occurred. This should be emphasized to every Judge and Jury.

The only evidence the RIAA could ever theoretically obtain of copyright infringement would be tracking ISP #s of tracks they themselves uploaded. And the RIAA should always be forced to hypocritically display that evidence in court by exhibiting the alleged copyright infringement files in court by playing them in the courtroom.

Everyone LAUGH as further "copyright infringement" occurs with the songs being played in court (even though all the attendees in the courtroom have not payed for that performance).

Re:Just for the record, I am too...

[Anonymous Coward]

I forgot to add, if the RIAA goes after a pure downloader, if necessary make sure you have friends purchase used cds by paying cash to bring to court as proof of proper ownership of tracks. No receipts are necessary; all that's necessary is possession of a legitimate used cd containing the tracks. As if you are only DOWNLOADING, you cannot be accused of distribution, and the proper fine per violation should be the market value of the tracks, $0.99 at ITunes, or less at other distribution outlets. Hell, to really screw with the RIAA offense, bring in international music download sites, which are not necessarily subject to the same copyright laws. That might have a nice tying up effect of costing the RIAA millions in one suit.

So yes, make the RIAA PROVE every instance of DISTRIBUTION in the determination of damages (if they are going after you in an upload case). If they only have their SINGLE personal download from your upload sample, that is clearly a case of no damages (as the RIAA is authorized to download their own copyrighted work). And as such they should have to prove every instance of download was unauthorized.

Re:Just for the record, I am too...

[TemporalBeing]

But the RIAA is not interested in teaching people the difference between wrong and right, they are interested in using the legal system to extract far more money than they deserve from them.

Of course. Because if they taught people it would take 10 to 20 years before seeing results, and they don't want to wait that long. They want their money now. This is the "Now" generation after all. ;-)

Re:Just for the record, I am too...

[tholomyes]

"If I went into Ralph's supermarket and took a 49-cent Bic pen, would they say I stole something they spent four million to develop and three million to market, and therefore will have to hire three new security guards to watch the pens?" -Kevin Mitnick

Re:Just for the record, I am too...

[portnoy]

From a tactical standpoint, getting Universal's people up on a stand to walk a jury through a byzantine recording contract to explain just how it is that they own the copyright and are owed a kajillion dollars in damages when the original artist gets a pittance is almost certain to dispose a jury toward the defendant.

Except that's not what would happen. The RIAA legal team merely has to describe how, for example, when Mercury Records recorded "Hysteria" they were operating under the parent company Polygram, which was later bought by Seagrams, who then folded Mercury and all its assets into Universal. In short they're going to describe a rather straightforward transfer of property, and not mention the artists at all.

In order for the defendants to actually get in the entire "here's how we screw artists" thing, they're going to have to show that it's at least relevant to the case. Sadly, it's not.

Re:Just for the record, I am too...

[Workaphobia]

> "Anyone above the age of 10 should know that downloading music that you don't have permission to is wrong."

What the hell kind of teenagers have you been talking to?

> "Using the "I didn't know sneaking around on a P2P program and downloading copyrighted material from random people all over the world was wrong" defense is just lame."

Agreed. Also lame: the current music/movie/etc business model, the effect that business model has on artificial intellectual property monopoly laws, and the detriment said laws have on free and artistic expression in our culture.

Re:Just for the record, I am too...

[Anonymous Coward]

"sure the RIAA probably does finger innocent folk"

And we all know how painful that can be.

Re:Just for the record, I am too...

[vimh42]

"I'm scared and I haven't done anything wrong." You're guilty until proven innocent.

Re:Just for the record, I am too...

[PhxBlue]

I was actually speaking more in the "on death row for a crime one didn't commit" sense, or the "in GTMO for being in the wrong place at the wrong time" sense.

Re:Just for the record, I am too...

[NewYorkCountryLawyer]

From a tactical standpoint, getting Universal's people up on a stand to walk a jury through a byzantine recording contract to explain just how it is that they own the copyright and are owed a kajillion dollars in damages when the original artist gets a pittance is almost certain to dispose a jury toward the defendant. Except that's not what would happen. The RIAA legal team merely has to describe how, for example, when Mercury Records recorded "Hysteria" they were operating under the parent company Polygram, which was later bought by Seagrams, who then folded Mercury and all its assets into Universal. In short they're going to describe a rather straightforward transfer of property, and not mention the artists at all. In order for the defendants to actually get in the entire "here's how we screw artists" thing, they're going to have to show that it's at least relevant to the case. Sadly, it's not. Yeah but the work you just described for the RIAA legal team is not "straightforward" at all. It's a complex subject, often littered with mistakes. It would require the plaintiffs to bring in witnesses from each record company. To Duluth, Minnesota.

Re:Just for the record, I am too...

[dbcad7]

Forget right and wrong... what is the law on downloading songs ? is it illegal ?

or is it that uploading copyrighted material is illegal ?

Re:Just for the record, I am too...

[NewYorkCountryLawyer]

These cases do not have to do with downloading. The RIAA does not know of any downloading.

Re:Just for the record, I am too...

[Anonymous Coward]

What's fscked up about the justice system is that you probably have done something wrong; you just don't know what.

No, (s)he's probably done something illegal, not (necessarily) wrong.

Wishful thinking

[Alioth]

Hm. Another article deserving of the tag 'wishfulthinking'.

According to TFA, the defendent *still* doesn't have the copyrights to the songs, even if the registrations are wrong - in that case, the registered copyright is still to record companies. Who are probably RIAA members. If this case fails, the defendent can just be sued again by the registered rights holders. I don't see then name "Jammie Thomas" as the rights holder under either columns in TFA.

Re:Wishful thinking

[Spad]

Thomas is fighting the motion, saying that the plaintiffs need to prove two things: that they are the true copyright owners and that there was an act of infringement.

She's not fighting the case soley on the basis of ownership. However, if she wins then it sets a huge precedent, which would further prevent the RIAA from using their shotgun approach to lawsuits. If they have to trace & prove ownership of every song that they're claiming for, it's going to add a lot of overhead to their cases and could well dredge up some unwelcome cases where they discover that they *don't* own the copyrights to songs that they've been making money off for years.

Re:Wishful thinking

[morgan_greywolf]

Actually, two of the records are listed as having an original copyright holder as being CBS Records. CBS Records is not an RIAA member, according to their website. Also, many of the companies listed on that link aren't RIAA members, either, they just report to the RIAA. I think among those is Geffen, which is also listed in TFA, but I'm not sure.

Re:Wishful thinking

[mSparks43]

I think sir, you miss the point.

As I understand, Its a bit like the Women who kept her house after she defaulted, because the bank that brought the chapter 11 no longer owned the mortgage.

Same thing here, RIAA cant bring a lawsuit for copyright infringement for songs they don't own the copyright to, 'most probably' wont cut it in court.

Re:Wishful thinking

[swillden]

According to TFA, the defendent *still* doesn't have the copyrights to the songs

That's irrelevant. *Only* the copyright holder has standing to sue over the copyrights. If the plaintiff doesn't own the copyrights, the suit will be dismissed.

If this case fails, the defendent can just be sued again by the registered rights holders.

Assuming it fails only on the copyright ownership grounds, probably. It's also entirely possible that the copyrights fell through the cracks at some point and that it's not possible to clearly establish the ownership, or that the ownership ended with some other company or individual that isn't interested in suing Thomas, since it will be much more profitable to sue the company who has been illegally distributing the material for profit.

Actually, even if the ownership did turn out to rest with another RIAA member, I'd still expect a lawsuit against the current distributor, seeking restitution of all profits related to the song (less expenses related to the song, of course, meaning that a bunch of auditors will make millions).

Finally, as another poster pointed out, this may well establish a precedent that the labels are required to exhaustively trace the ownership of the songs over which they sue, adding significant cost and complexity to already-expensive cases. It's a good legal tactic and it's also quite proper -- companies *should* have to ensure they truly hold copyrights before they sue over them. Think how much pain that would have saved in the SCO case.

Re:Wishful thinking

[mpe]

Same thing here, RIAA cant bring a lawsuit for copyright infringement for songs they don't own the copyright to, 'most probably' wont cut it in court.

It could also get them slapped with "contempt of court" charges.

Re:Wishful thinking

[calbanese]

A district court jury verdict won't set any precedent, let alone a huge one, since it would not be binding on any court anywhere. If the RIAA loses and it is appealed, it could set a precedent for that circuit, but that would be a long way off in any event.

Re:Wishful thinking

[cptdondo]

Bingo!

The RIAA 'sues' over $3,000. A half-decent law firm won't even answer the phone for that. Litigation (and preparation for litigation) is *extremely* expensive. The RIAA has been able to extort money from people by threats of litigation, without actually doing any of the real work of preparing for litigation.

