RIAA Complaint Dismissed as "Boilerplate"

NewYorkCountryLawyer writes "The decision many lawyers had been expecting — that the RIAA's 'boilerplate' complaint fails to state a claim for relief under the Copyright Act — has indeed come down, but from an unlikely source. While the legal community has been looking towards a Manhattan case (Elektra v. Barker) for guidance, the decision instead came from Senior District Court Judge Rudi M. Brewster of the US District Court for the Southern District of California. The decision handed down denied a default judgment (i.e. the defendant had not even appeared in the action). Judge Brewster not only denied the default judgment motion but dismissed the complaint for failure to state a claim. Echoing the words of Judge Karas at the oral argument in Barker , Judge Brewster held (pdf) that 'Plaintiff here must present at least some facts to show the plausibility of their allegations of copyright infringement against the Defendant. However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works, Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation.'"

Comments

magine that riaa

[circletimessquare]

you can't change reality with a lawsuit

reality: your business model is history

think up a new business model, and stop trying to prop up the dead one with the court system

a new business model means less money? too bad. the golden age is over. fucking deal with it and stop sending your barking dogs to terrorize little people in your rage and frustration and denial

Re:magine that riaa

[click2005]

a new business model means less money? too bad. the golden age is over.

Quite a few studies have shown that new business models would earn them even more money. It seems more that they aren't content with a slice of pie, they want it all. The notion of IP (intellectual property) has given them the excuse to try to get everything they can, even when things such as fair use and respecting your customers get in the way.

Re:magine that riaa

[Dynedain]

Bizarrely enough, your comment works equally well in the previous story regarding Verizon and the FCC radio spectrum auction.

Re:magine that riaa

[adona1]

Indeed, they should listen to the Patrician and realise that instead of fighting, they should accept a smaller slice but enlarge the pie. There would be lots of $$ to be made if they looked to the future rather than the past.

Re:magine that riaa

[Abcd1234]

The interesting thing is, this is basically what Nintendo did with the Wii...

Are these people morons?

[lawpoop]

What is the deal with this RIAA/MPAA situation? Are these organizations run by total morons? I'm not trolling, but it seems like they aren't putting one iota of serious effort into this. Are they so cynical, moneyed, and jaded, that they think nothing of suing mothers and teenagers apparently just for the hell of it? How can they do such a lousy effort this yet be one of the largest sectors of industry?

The longer I live, the more I am in a state of sheer awe that society doesn't come apart like Britney Spears fan on youtube.

Re:Are these people morons?

[ackthpt]

How can they do such a lousy effort this yet be one of the largest sectors of industry?

Perhaps they're more accustomed to people just rolling over with a chilling effects letter. Plenty of hard work keeps things finely tuned, it's evident that there have been a lot of legal people collecting retainer fees who have spent very little time practicing. Seriously, this is pretty amaturish.

Re:Are these people morons?

[Atario]

It's the same reason people continue to spam.

Even if it only works a vanishingly small percentage of the time, applying a tiny effort to loads of people still results in a net gain.

(Except, of course, when you factor in the damage to reputation, but that never stopped the unscrupulous before...)

Re:Are these people morons?

[smittyoneeach]

Are these organizations run by total morons?

No, they are run by zealots with a particular belief system. Society doesn't come apart like a fan on youtube because such zealots and fans, while capable of inspiring "sheer awe" in their lunacy, don't actually represent the "reasonable persons", the silent majority who actually Do Something Useful.

Re:Are these people morons?

[Sheetrock]

They're caught up with the idea that they can continue to play the game by the old rules. They still seem convinced that the Internet will possess and distribute content solely by the terms of copyright holders. Their efforts to deal with copyright violations are disproportionally stick to carrot, and any benefits technology brings to the table with regard to low-cost distribution and promotion are set aside in pursuit of abusing technology to restrict distribution and limit choice.

Irregardless of the ethics of the situation, the reality is that copyright holders are competing with those who appropriate their content and share/copy it for free. One can't beat them on cost, but there are other carrots that could be offered with legitimate purchases -- "live" Internet webcasts of concerts, real concert tickets, audience-prompted cast interview events, mail-in tickets for exclusive merchandise, etc. Such things may even build fan loyalty or otherwise work as positive public relations.

On the other hand, one could sue handfuls of people and hope that's enough to pursuade millions of downloaders to change their evil ways. It does have the benefit of feeling "right", even if it doesn't alter the calculus of the situation one shred.

Re:Are these people morons?