People are finally getting the idea that the RIAA is weak in prepartion. Suing someone over something you don't own is a bad thing. If other lawyers start doing this kind of research, all of the sudden you may find that Tonya Anderson's class action lawsuit is a lot closer to reality....

Re:Wishful thinking

[crrkrieger]

The term of art you are looking for is "Offensive Nonmutual Collateral Estoppel." If the true owner is a member of RIAA, then it may be precluded from raising this issue in a new case. This is a complex doctrine, and based on what I remember, some of the elements may not be met here, but this is definately worth looking into.

Re:Wishful thinking

[iabervon]

Ownership of the copyrights is half something that she needs to get dealt with before any other claims, because if she won on other claims, but the ownership turned out to be wrong, the actual owner could still sue her (since a judgment against the claimed owner wouldn't necessarily stick, since the actual owner shouldn't be hurt by the claimed owner arguing the case incompetently). And the actual owner might not be interested in suing her.

But it's pretty unlikely that the ownership isn't right, simply because copyrights can be bought and sold outside the public record, and if they still belonged to any of the other entities that registered them, those entities would probably have said something by now. This part of the request is probably, at the core, an attempt by the RIAA to have the issue get resolved without revealing the details of whatever deal transferred them to the general public.

Re:Wishful thinking

[UnknowingFool]

First, if the plaintiff cannot prove that they own the copyrights, they have no basis to sue the defendant in the first place. Second, they must prove that the defendant actually infringed on their rights. If the prove the second and not the first, then the entire case is moot. I cannot sue someone who damages my neighbors property. Only my neighbor can sue damages to his property. Now if my neighbor gave me power of attorney, then that's different. Really it would not take much to prove the RIAA owns the copyrights. I am guessing that this a lawyer's tactic. The RIAA's lawyers haven't shown themselves to be particularly detail oriented. If their lawyers can't settle the copyright question before trial, they open themselves up to a cross examination. That chance is what the defendant's lawyers are hoping for.

Plagiarism is bad, mmkay?

[gblues]

You know, as interesting as TFA is, it's not cool to copy/paste entire paragraphs in the writeup without attribution.

Re:Plagiarism is bad, mmkay?

[deftcoder]

http://technologyfront.com/resume.html

Someone with that much journalism experience (and an English major, too!) should probably know better.

Re:Plagiarism is bad, mmkay?

[Overzeetop]

It depends - the c/p paragraph looks like a pretty good synopsis of the issue; let's call it the abstract for arguments sake. Now, if the article is complete and detailed, then the c/p is reasonable. If the c/p paragraph is most of the article, then the OP was out of line, but it wouldn't matter because the article itself is utterly useless.

See, either the lifting is okay, or the article is not worth the time to click the link. Problem solved.

Re:Plagiarism is bad, mmkay?

[Anonymous Coward]

WtF?
That 'editor' is an B.S. of _physics_?

And suddenly, I felt deeply ashamed of my profession...

Re:Plagiarism is bad, mmkay?

[Anonymous Coward]

Just look at it this way--judging from the experience listed on his resume, he's at least 50 years old. In that time he's managed to work his way up to working with the likes of Zonk. Doesn't that make you feel better? :D

what case?

[Hemogoblin]

I know I could just RTFA, but you should probably mention which case you're referring to in the summary.

Jury trials are both good and bad

[Anonymous Coward]

Jury trials are good if RIAA is subject to them

Jury trials are bad if IBM is subject to them

Hence it is proven that jury trials are both good and bad.

Re:Jury trials are both good and bad

[Maximum Prophet]

Mr. Beckerman would be the expert here, but you are correct. Law is about 90% facts and 10% lottery. If you're being sued, and you're not 100% in the right, go for the Jury Trial. If you're a criminal, Jury Trial, definately. If you're completely in the right, and your lawyer knows the Judge is a good Judge, skip the jury, because it's easier to convince one knowledgable person than 12.

Try as I might, I can't really see ....

[Anonymous Coward]

that she has a case.

There may be some irregularity in the copyright ownership. But noone seriously contends that the defendant owns the copyright.

There may only be proof that she distributed to the RIAA goons. But noone seriously doubts that she had been distributing to others unknown.

I hope she gets off, and the RIAA case collapses. This may happen on one of the above technicalities. But I think this is clutching at straws.

Re:Try as I might, I can't really see ....

[Kazoo the Clown]

Uhm... I am the copyright owner of some music that I make available for free. If any of this happened to be the music in question the RIAA cannot prosecute her because of it, simply because it's "obvious" she doesn't own the copyright herself. The court has no way to know, just because she does not "own" the copyright, that she nevertheless has or does not have the right to hold or distribute a copy...

Summary Judgment

[gravesb]

Summary Judgment just means there are no facts in dispute for the particular areas disputed. If that's true, then its in everyone's best interest to grant summary judgment. However, if there is a question about the registration, then the judge can grant summary motions for the other areas, and try that part before a jury. However, the defendant needs some proof to fight it. I hope that she has some. It shouldn't be that hard to trace the registration.

Surely they've planned for this eventuality?

[EvilGrin666]

With so many lawsuits filed, surely the the RIAA knew it was going to hit someone who'd fight back? Wont they of considered this possibility and have a defence ready?

Re:Surely they've planned for this eventuality?

[fermion]

This may mirror image of the tobacco suits. If so, the lessons are the same. First, if one is involved in legal proceedings it is important to keep everything perfectly legal. Tobacco should never have been so flippant with congress, and the RIAA should never have been so flippant with the law suits. In the former such behavior really broke the 100% winning streak, and in the later such behavior gives then no hope for a completely fair jury trial, and every child of the juror is potential target of the unfocused extortion campaign. I use the word extortion because it is the only time I see such a wide use of negotiated settlements, and such fear of a trial.

As a mechanism to fight piracy, the policy was a reasonable one. However, instead of promoting law suit abuse, they should have been more careful about making sure the person they sued was really legitimate. It would have had the same effect, without becoming extortion.

Re:Surely they've planned for this eventuality?

[Jason Levine]

Not necessarily. They might have just figured that they could just quietly drop the case (or settle for a tiny figure) if the defendant fought back too much. It's worked in some cases (like the Granny who was accused of downloading rap using a Mac computer when the file sharing program she was accused of running was Windows only), but it might not work here. Unlike what the RIAA would like the think, the courts don't just automatically rubber-stamp approve everything the RIAA wants to do.

Re:Surely they've planned for this eventuality?

[jnnnnn]

Well, you have to admit that their chances don't look good.

All the planning in the world won't get you out of an impossible situation.

A jury trial may not be impossible, but perhaps they've worked out that the odds aren't in their favour (I don't know if they are or not, not having read TFA).

Re:Surely they've planned for this eventuality?

[dekkerdreyer]

Wont they of considered this possibility and have a defence ready?

Why would they of? (of what?!?)

It's Mispeek:
"Wont" -> "Won't"
"of" -> "have"
"defence" -> "defense"

Welcome to MySpace English - mispeek.

Re:Surely they've planned for this eventuality?

[Anonymous Coward]

Er, maybe:
"Wont" -> "Won't" -> "Wouldn't"

Wouldn't you think a grammar correction would be correct?

Backups?

[sanosuke001]

I'm not sure as IANAL, but if you owned a physical copy of a CD/Record/8-Track/phonograph of a song, you are legally able to make a copy of it, correct? So, would sending someone else a copy of a song you ripped from your recording be legal if they also owned a copy? ie. I own a CD, a friend owns the same CD. He doesn't have a CD-ROM on his computer so I rip it for him and send it to him so he has it on his MP3 player.

I see this more as a "can I legally 'help' people backup their music" and "is it my fault that others can't follow the law."

From how I see it, it isn't their fault someone else downloaded the song; they didn't force anyone to do anything illegal. If they own the recording, shouldn't they be able to let others download it to have a personal, digital, copy? If not, why?

Re: Backups?

[Televiper2000]

Wow, you actually buy into that idiotic disclaimer they used to put on IRC sharing sites? You are responsible for making copies of the music available publicly. You are responsible for checking the validity of their personal right to the back-up. Just like you'd be responsible for checking someone's ID when they are buying cigarettes. Besides, the last time you could actually find someone with a computer lacking the resources to make MP3s was in the Napster days.

Re: Backups?

[mwvdlee]

The owner must make the backup.

So sending the other person the files you copied, means they didn't make the copy themselves. Depending on where you live, this either makes both of you a copyright offender or just the person sending the copies.

I don't quite know how it works if you just provide the other person with instructions on how to make the backup. Just look at the whole DeCSS history to see how difficult this can get.