[StikyPad]

Well that's their theory anyway. Whether it is borne out in practice remains to be seen. Clearly it works for SPAM, but these lawsuits clearly cost more to implement than the plaintiffs are receiving in awards. Their hope rests solely on recouping their costs through deterrence, although it's unclear that a decrease in piracy would equate to an increase in sales, so their reasoning may be somewhat flawed.

Re:Are these people morons?

[QuantumG]

Uhhh, since when is music "one of the largest sectors of industry"?

Total music industry revenue is about $40 billion worldwide, and about $12 billion in the United States, per year.

The GDP of the United States is $13.13 trillion, per year.

Compare this to "self storage" companies which make about $22.6 billion, per year.

Companies that supply lock up garages for people who own too much crap make almost twice as much per year as the music industry.

Re:Are these people morons?

[JoelKatz]

The suit to follow is Tanya Andersen's. She has initiated a class action suit on behalf of all innocent people who have been harassed and bullied by RIAA lawyers. In Andersen v. Atlantic, the RIAA will have to defend itself against charges of malicious prosecution, and her case looks like a winner.

Re:Are these people morons?

[suv4x4]

they think nothing of suing mothers and teenagers apparently just for the hell of it?

Some people are trying to justify their job. They're in major stress, and stupid. So they sue mothers and teenagers.

You know, it's the outcome of the system we exist in. Doesn't justify their nonsense, but I thought I'd put things in a little perspective for you.

The moment that worries me is that it took long, long time for the legal system to start (albeit slowly) reacting against those frivolous suits.

RIAA as a private organization can't be trusted to be just and reasonable in the pursuit of its goals. The legal system however was supposed to handle this properly.

Instead, money speaks, as always.

Re:Are these people morons?

[Eivind Eklund]

It's not clear that it is unprofitable. There's only a few boilerplate letters per "lawsuit", and most are settled at $3000 or so. That's a heck of a lot of money for a mailing few letters.

Eivind.

Re:Are these people morons?

[NewYorkCountryLawyer]

It's not clear that it is unprofitable. There's only a few boilerplate letters per "lawsuit", and most are settled at $3000 or so. That's a heck of a lot of money for a mailing few letters. Actually, Eivind,

-only about 20% of the cases result in settlements, and

the RIAA is losing millions of dollars on the litigations.

They make money on quick settlements; they lose money on default judgments; they lose a lot of money on cases that litigate for awhile and then settle; and they lose a fortune on cases where the defendant fights back.

Re:Are these people morons?

[NewYorkCountryLawyer]

Ah, cool, I'm glad to hear that. Thanks! (And thanks for the work you do around this; even though it isn't in my country, it is appreciated.) Thanks for your kind words, Eivind.

I hope your country remains free of this plague, but I will tell you it's an international thing.... they're certainly persecuting people throughout Europe, except for the Netherlands, where the courts astutely saw through their scam from the outset.

Re:Are these people morons?

[MacWiz]

And that $12 billion is more like $10 billion, but even then that's only how much it would have been if everyone had paid the "manufacturer's suggested retail price". Reality is closer to $6 billion.

Re:Are these people morons?

[greenbird]

Total music industry revenue is about $40 billion worldwide, and about $12 billion in the United States, per year.

But you see, that's because they're losing $1.4 trillion due to piracy. There have been studies done proving this. For every song downloaded they are losing the $20 dollars the downloader would have payed for the CD. And don't get me started on the massive losses those leach radio stations are causing. They've got dozens of studies back this stuff up. Just ask them.

Re:Are these people morons?

[NewYorkCountryLawyer]

I think a more likely explanation is that you're simply not privy to their actual strategy. Just because you don't understand it doesn't mean it doesn't make sense. Consider the evidence. The RIAA/MPAA have access to the finest legal minds money can buy, and have spent years of time and millions of dollars on this issue. You are likely not a lawyer, and likely have not spent years or any money at all on this issue. Is it more likely that you, in your brilliance, have seen something they have not, or is it more likely that you just don't know what they're doing? Clearly, it must serve some purpose which they deem worthy of the effort spent on this project. Assume they are fools at your own peril. I have nothing against your personally, but many people share your view. It assumes that the RIAA is run by idiots, and this is unlikely. I think the RIAA/MPAA need to be destroyed, but we will almost certainly fail in this task if we continue to underestimate their intelligence. Conceptually it's helpful to seperate the record companies themselves from the lawyers.