Re: Backups?

[Loosifur]

IANAL either, but I work for some. From what little I know about copyright law, it's meant to prevent one person from profiting from the sale of another person's intellectual property, as well as to prevent them from interfering with that person's ability to profit. In the music case, I can't play someone else's music and charge money for it without permission from the copyright holder, nor can I give it away for free since that interferes with the holder's ability to profit. So if both you and your friend own the same CD and all you're doing is basically helping him change formats, that should be perfectly legal. After all, the same effect could be had if your friend brought his copy to your computer and ripped the songs off his own CD using your equipment.

Re: Backups?

[dontspitconfetti]

There needs to be an original copy coughed-up or a receipt of purchase (see: iTunes) if ever asked for any proof. You can have a copy as long as the original isn't too far behind.

Re: Backups?

[JesseMcDonald]

From what little I know about copyright law, it's meant to prevent one person from profiting from the sale of another person's intellectual property...

Obviously false, or there wouldn't be any CD or phonograph record retailers.

In the music case, . . . nor can I give it away for free since that interferes with the holder's ability to profit.

Nothing in copyright law -- at least not as interpreted by the courts under the First Sale Doctrine -- prevents you from legally giving away a CD or record for free, or even from selling it for personal or commercial profit. You just can't legally keep a copy for yourself. (Otherwise used CD/record stores would be in clear violation of the law.)

So if both you and your friend own the same CD and all you're doing is basically helping him change formats, that should be perfectly legal. After all, the same effect could be had if your friend brought his copy to your computer and ripped the songs off his own CD using your equipment.

Copyright law is concerned with the actions themselves, not their effects. Making a copy for someone else would still be distribution, and thus infringement, even if the other party could've done the exact same thing without any legal trouble at all; that's just one of the many things wrong with copyright law, somewhere behind the DMCA and the entire concept that it could possibly be justified to forceably restrict distribution in the first place (in that order).

Needless to say, I am not a lawyer and this is not legal advice. (As if anyone would expect to find legal advice in an anonymous public forum....)

Re: Backups?

[Loosifur]

"From what little I know about copyright law, it's meant to prevent one person from profiting from the sale of another person's intellectual property...

Obviously false, or there wouldn't be any CD or phonograph record retailers."

I phrased that wrong on second reading. In the case of retailers they either purchase the products they intend to sell from the producer wholesale, or they receive the goods on consignment. Either way the initial copy has been legally obtained from the copyright holder. What I should have said was that infringement occurs if someone distributes music (for example) that they haven't first legally obtained from the copyright holder, for instance if I were to download a CD image illegally and then went on to sell or distribute copies. In that example each copy distributed illegally represents a loss for the licensed distributor (which makes some false presumptions, but that's the argument).

"Nothing in copyright law -- at least not as interpreted by the courts under the First Sale Doctrine -- prevents you from legally giving away a CD or record for free, or even from selling it for personal or commercial profit. You just can't legally keep a copy for yourself. (Otherwise used CD/record stores would be in clear violation of the law.)"

Right, but electronic distribution a la KaZaA, etc., violates that by retaining a copy, right? In the example of ripping songs off a CD for a friend who owns the CD there is a distinction without a difference. Both parties own a legally obtained copy of the same CD and making a copy for personal, noncommercial use is covered under the AHRA (more or less). Maybe it technically violates copyright law (and judging by the RIAA I'm sure they think it does) but I'd hazard a guess that a reasonable judge wouldn't weigh to strongly against the defendant in such a case.

Re: Backups?

[pintpusher]

I've discussed this before with someone on here.

Its a distributed off-site backup scheme. Its very simple and so far as I can tell (IANAL and this is all with tongue firmly implanted in cheek) perfectly legit, except maybe for the intent.

It goes like this: Mary rips all her cd's that she legally owns onto her computer system, for whatever reason. She has spent countless hours doing this and figures its more efficient to backup these rips than to go through the entire process of reripping in the event of a disk failure. Being a cautious person, she realizes that off site backups are a vital part of any backup scenario. So she calls her friend Bob and says: "I've got xGB of data that I need to backup offsite, can I borrow some storage space?" Bob says "sure!" (note the enthusiasm there). So Bob partitions off enough space for Mary and sets up a way for her to transfer her material to his storage. Being good little users, they work out the details to automate this so that Mary can get copies back from her archive easily over the web. Finally, Mary says to Bob, "As part of this, can you do me a favor and routinely review some of the material in this archive to confirm that it is in good shape? If you find any that isn't, please let me know so I can keep my archive in good condition." Bob agrees to this and occasionally selects a few tracks from her archive and "reviews" them to confirm they are not corrupted.

Time passes. Bob has amassed a collection of cd's and realises that he really likes the security that Mary has with her offsite backups. Bob calls up Mary and says, "Hey, I'm giving you all this storage space, how about if you let me use some in return?" Mary, realizing she always loved Bob anyway, readily agrees to this. So she carves out a section of her storage and sets up a similar system for Bob to use. She also agrees to review his archive on occasion to ensure its validity. So now they both have nice secure offsite backups of their music data and are both ensuring the validity of the archive by selecting random tracks for "review" on a sort of ad-hoc basis and the world is good. Incidentally, they are now dating pretty regularly and Bob has left an extra toothbrush at her house.

Time passes. Bob has added some storage to his array because there was a great sale at Fry's. He has also noticed Julie three cubes over at work and they've been chatting it up at the water cooler. He discovers that she has a vast collection of now out of print music that she has archived on her machine at home. Bob, seeing his in with her, suggests that they swap storage space for offsite backup purposes. Julie, knowing the dangers of relying on single failure point data storage techniques, readily agrees to the arrangement. So now Bob has redundant offsite backups because both Mary and Julie have copies of his archive and they are both verifying its validity.

Cut to Bob at dinner with Mary. There is a tense moment when she realises that Bob is seeing Julie on the side. But she is flexible and willing. So, we'll leave the romance out now, cause it gets ugly. But, soon all three of them, Bob, Mary and Julie have redundant offsite backup archives with reciprocal validity checking. Its beautiful. THey go live with it and soon have amassed a large circle of friends all recieving the benefits of this redundant, and distributed offsite backup archive containing some 2 TB of music that they all verify with some regularity.

I really don't see the problem with it.

So, I've got some storage, wanna swap? You have to promise not to distribute the archive, though you can certainly make additional backups of the archive to help secure it. And also, if you find others to trade backups with, I'll be happy to mirror them as well so that we all get the benefit of redundancy. I'm sure we can easily automate this too...

Re: Backups?

[sanosuke001]

First off, IRC doesn't have "sharing sites." Second, don't be so confrontational when a legitimate question is asked.

As for the little thoguht-provoking content, saying that you have the responsibility and there being a law are two different things. If you can cite a source, that would be great. However, the same thing could be said about your responsibility to the person you gave it to. There is no way you can make sure they don't infringe copyrights. Ultimately, wouldn't it be your fault? At some point it gets to be overkill. Should we even be going after those distributing? I think not. Going after the people who download without a legal copy seem more of a likely target as they are the only ones you can ultimately prove have ill intent. In my opinion, anyway.

Re: Backups?

[Televiper2000]

IRC has channels with resources, fserves, etc linking to Mp3s. It used to be the primary place to go to get pirated software and music before P2P started up. Sorry if I used "sites" as a generic term for "places". Where you can't be absolutely sure, you can get enough proof to cover your ass. If you're running an Mp3 service or you're sending your friend Mp3's you're basically distributing which is beyond your rights as a copyright holder. But the whole backup thing is an age old argument that I've never been sold on. You're setting up something that looks, smells, and works like an illegal file service and saying you're not responsible if people use it that way. Buying a CD doesn't give you the right to host the files on your website in anyway. I think that alone violates the personal use clause.

Re: Backups?

[Anonymous Coward]

If they own the recording, shouldn't they be able to let others download it to have a personal, digital, copy? If not, why?

The Audio Home Recording Act (AHRA) permits copying only with equipment for which royalties have been paid and only onto media for which royalties have been paid. Furthermore, the equipment must prevent serial copying. That is to say the equipment can not allow you to make a copy of a copy. So presuming you had paid royalties on your equipment and hard drive you would still not be in compliance with the Audio Home Recording Act because you are giving your friend a copy of a copy. If your friend were reading directly from the CD in your CD-ROM drive that could be different (assuming all the other AHRA requirements are in place).

Re: Backups?

[deblau]

Disclaimer: IANAL either, but I might be in December depending on the July bar results. This is not legal advice.

if you owned a physical copy of a CD/Record/8-Track/phonograph of a song, you are legally able to make a copy of it, correct?