The lawyers here are in the business of making money by doing legal work; the more hours they put in, the more they get paid. Clearly, the lawyers are -- from a business standpoint -- pretty smart. They are getting paid a lot for accomplishing nothing, and for actually causing their clients more harm than good.

The record companies, on the other hand, are in the business of selling music, building brands, creating goodwill among customers, bringing their product out through new technologies, and they're supposed to bring in more money than they spend. Clearly, the record companies are -- from a business standpoint -- pretty dumb.

The lawyers are smart businessmen; the record companies are, at least for the moment, being run by dumb businessmen.

As to having "access to the finest legal minds money can buy", yes they have "access" to the finest legal minds. But if you think they have the "finest legal minds" working with them..... as someone who has worked with and against some of the finest legal minds in our country, I beg to differ with you there. The "finest legal minds" would not even stoop to do the kind of garbage work these folks are doing.

Re:Are these people morons?

[Magada]

The entertainment industry wields a vast amount of power considering how tiny they actually are. Astute observation. Two things are at the root of this:

1. the Holywood complex is made up of people who influence _other people_ for a living. That tends to keep the necessary skills sharp. On the contrary, the software industry makes money convincing _bits of silicon_ to do their bidding, which reflects in their (sorely lacking) marketing/PR/lobbying skills. Even among the successful software players a ham-handed, resource-intensive (read SPAM-ish) approach to public relations is all too common.
2. The Mafia. It wields a vast amount of power and is, for historical and practical reasons, wedded inextricably to Hollywood.

Look at the size of the computer industry, or just the home electronics industry, both orders of magnitude larger, yet they allow themselves to be pushed around by the "content providers". The meme "content producers are pushing around the software industry" is naught but unmitigated bull, pandered by Microsoft in an attempt to veil their attempts at becoming gatekeepers for all media (DRM, TPM, whatever). Apple is trying the same, and failing, but at least they do not misrepresent their intentions.

Media-player hardware producers (Sony and their ilk), otoh, _are_ gatekeepers to media already. The push for DRM is largely theirs, as they do not want to lose that position.

Re:Are these people morons?

[Anonymous Coward]

...it's unclear that a decrease in piracy would equate to an increase in sales...

"Piracy" is a smokescreen. You want the entire top 40? Plug your radio's headphone jack into your PC's sound card, tune to a top-40 station, and sample it. Just let it run for a couple of hours, and you can make MP3s of each and every one of the top 40.

They're not worried about you getting their music for free, they're worried about you hearing indie music. that's what eats into their profits! E.G, say you like Radiohead. Now, if you like Radiohead you're very likely to buy a CD or some iTunes downloads. You heard a snippet of a tune called "The Fog", so you fire up eDonkey or Kazaa or whatever and enter "The Fog", if you like it you'll buy it.

You're very likely to download my friends' band The Station by mistake, who have a completely different song by the same name. You like this song, so you buy their CD or download the song from iTunes. You now have the price of one CD's less worth of cash - and that stops you from buying an RIAA CD.

There's where their fear of "piracy" comes in. The REAL "pirates" are their independant competetitors, with superior quality and lower price.

-mcgrew

Copyright infringement penalties are excessive!

[zymano]

The penalties are not fair and way excessive. The Mpaa has records of all P2p filesharing transactions throught 3rd parties who monitor. Penalties should be spread around to everyone and no a few. $10-20 fine would be good.

http://en.wikipedia.org/wiki/Copyright_infringement

Many people object to the application of copyright to not for profit (or at a loss) distribution or redistribution of copyrighted works. When copyright was created, it was to prevent book publishers from taking an author's work, publishing it, and making profits from the sales of that work without giving a cent back to the author. However, when financial gain isn't involved, as in peer-to-peer file sharing, many feel that copyright is absurd, as no one is truly gaining from the distribution, because ideas, which copyright "protects", are naturally free, just as speech is naturally free--unless the creator of the ideas chooses to keep them secret and outside of public knowledge and distribution. In a similar vein, some argue that since sharing a copy of their data costs nothing, it would be unethical to not share when someone else asks for a copy.

Re:Copyright infringement penalties are excessive!

[suv4x4]

The penalties are not fair and way excessive. The Mpaa has records of all P2p filesharing transactions throught 3rd parties who monitor. Penalties should be spread around to everyone and no a few. $10-20 fine would be good.

You're making me laugh. The fines were originally created to penalize organized crime groups creating bootleg video/audio casettes bring them enormous profits from the copying of a single product.

Fining them $10-$20 for distributing 30 thousand copies of Die Hard 4 would be hysterical.