I think fair use is something that people around here have a hard time understanding. Fair use is totally unlike programming, where you have black-and-white rules that give you immediate results. Misplace a semicolon, get a compiler error. Fair use isn't like that.

The most important thing to remember is that fair use law is deliberately blurry, because "fairness" is really damn hard to define. The law lists some things that must be considered, but it also says they're not everything. The jury has to consider all of the circumstances, and you don't know whether your use is fair until you get a court ruling. Of course, by then it's too late to avoid infringement.

Let's apply this logic to some examples. Is it a fair use to make an archival copy? Maybe, maybe not. Will you get in trouble for making a 30-second "demo" clip? Maybe, maybe not.

So, would sending someone else a copy of a song you ripped from your recording be legal if they also owned a copy?

The answer is maybe, maybe not, and that's the best you're going to get until it's decided in court.

That said, there are guidelines. Certain fact patterns tend to come out the same way. The record companies tend not to sue for 30-second clips (but they could). Parody is a fair use (but the jury could decide what you did wasn't a parody). Using song or video clips in a classroom for instruction is OK. Newspapers usually win the fair use argument. But for specific questions like yours, there simply aren't yes-or-no answers.

Use your common sense -- if you were a judge deciding whether it's in the best interest of everyone (including record companies), would you think it's fair? Why or why not?

Isn't this normal

[WPIDalamar]

In any case, don't both sides often attempt to get summary judgement on some issues? It makes trials go faster.

The article makes it sound like RIAA is running scared, it sounds to me like they understand it's a big deal and are doing everything they can to win the case. I would expect anyone involved in a court case to, you know, actually try and win it.

um

[theMerovingian]

that the RIAA owns the copyrights to the songs in a file-sharing case; that the registration is proper; and that the defendant wasn't authorized to copy or distribute the recordings

It sounds like the only disputed issue is whether RIAA in fact owns the copyrights. This is a question of fact that would vary song-by-song, and a determination that these particular songs belong to RIAA would not prevent the issue from being re-litigated in every other case.

Re:um

[JustNiz]

except that this lady didn't have any music on her computer at all, yet the RIAA thought they had her IP address so tried to sue her anyway.

They are still suing her only because they can't be seen to back down because their whole tactic is based on incorrectly stating the law to get people to pay them a hefty 'avoid court' fee. The success is largely based on the threatened individual's fear of large attorneys bills and lack of knowledge of the law, rather than actual fact of law.

Finally this woman is the first person with the balls to tell the RIAA to fuck off and die, Now the RIAA are pissed because she is blowing their whole scam. If they go to court, the judge will find the RIAA's activities illegal. If they back down first, they will basically be admitting the same by their own actions.

This woman rocks. Its people like her that improve the world.

Re:um

[TubeSteak]

It sounds like the only disputed issue is whether RIAA in fact owns the copyrights. In TFA, Virgin Records, et al wants summary judgement on the issue of whether "the defendant wasn't authorized to copy or distribute the recordings."

Which is nice, but not relevant.
They still need to prove that distribution happened.
That is something I'd consider a "disputed fact" and quite frankly, is the heart of the matter.

I imagine they'd also need to prove that those files are what they claim.

Re:um

[Anonymous Coward]

What we need are spoof RIAA files that are widely shared as the basis for counter suits. Already, there are plenty of files out there that are "misnamed", don't contain the content "expected", etc. How shocked would the RIAA be if you walked into court with a list of files all named as "Artist - Song Name" that contained nothing but lines of "Fuck the RIAA" content.

1.) Upload your folder of Spoofs
2.) Receive RIAA Settlement Offer
3.) Counter Sue for by definition proof of violation of your copyright material (said spoofs)
4.) ???
5.) PROFIT!

It's already the case that many filenames do not contain expected content. But the market will sort it out. Cheap enough legitimate trusted distribution centers will evolve.

But really the RIAA needs a taste of their own medicine. Could you imagine 20,000 counter suits (hell, millions! of counter suits) for every RIAA download of spoofed "Artist - Song Name" file of content containing lines of "Fuck the RIAA". You could even mix legitimate "stolen" copyright violation content in some of the files (the RIAA will lose more then they ever gain just by checking to see if those files are copyright violations). And according to Law, these files are no less valuable than any other copyrighted .mp3 track. Seriously, everyone upload a folder of this stuff to Kazaa, and build a program to track for RIAA employee downloads, and spam the lawsuits. If RIAA attorneys are making money from the assault, surely there must be even bigger money to be made from a multitude of more counter suits. This is the type of offensive counter measure that will collapse the entire copyright system, which is the holy grail goal, at least to me and others. :P

the thing with jury trials is...

[m2bord]

no one can predict how a jury will vote. it's a 50/50 shot.

some jurors may empathize with the defendant while at the same time, another handful of jurors sympathize with the plaintiff.

the truth is that you just don't know. i think that some of these cases should go before a jury and let's see what happens.
the riaa's arguments may be solid but the question of what constitutes copyright infringement and what constitutes fair-use needs to be codified.

my question has always been, "why was it okay for my to make copies of my vinyl albums, put them on cassette, and give it to a friend but it's not okay for me to make a copy of a cd and give that cd copy to the same friend?"

the end result is the same. my friend gets the music that i paid for.

could it be that only now the record labels are panicking because people are not gathering in herds to buy the latest stuff put out by seemingly talent-less hacks like kelly osbourne or britney spears?

so many computers are used in producing pop music now that it would indeed make the world's largest beowulf cluster.

Re:the thing with jury trials is...

[east coast]

my question has always been, "why was it okay for my to make copies of my vinyl albums, put them on cassette, and give it to a friend but it's not okay for me to make a copy of a cd and give that cd copy to the same friend?"

Quote me the law that says it's ok (as in legal) to give out a copy to a friend.

Just because the practice is winked at doesn't make it legal. I think it's just a matter that the technology has not only given people a better and easier way to distribute it but it's also given way to an easier and better way to enact the law.

Re:the thing with jury trials is...

[djmurdoch]

my question has always been, "why was it okay for my to make copies of my vinyl albums, put them on cassette, and give it to a friend but it's not okay for me to make a copy of a cd and give that cd copy to the same friend?"

What makes you think that was legal?

Re:the thing with jury trials is...

[Dunbal]

Just because the practice is winked at doesn't make it legal.

      There's also a lot to be said about a government that has done nothing about the practice for years nay DECADES and suddenly (and EXCLUSIVELY) because of lobbying starts "arresting" people for it.

Re:the thing with jury trials is...

[thegrassyknowl]

Just because the practice is winked at doesn't make it legal.

They only winked at it because recording to analog tape is inherrently lossy no matter how good your equipment is. After a few generations it's clearly not as good as the original source. To top it off playing vinyl and analog tape wears out the surface and eventually the quality of your media degrades. It seems only fair that if your expensive vinyl is going to wear out if you play it over and over that you're better off only playing it a few times to record it to high quality tapes each time a tape gets chewed.

Digital copies make (almost) perfect copies of the input. You can make many many generations of copies before there's enough bit errors to even be noticible. Add to that the ease and speed which you can hand out digital copies (16x burning rather than 1:1 for vinyl->tape) and they are scared. Also, it's theoretically impossible to wear out a CD or DVD if you take good care of it so there should be no need to make backup copies to prevent it wearing out as you play it.

The old "it's only illegal if you get caught" really comes into play. If you recorded your vinyl to tape or made mix tapes for your own use then nobody was really any the wiser. The same goes for CDs and DVDs now. It's the ease of widespread distribution that scares them. I just downloaded a 4G DVD image in the space of minutes. Yes it was legal, it was a Linux distro. It may has well have been a movie; it didn't take long to get it and there's hundreds of places you can get movies and music from.

Nobody publicised their music sharing to the world back in the tape days. I am almost certain that the recording industry had a meeting and sat down to work out what they were going to do about these new fangled recorders, decided that nobody would ever want to make a crappy copy of their records and kept on going as they were. THey probably had the same meeting about CDs, DAT, and the Internet.

Re:the thing with jury trials is...

[east coast]

Ok, so say it. I really don't know what you're getting at here.

Re:the thing with jury trials is...

[east coast]

They only winked at it because recording to analog tape is inherrently lossy no matter how good your equipment is.

No.

Nobody publicised their music sharing to the world back in the tape days.

Yes.

You see, the reason it's prosecuted so widely today is that we have, for the first time in our history, the ability to make a large number of copies available for what is essentially no cost to us and for what is a somewhat insignificant cost for the RIAA to investigate.

Do you really think that the RIAA considered going around in a car in the 70s and 80s and stopping kids with portable 8-track players, Walkmans and boom boxes and demanding that they produce proof of ownership of the music? It had nothing to do with the quality of the copies, it has to do with the practicality of the situation.

Re:the thing with jury trials is...

[poot_rootbeer]

my question has always been, "why was it okay for my to make copies of my vinyl albums, put them on cassette, and give it to a friend but it's not okay for me to make a copy of a cd and give that cd copy to the same friend?"

It was never okay for you to distribute dubbed cassette copies of albums to your friends.

The difference is that before public file sharing took off, there was no way for the RIAA companies to rifle through your tape collections to see what unlawful copying you might have been engaging in.

Re:the thing with jury trials is...

[Mr. Slippery]

Do you really think that the RIAA considered going around in a car in the 70s and 80s and stopping kids with portable 8-track players, Walkmans and boom boxes and demanding that they produce proof of ownership of the music?

In the 1980s, back when LPs and cassette tapes were all the rage, there were record rental stores. The RIAA managed to smash this by getting Congress to pass the "Record Rental Amendment" in 1984.

So, yes, the RIAA was concerned with copying back in the days of Walkmans and boom boxes. (8 tracks were a little earlier, Junior.)

Re:the thing with jury trials is...

[m2bord]

this goes back some time ago but in my hometown, a medium sized city with a population of 350K, local radio stations used to sponsor album copying events and members of the bands and once in a while a label representative would be there. it always corresponded to a tour stop or some other event where the band would be in town anyway.

if you brought a cassette tape, the station would make a copy of the lp for you...but like i said...that was a LONG time ago...mid 80's.

so while it may not have been legal...it was clearly sanctioned by the bands and the labels involved.

Re:the thing with jury trials is...

[east coast]

So, yes, the RIAA was concerned with copying back in the days of Walkmans and boom boxes.

I never said they weren't concerned. Why is it that Slashdotters love to read something into what was never said and then have the balls to come off smug about it? But since you bring it up: once again you're talking about a central hub of "piracy" and not breaking down to the level where you were pursuing the man on the street. It kinda makes me pissed that I have to convey this message is such a fashion but since people want to read their own thoughts into my posts while missing the entire point...

(8 tracks were a little earlier, Junior.)

Huh? I clearly remember 8-tracks in the 70s. I owned quiet a few myself. Oh, that's right, you were too busy putting some words into my post that I never typed to be bothered with reading what I had written in black and white, gramps.

And as a further FYI: (From Wikipedia) There is a debate among collectors about what was the last commercially released 8 track by a major label, but many agree it was Fleetwood Mac's Greatest Hits in November 1988.[2] The last 8-track tapes by major recording companies were from record and tape clubs in 1988 like RCA (BMG Music) and Columbia House (CRC). There are reports of bootleg 8-track tapes being made in Mexico as late as 1995 [1]. Some independent artists have released 8-track tapes as late as 2006 [2].

So shove it.

Re:the thing with jury trials is...

[Anonymous Coward]

http://www.gloob.tv/celebs/last_fan_standing

i just had to....

Re:the thing with jury trials is...

[djmurdoch]

so while it may not have been legal...it was clearly sanctioned by the bands and the labels involved.

If they were the copyright holders, they'd be able to give you permission to make copies, so that would be legal.

What would probably not be legal (then or now) would be for you to make a copy for your friend without obtaining permission first. For some time it was illegal even to make a copy for yourself, but that was eventually decided to be fair use. (This is based on my very limited knowledge of US law; in other countries the rules vary quite a bit on what non-commercial copying is legal.)

Re:the thing with jury trials is...

[graphicsguy]

In the 1980s, back when LPs and cassette tapes were all the rage, there were record rental stores. The RIAA managed to smash this by getting Congress to pass the "Record Rental Amendment" in 1984.

That's pretty interesting. I suppose rentals (and the associated copying) may not have been as good for the music business as it has turned out for the movie business. Perhaps because people may listen to the same song hundreds of times, but only want to watch the same movie once or twice. Of course, the movie industry went nuts over VCRs at the time, too.

Re:the thing with jury trials is...

[graphicsguy]

my question has always been, "why was it okay for my to make copies of my vinyl albums, put them on cassette, and give it to a friend but it's not okay for me to make a copy of a cd and give that cd copy to the same friend?"

This is the police! Come out with your hands up!

Re:the thing with jury trials is...

[awarlaw]

Great. so now I have to find the Laws that make it LEGAL to do something....Jeeesh

Re:the thing with jury trials is...

[Ken D]

IT's right there: http://www.copyright.gov/title17/92chap10.html#1008

No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. emphasis added.
Note that it does NOT say, "for personal use only", it says "for noncommercial use"

Re:the thing with jury trials is...

[east coast]

This article is about recording devices and the medium, not the content of the medium. Also note that the article never touches on distribution of copyrighted materials, that's what is largely at question.

You're taking a snippet of the whole out of context and that's a dangerous thing to do in law.

But if you really think you're right feel free to contest it in a court of law. I'm pretty sure I already know how it will turn out for you.

Re:the thing with jury trials is...

[Ken D]

The content of the medium is the only possible thing you could bring a copyright infringement action on.

And my original post was in response to the people asking "when was it ever legal for you to make tapes of your albums?". And the answer is "right after the AHRA was passed."

Re:the thing with jury trials is...

[CodeBuster]

no one can predict how a jury will vote. it's a 50/50 shot.

That is one of the best parts about them. They have the potential to be a great equalizer in a dispute between powerful organizations and average citizens. What do you figure your chances would be in the absence of such an accommodation? Slim to none perhaps?

Re:the thing with jury trials is...

[Mr. Slippery]

But since you bring it up: once again you're talking about a central hub of "piracy" and not breaking down to the level where you were pursuing the man on the street.

"Central hub"? No. The "threat" was that "the man on the street" was going to tape albums, not that record rental shops were cranking out pirate copies.

I clearly remember 8-tracks in the 70s.

Uh, yes. As I said, they (or at least their heyday) were earlier than "the days of Walkmans and boom boxes."

Re:the thing with jury trials is...

[east coast]

"Central hub"? No. The "threat" was that "the man on the street" was going to tape albums, not that record rental shops were cranking out pirate copies.

But it's still a central hub. Or are you claiming that it's the servers of eMule that are downloading the material? How does that stand with the question of BitTorrent?

Uh, yes. As I said, they (or at least their heyday) were earlier than "the days of Walkmans and boom boxes."

Nice attempt at a save. What you said was that 8-tracks came later (in a fairly snide fashion, I may add). My post cleary remarked "70s and 80s". My original comment that the snide remark was made about had nothing to do with record rentals. So I don't know where you come off being self-righteous about it.

You can record any broadbast media.

[Anonymous Coward]

Americans anyway have the specific right under the Home Recording Act to copy any and all broadcast media that they like. You don't need a license, you simply need blank media. This is why the RIAA is fucked and knows it. They already lost. This whole thing has been a sham from the beginning.

In fact, I suspect many of the early tracks you saw on Kazaa and the like were obviously just stream rips that people had posted back up as P2P file transfers. Yes, that uploading part is technically a violation of copyright, but barely so and only in very questionable legislative form because of the highly shady last minute amendments tacked onto Clinton era No Electronic Theft Act. Moreover, this shady amended legislation only applies within the United States and clearly the Internet exists beyond the United States.

Even if it wasn't, it's still all academic because all of that same media can legally be copied for free and completely with the protection of the law of the United States through the Home Recording Act.

See Wikipedia "Audio Home Recording Act" for a summary.

Here's some key excerpts on the digital amendment to that act that clearly make it acceptable to digitally record digital streams for personal use.

===
  The Audio Home Recording Act of 1992 (AHRA) amended the United States copyright law by adding chapter 10 "Digital Audio Recording Devices and Media." The act enabled the release of recordable digital formats such as Sony and Phillips' Digital Audio Tape without fear of contributory infringement lawsuits.

. . .

The Act also includes blanket protection from infringement actions for private, non-commercial analog audio copying, and for digital audio copies made with digital audio recording device

===

If it were illegal to make free copies of digital media then you wouldn't be able to buy DVD burners and blanks. It's that simple.

Re:You can record any broadbast media.

[OSPolicy]

>If it were illegal to make free copies of digital media then you wouldn't be able to buy DVD burners.

It's illegal to murder people, but you can still buy guns.

>The Audio Home Recording Act of 1992...

I'm reasonably sure that you have your citation wrong here. AHRA (P.L. 102-563) states as its purpose the following:

    An Act to amend title 17, United States Code, to implement a
    royalty payment system and a serial copy management system for
    digital audio recording, to prohibit certain copyright
    infringement actions, and for other purposes.

The closest the Act comes to saying what you say it says is 17 USC 1008:

/=========
No action may be brought under this title alleging infringement of copyright based on the ... noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings.
\=========

However, there were laws passed after 1992 and the 1992 Act covers only noncommercial copying for space shifting and backup. Once you change from talking about copying to talking about distribution, the doctrine of Fair Use comes into play (17 USC 107) and your argument starts to fall apart.

Re:You can record any broadbast media.

[Anonymous Coward]

Nice try troll.
      Once again, I refer the readers to the act directly or at least the Wikipedia article of the same name. This above post is apparently an astroturfer.

      Don't believe the hype. The fact that what he is saying is bullshit is precisely why the industry had to back off the DRM requirement on the webcast deal.

How about this?

[Stormcrow309]

Maybe my thinking is a little wacky. However, how about someone scan through the files that RIAA say that they "own" and look for any infected by viruses. Wouldn't RIAA be responsible for that? I think establishing ownership for data could be very expensive in secondary consequences.

Re:How about this?

[Anonymous Coward]

A moron posts an anti-RIAA comment that is completely ridiculous, and gets a 5. /. moderation is seriously flawed.

Re:How about this?

[StikyPad]

How is that ridiculous? Let's say the music in question happened to signal space monsters to attack the Earth after it was broadcast? Wouldn't the RIAA in many ways be liable for any potential damages by said space monsters? I don't think it's a stretch to say that the effects of completely irrelevant happenstance should be pinned squarely on the RIAA. To put it simply, if Canada won't take the blame, the RIAA must. And Canada won't. I asked.

Defense Fund?

[rlp]

Is there a defense fund we can donate to?

Re:Defense Fund?

[tereastarr]

Any donations may be sent to Ms. Thomas' attorney:

Chestnut & Cambronne
c/o Mr. Brian Toder
3700 Campbell MithunTower
222 South Ninth Street
Minneapolis, MN 55402

Don't forget to include the case number [06-cv-1497 (MJD/RLE)] in any correspondance with Mr. Toder.

But it is important

[tkrotchko]

"There may be some irregularity in the copyright ownership. But noone seriously contends that the defendant owns the copyright."

Absolutely right, but it is important. Otherwise, you or I could sue this person for copyright violation. But that doesn't make sense. I can't ask the police to arrest you for trespassing on my neighbor's property. And I can't enforce somebody else's copyright.

And assuming the person were to lose the copyright infringement case, wouldn't they have to award damages to the copyright holder? What if it turns out the copyright holder had no interest in suing widows and orphans?

I think this is not trivial.

Re:But it is important

[j00r0m4nc3r]

I can't ask the police to arrest you for trespassing on my neighbor's property

Well, you can ask...

Re:But it is important

[Anonymous Coward]

"I can't ask the police to arrest you for trespassing on my neighbor's property."

I don't think you can even ask the police to arrest someone for trespassing on your own property. It's a civil matter.

Having said that, you are entitled to require them to leave, and if necessary eject them using reasonable force. This is obviously a sensitive situation, and could well lead to a breach of the peace, which WOULD bring the police into play. So a policeman who is conducting himself properly, arriving at the scene of such a trespass, would probably want to ensure that the trespasser left rapidly and that no such disturbance arose.

I suspect that this would be the case even if the trespasser was on someone else's land, and you were the one who drew the police's attention to it. The police will expect to sort out minor injustices before they become larger crimes. So too with the courts. I don't suppose they will be fussed about whose copyright was breached - obviously someone's was!

Re:But it is important

[dmatos]

In Canada, at least, tresspass at night is an indictable offense. That means that if someone is tresspassing on your property (or on property that you were charged to protect) after sunset and before sunrise, you are allowed to place them under citizen's arrest, and hold them until you can hand them over to an officer of the law. As part of placing & holding someone under citizen's arrest, you are allowed to use reasonable force to detain them if they try to resist or escape.

If it's not nighttime, then tresspass is just a summary offense, and a citizen is not allowed to make an arrest in that case.

While we're playing what if's...

[Jeff85]

While we're playing what if's...

Same scenario as far as

I own a CD, a friend owns the same CD. He doesn't have a CD-ROM on his computer.

What if my friend makes a copy of his CD using my computer, then downloads it onto his computer from mine (assume we don't have any external memory storage device). Is it okay then?

Re:While we're playing what if's...

[mwvdlee]

IANAL. Let me repeat that: IANAL. With emphasis: IANAL.

AFAIK, all fair-use requires is that it's the owner that click the "copy" button. ...But I'm probably way-off on this.

RIAA loosing a jury trial

[Anonymous Coward]

Lets go baby..

It's time to rock and roll. Your goin' down honky. You've pimped and prostituted enough around here and now its time to pay the piper. :-)

Re:RIAA loosing a jury trial

[piojo]

I believe they are not "loosing" it, but rather trying to prevent the jury trial from being loosed.

Wrong question

[dazedNconfuzed]

my question has always been

Your question is premised on the notion that copying & distributing vinyl is/was legal. It's not.
Your question is also premised on the notion that the IP owners know and care about that one copy (vinyl or CD). They don't.

Presumably your question really is: "If I make & give away one copy and can get away with it, why can't I make & give away unlimited copies and get away with it?"

The answer to that should be obvious.

Make and distribute one copy, and the IP owners don't know or care.
Provide unlimited worldwide duplication & distribution, and the IP owners will notice and care.

The judge wont accept this

[jgarra23]

Adjudication for a summary judgment when requested by the petitioner only gets accepted when there is gross procedural negligence on the side of the respondent. Otherwise, in cases when the petitioner requests it, it is a violation of due process as the respondent is entitled to a trial and judgment by his/her peers.

This isn't really news, this is just regular procedural paperwork. Any lawyer will file anything to at least try to get something past a judge if it looks like it ha an ounce of merit... fucking lawyers...

Isn't that their function?

[Interested Bystander]

Frightening people into a payoff even if they haven't done what they are accused of? Justice priced high enough that most individuals will just pay the protection money is how they operate. For most folks it is just easier and cheaper (win or loose) to pay off vs cost of lawyers, and lost wages from time missed from work, not to mention stress. If you win; Loose and the financial burden is even larger.

There in lies the rub

[popsicle67]

This is how I feel everybody should fight this battle. Make the RIAA first prove that it has standing in the case. Judges should have been doing this from the start of this mess but they have been curiously incurious.

They're lawyers for the RIAA

[crovira]

of course they have "contempt of court" issues.

The law and you

[westlake]

Let's take this summary point by point:

The RIAA has filed a motion for summary {judgement.] If the judge rules in their favor...it may turn into a...situation where the only thing left to be decided are the damages.

Well, yeah. In a motion for summary judgment, you are asking the judge to rule that the defendant hasn't got a case worth taking to trial - no matter how generously how you read the arguments in his favor.

Thomas argues that since she lacks the financial means to..track the ownership of [the] songs she is accused of infringing, her only opportunity to determine their true ownership is via discovery or cross-examination at trial.'

Her lawyers want a trial to determine whether the RIAA should sue her as the representative of Label X or as the representative Label Y? There is no real doubt that the recordings are still under copyright?

Ars also notes that the RIAA's biggest fear is of losing a case. 'A loss at trial would be catastrophic for the RIAA. It would give other defense attorneys a winning template while exposing the weaknesses of the RIAA's arguments. It would also prove costly from a financial standpoint, as the RIAA would have to foot the legal expenses for both itself and the defendant. Most of all, it would set an unwelcomed precedent: over 20,000 lawsuits filed and the RIAA loses the first one to go to a jury.'"

Cases are lost at trial all the time.

You don't get that far unless the parties are pretty evenly matched. But establishing meaningful precedent is extraordinarily rare.

The problem here is that you are really looking only at the admissibility of evidence used to prove infringement and the weight to be given that evidence. The burden of proof in a civil case is light and relevant evidence is rarely excluded.

Re:The law and you

[Svartalf]

Her lawyers want a trial to determine whether the RIAA should sue her as the representative of Label X or as the representative Label Y? There is no real doubt that the recordings are still under copyright?

You missed the detail that at least part if not all of the titles the RIAA are suing over are not with Member labels.

This means that they do not have standing to be pressing suit over an infringement of the rights on those files.
It means the case might very well get dismissed as RIAA doesn't have standing to press the suit as it is formed in the first place.

Re:The law and you

[westlake]

You missed the detail that at least part if not all of the titles the RIAA are suing over are not with Member labels.

If the only issue is in dispute is who owns own the copyrights what makes the story worth posting? In a thousand cases P2P how many times will that line of attack be worth pursuing?

Re:The law and you

[NewYorkCountryLawyer]

If the only issue is in dispute is who owns own the copyrights what makes the story worth posting? In a thousand cases P2P how many times will that line of attack be worth pursuing? Hi westlake.

1. It's not the only issue in dispute. The whole case is in dispute. This defendant didn't do any file sharing.

2. The copyright ownership is a great issue to hammer them on. These arrogant vermin happen to be very sloppy about their copyright paperwork, and if they lose on 1 song the verdict could cost them millions of dollars.

I Don't See How the RIAA is Worried

[asphaltjesus]

..over 20,000 lawsuits filed...

This, ladies and gentlemen is the entire point of the exercise. Induce the consumer behavior to check with the RIAA members before doing anything with the media you have legitimately purchased.

"Check with us before doing anything with the media you purchased or else we'll drag you into court." is the explicit threat. That one in 20,000 isn't going well is a fantastic track record. The RIAA is already lawyered-up and ready to drag it out. What individual can afford the fight? Certainly not the ones the RIAA has chosen to prosecute.

And yet nothing will be done by American consumers to reign in another abusive cartel.

Re:I Don't See How the RIAA is Worried

[css_crazy]

On the contrary, sooner or later we are going to crush these people. Wait and see.

MOD parent up. +1 funn y

[Dimentox]

Thats really funny.. Its a first that a slash dot post got a chuckle out of me..

RIAA is wishful, maybe

[Anonymous Coward]

Because the suit is that what the defendant is doing is an infringement of their copyright. Well, there are many ways in which that can be false when they have the copyrights fair and square:

1) It is fair use (copyrights do not control this action)
2) It wasn't the defendant (murder still illegal, even when someone was murdered you can't be done for murder if you didn't actually commit the murder)
3) A fine must be adjudicated as right and proper AND PROPORTIONATE before it can be applied
4) RIAA/member has not proven the defendant did it to a level appropriate for the charge to be brought (I can say "you stole it" but bringing it to court requires I have some proof)

and so on.

"Slashdot requires you to wait between each successful posting of a comment to allow everyone a fair chance at posting a comment.

It's been 1 hour 18 minutes since you last successfully posted a comment"

Re:RIAA is wishful, maybe

[Anonymous Coward]

2) It wasn't the defendant (murder still illegal, even when someone was murdered you can't be done for murder if you didn't actually commit the murder) Actually this is false at least in some jurisdictions (uk certainly), If I tell you to kill him and you do. I am
guilty of murder, you are acting as my instrument (you're just as guilty too).

Some interesting side notes...

[Bonewalker]

List of songs from the article:

• "Appetite for Destruction"
• "The Comfort Zone"
• "Control"
• "Frontiers"
• "Let it Loose"
• "Get a Grip"
• "Hysteria"
• "If You See Him"

Based on the titles, if these aren't RIAA anthem songs, I don't know what would be. No wonder they want to get her!

Also... A handful of defendants have managed to be exonerated, most notably Debbie Foster, Patricia Santangelo, and Tanya Andersen--who is now suing the RIAA for malicious prosecution. Why are all the women getting off? If Jammie Thomas wins, there's another one! I am pretty sure men are being discriminated against...or are only women actually fighting the RIAA?

Re:Some interesting side notes...

[Macgrrl]

Also... A handful of defendants have managed to be exonerated, most notably Debbie Foster, Patricia Santangelo, and Tanya Andersen--who is now suing the RIAA for malicious prosecution. Why are all the women getting off? If Jammie Thomas wins, there's another one! I am pretty sure men are being discriminated against...or are only women actually fighting the RIAA?

Another possible theory is that the RIAA perceive women to be in the same category as children and pensioners - easy marks who will fold and pay up rather than fight, and are consequently sueing more women than men.

Mod funny please!

[Carlinya]

Mod up please. It's hilarious!

It's not wrong, it's Right, and it's your Right

[Anonymous Coward]

Gawd, you are truly are brainwashed idiot. A toady of the MAFIAA. You truly have swallowed, hook line and sinker, the MAFIAA's propaganda about downloading being wrong.

The MAFIAA is a truly evil group. Their members are not only deliberately hindering the progress of Internet Radio, but they will use any tactic (legal or illegal) to maximize their cash-flow. This includes root-kits, spyware, and their attempts to control your computer.

You might like and enjoy that. And enjoy feeding some Producers cocaine habit. But I don't. Nor do most people. People have a right to fight these tactics and destroy this gang of criminals. And I intend to do just that.

Everyone should download as much as they can. Remember, if you hit the 2000 mark and the MAFIAA comes after you with their standard settlement, that's less than $1 per song. Even more makes it cheaper, and that's if they notice.

No penalty for repeated voluntary dismissal?

[Anonymous Coward]

If they can't get "summary adjudication" -- which I predict they can't because I think the judge is much too smart for that -- they will move to voluntarily dismiss their own case, as they did in Capitol v. Foster, Interscope v. Leadbetter, Priority Records v. Candy Chan, Elektra v. Santangelo, and others.

A voluntary dismissal once or twice might simply indicate a genuine mistake, but that's clearly not the case with the RIAA --- they're abusing the legal process for strategic commercial gain. Doesn't this kind of thing (when repeated systematically) carry any penalty at law?

No possible way for a "fair" trial..

[Taelron]

Reason RIAA is running scared before a Jury trial is that typically a Jury will side more often with the underdog. RIAA is a corporation while the defendant is a lonely individual trying to fight off the beast. That alone wins over part of the jury.

RIAA has gotten a ton of negative press over the years, and well deserved negative press - dont get me wrong, but as such, they have been shown in the media/news acting like gangsters and trying to strong arm and intimidate people into coughing up extortion money. No one, except people getting their paycheck from RIAA or its partners, have a favorable view of them... Its also been pointed out that RIAA doesnt appear to pass on any of the money they recover back to the "artists" that they are sueing on behalf of... How isnt that extortion? They sue you because you didnt legally buy the music on the grounds the studio and artist didnt get their fair earned money. Yet after you pay, they dont recoup the artists... Hmm maybe we need some artists to file lawsuits against RIAA to get their proceeds back, now that would make an interesting story and case...

Still, RIAA is well perceived as the evil empire. Its highly likely a jury of every day people will side with a corporation that then know is thats to villianize them for profit. Regardless if RIAA has a good strong case or not, they will loose it on the grounds of human empathy and disdain for their past public actions. RIAA's only hope in the case going to Jury is to file motion for the judge to throw out the jury decission based on bias, or to keep appealing the decission, just dragging the whole thing out and ramping up costs.

Q.E.D. == Quite Easily Demonstrated

[Nom du Keyboard]

We are The Record Companies.

We own the copyrights to all the music you'll ever want to listen to.

Q.E.D. Because we own all copyrights, we own these copyrights and you must pay us.

There really is only One Record Company now, despite the fiction of several different names. We think alike. We act alike. We sue alike. We settle alike. Q.E.D.

Anyone above the age of 10?

[triskaidekaphile]

Uh oh, the triplets turn 11 in a few months! Quick! How do I configure my firewall to prevent them from bringing doom upon us?? Or do I have to cut off my Internet connection altogether (thus bringing doom upon us)???

It's about costs, not fear

[Anonymous Coward]

The RIAA doesn't want to take these cases to court because that is expensive for them. She's guilty. Quit stalling and wasting everyone's time and money.

FTA:
"and prevent the "unnecessary expense of litigating issues about which there is no dispute.""

Sure it will

[Sycraft-fu]

All cases argued to conclusion in court set precedent. How strong depends on a lot of things of when a conclusion is reached in a competent court that has jurisdiction over the matter, a precedent is set. What do you think the word means? It then becomes something people can cite in later cases. Doesn't mean it will be an overwhelming precedent, but don't think that it doesn't count for something.

Re:Sure it will

[calbanese]

This is wrong. A District Court decision is not binding on any court. No other court is required to follow that ruling. Other court may cite any decision reached by a judge as persuasive, but its not binding. And this only occurs when there is a decision by a judge either via pre-trial rulings or a bench trial.

Juries are only used in Federal District Court. When a jury renders a verdict, there is no decision. Therefore, there is nothing to cite as precedent. On appeal to the Appeals Court for a circuit, that decision is precedent. It is binding only on other district courts in that circuit - all other courts in other circuits are not required to follow that decision. It may be used as persuasive authority outside that circuit, but no court outside the jurisdiction of the appeals court rendering the decision is required to follow it.

Trust me on this - its what I do all day, and often all night long. No one cares what a jury does. It can't be cited. Juries decide facts, not law. Very few courts care what a district court judge says in any decision of law. And unless its 5th, 7th or 2nd Circuit, no other courts will care much about what a Court of Appeals says anyway. Its why things like circuit splits exist.

Re:Sure it will

[NewYorkCountryLawyer]

This is wrong. A District Court decision is not binding on any court. No other court is required to follow that ruling. Other court may cite any decision reached by a judge as persuasive, but its not binding. And this only occurs when there is a decision by a judge either via pre-trial rulings or a bench trial. Juries are only used in Federal District Court. When a jury renders a verdict, there is no decision. Therefore, there is nothing to cite as precedent. On appeal to the Appeals Court for a circuit, that decision is precedent. It is binding only on other district courts in that circuit - all other courts in other circuits are not required to follow that decision. It may be used as persuasive authority outside that circuit, but no court outside the jurisdiction of the appeals court rendering the decision is required to follow it. Trust me on this - its what I do all day, and often all night long. No one cares what a jury does. It can't be cited. Juries decide facts, not law. Very few courts care what a district court judge says in any decision of law. And unless its 5th, 7th or 2nd Circuit, no other courts will care much about what a Court of Appeals says anyway. Its why things like circuit splits exist. I understand what you're saying, but you have to realize a few things that are different here.

There are 30,000 cases, and counting, all of which are virtually identical. And the whole litigation campaign isn't about any one case for the RIAA. Each case in and of itself is only worth from $5000 to $8000 for the RIAA. The cases are about creating a mass fear of using p2p file sharing, to help the record companies maintain monopoly power on the internet. Now given that as the backdrop, take these 3 things into account.

1. A fact finding against the record companies would -- under collateral estoppel -- be binding against the record companies for all time. E.g., let's say something small and innocuous -- such as a holding that 1 of the 12 songs being sued for, a song by Mariah Carey, was not validly copyrighted -- came down from that jury. It could cost the applicable record company millions. Now let's say the jury comes to a conclusion on something big -- such as the fact that the record companies have been engaged in illegal collusion in restraint of trade. That finding would be binding for all time, and would put the record companies out of business once the rest of the world got wind of it.

2. The events in the RIAA cases are now being publicized worldwide. If a jury came in with a general verdict against the RIAA, it would mean hundreds or thousands of future defendants -- who might otherwise have marched to the slaughter and written out the extortionate settlement payment check -- will now consider fighting back. And it means that some lawyers otherwise reluctant to jump into this fray will be jumping in.

3. The RIAA's primary defense to the copyright misuse counterclaims has been to try to hide behind the Noerr Pennington defense. Noerr Pennington doesn't protect sham lawsuits, which the RIAA lawsuits are. So the more trials they lose the easier it will be for those lawyers making the sham lawsuit argument.

So technically it might not be a "precedent", but in a generic sense it would be a huge "precedent".

Re:Sure it will

[calbanese]

Yes. I agree with you for the most part. It is definitely a good thing. Its not like a jury verdict against them will bar any suits in the future, but it might make them more leery of bringing these half-assed suits. Just the idea that they could lose and give defense attorney's a guide to winning these suits could be enough to dissuade most of their fishing expeditions. Its just that the idea that a jury verdict against them will somehow mean that the RIAA can no longer sue filesharers is ludicrous. And from a legal standpoint, it won't accomplish much.

As for collateral-estoppel, I'm not sure how useful that would be. I guess if they always sued based on the same songs being shared then that would work. But after trial, they could register the songs and then bring suit against people sharing the properly registered titles after the the registration date. It would only help those who are already being sued for sharing the same exact songs prior to the registration date. But if different songs are at issue, collateral estoppel won't prevent them from arguing that they were properly registered.

As for Noerr-Pennington, I know the anti-trust aspects of the case but am not familiar with the exceptions to it, or how the RIAA is trying to use it, so I won't comment on that.

Re:Sure it will

[NewYorkCountryLawyer]

Yes. I agree with you for the most part. It is definitely a good thing. Its not like a jury verdict against them will bar any suits in the future, but it might make them more leery of bringing these half-assed suits. Just the idea that they could lose and give defense attorney's a guide to winning these suits could be enough to dissuade most of their fishing expeditions. Its just that the idea that a jury verdict against them will somehow mean that the RIAA can no longer sue filesharers is ludicrous. And from a legal standpoint, it won't accomplish much. As for collateral-estoppel, I'm not sure how useful that would be. I guess if they always sued based on the same songs being shared then that would work. But after trial, they could register the songs and then bring suit against people sharing the properly registered titles after the the registration date. It would only help those who are already being sued for sharing the same exact songs prior to the registration date. But if different songs are at issue, collateral estoppel won't prevent them from arguing that they were properly registered. As for Noerr-Pennington, I know the anti-trust aspects of the case but am not familiar with the exceptions to it, or how the RIAA is trying to use it, so I won't comment on that. They use the same investigator in all the cases. They use the same expert witness in all the cases. They use the same software and hardware in all the cases. They operate all the cases under the same set of agreements. An adverse factual determination in one of the cases could cripple their litigation campaign.

An adverse determination on one of the copyrights wouldn't just be applicable to p2p cases against consumers, it would be available to any adverse party, and anyone who wants to infringe on it. And not all defects in title are curable.

Avoid A Jury Trial?

[Artagel]

The idea that the firm that won the trial on the Exxon Valdez case (Faegre & Benson)http://www.faegre.com/articles/article_751.aspx is afraid of jury trials is silly. They are just trying to save the judge time, and the client money.

Re:Avoid A Jury Trial?

[NewYorkCountryLawyer]

The idea that the firm that won the trial on the Exxon Valdez case (Faegre & Benson)http://www.faegre.com/articles/article_751.aspx [faegre.com] is afraid of jury trials is silly. They are just trying to save the judge time, and the client money.M The lawyers aren't afraid. Why would they be? That's how they make a living.

The RIAA is afraid because they will lose.

Who do they work for ?

[Joebert]

Who does the RIAA work for ?

What would happen if artists started filing lawsuits against the RIAA for failing to protect their intrests or somthing ?

Re:Who do they work for ?

[NewYorkCountryLawyer]

Who does the RIAA work for ? It works for 4 big record companies, 1 of which is in the US.

Blank Media Tax?

[Anonymous Coward]

Isn't it though? I thought a Private Copying Levy existed in the United States to cover those kinds of scenarios? Does anyone know of any legal precedent of the 'blank media tax' being used as a successful defense in a case in the United States?

Apparently some years ago there was a /. article where that defense was used successfully in France.
(From the /. summary, link here):
"A french appeal court ruled yesterday in favour of somebody who downloaded about 500 movies, on the ground that those were private copies, and that he didn't redistributed them, and that a tax was payed on blank media."

Re:Blank Media Tax?

[djmurdoch]

Isn't it though? I thought a Private Copying Levy existed in the United States to cover those kinds of scenarios? Does anyone know of any legal precedent of the 'blank media tax' being used as a successful defense in a case in the United States?

I'd be interested in hearing about a case like that. I don't know the French rules, but that defence would certainly work in Canada: here we have a private copying right, regardless of whether we copy on to levied media. My reading says that the US law only applies to copies onto specific media, but I've no idea how common those media are.

Wrong Conclusion

[herbierobinson]

Asking the court to determine that "the defendant wasn't authorized to copy or distribute the recordings" is not the same as asking the court to rule that the defendent actually distributed. It would seem pretty obvious that the defendant had no legal authorization to distribute. Whether they were distributing or not is, of course a much dicier issue, but not what the RIAA was asking for a judgement on.

Laying a Trap

[herbierobinson]

This could be the RIAA laying a trap, couldn't it? If they lose the motion and win the case, might there be a way they could try to use this to inflate any legal fees they claim the losing party should pay? As in "the defendant wasted a huge amount of time on fishing expeditions; so, they should pay the RIAA's legal fees". Of course, there is always a chance the Copyright registrations are invalid, but given that they have already gotten burned by that in other trials, it seems pretty unlikely.

It would seem a lot safer to just contest things like the questionable qualifications of the investigators and whether there is any real proof of copyright infringement.

Not Wishful thinking

[MacWiz]

According to TFA, the defendent *still* doesn't have the copyrights to the songs, even if the registrations are wrong - in that case, the registered copyright is still to record companies.

That is exactly what the RIAA wants to stipulate, which relieves them of the burden of actually produce the copyrights to prove that they do, in fact, own the songs in question.

Here's why it is important, and not just in Jammie Thomas' case:

Back when the RIAA was suing mp3.com, they were ready to bring in a pile of thousands of copyright forms to establish that they were the true owners. But here's the thing... some of the artists have the wild-ass, crazy idea that maybe they might own those songs. As a result, they didn't the copyrights forms to be introduced as evidence because this could make it difficult to challenge the label's claim to ownership later.

The backlash from the artists on this point was enough to make the RIAA settle the mp3.com case out of court.

I'd be surprised if the RIAA actually starts producing copyright forms. So will Sheryl Crow.