The law needs to be refined. Exempts must be made, the copyright offense should be considered in the context given.

But even in the case about some kido downloading illegal MP3, $10-$20 is a joke. This is not product cost he's paying, it's a penalty. If you don't buy a ticket when you drive the train, if you're caught they don't just charge you few dollars more than the ticket price. They penalize you for working around the system and not paying in the first place.

I would consider $200-$300 per copyrighted material to be closer to how I see it. And with a ceiling if the offense is subject to one of the exempts (so having too much content at once doesn't make you a slave to RIAA until you die).

Face it: downloading music/movies is in fact not moral or just. It's just a side effect of the industry being too stupid and slow to react to the Internet and adapt its business models to it.

Still, it's not moral or just. We just shouldn't let the industry sue people with loose evidence and enslave them for *maybe* copying some movies on their computers.

The evidence must be goddamn solid.

Re:Copyright infringement penalties are excessive!

[RockModeNick]

I've always found that argument silly, let me tell you, if a girl is a wonder in the sack, even if she's not particularly great looking and comes with baggage, she can sure lure me into a relationship by giving me some free milk.

Re:Copyright infringement penalties are excessive!

[MikeBabcock]

Many people disagree with your judgment on morality and justice. In fact we Canadians have made it perfectly legal to make private copies of music for personal use, no questions asked. Just borrow your friend's CD and rip it to your heart's content, my Sony PS3 even does it for me.

We also allow private copying *and* unmodified redistribution of anything broadcast over public airwaves.

Just because these companies have spent so much money convincing you what you're doing is wrong does not mean it is in fact wrong, just that you've drank the kool-aid.

No facts? Exactly

[Bonewalker]

"Plaintiffs have presented no facts." This is exactly right, and can likely be far more broadly applied than just this case. I think the best argument most folks have is that it is very hard to tie an IP address to a specific user. And they think that just because they provide a screenshot with a list of songs on it that that is damning evidence. Hooray for this judge who has seen through the rhetoric.

Re:No facts? Exactly

[vokyvsd]

No no no no no! Plaintiffs should not have a "plausibility" requirement based on facts presented in the complaint. They are required to present a plausible case if they wish to win, of course, but the facts of the case should be presented after the discovery phase of the lawsuit, during which time they are able to use certain legal tools to aid them in finding the exact facts and natures of the violations.

Requiring the specific facts that make a "plausible" claim upon which relief may be granted to be present in a pleading has NEVER been required until Bell Atlantic v. Twombly was decided by the Supreme Court a few months ago. While the outcome in this particular situation (stopping the RIAA from making a likely frivolous claim) may been seen as a good thing, it is relying on a decision that overthrew decades of legal precedent designed to make sure everyone has their day in court, and had a fair shot at proving their claim.

The Federal Rules of Civil Procedure specifically state that boilerplate complaints are valid. They even PROVIDE THE FORMS for crying out loud. If the RIAA has no case, it should be determined by summary judgment, AFTER DISCOVERY, not by dismissal because plaintiff hasn't presented a plausible case. That is what discovery is supposed to be for, especially in this type of case, where defendant has control of the evidence that may prove their violation, and certainly wouldn't surrender it without a court order.

The Bell Atlantic decision is a broken abortion of justice, and this case is relying on its bad law.

OK, that was a bit melodramatic. But you get the gist.

Re:No facts? Exactly

[NewYorkCountryLawyer]

"Plaintiffs have presented no facts." This is exactly right, and can likely be far more broadly applied than just this case. I think the best argument most folks have is that it is very hard to tie an IP address to a specific user. And they think that just because they provide a screenshot with a list of songs on it that that is damning evidence. Hooray for this judge who has seen through the rhetoric. You've hit it right on the head, Bonewalker. The Emperor wears no clothes. And Judge Brewster had the courage to make the call.

Re:No facts? Exactly

[vokyvsd]

Funny you should bring that point up: Bell Atlantic was a class action suit brought up against a big corporation by the little guy, who couldn't even get to discovery because the Supreme Court decided to add a plausibility requirement to complaints.

Basically, either way is going to leave open avenues for litigious bullying. However, with the new requirement, when the little guy brings a lawsuit against the big guy, and the court decides that the little guy hasn't stated a plausible claim, that's it - there is no legal recourse to prove that there was a violation, because the lawsuit has been dismissed. That's what discovery is supposed to be. Under the old system, with no plausibility requirement, the little guy got bullied, but if he grew a backbone (and money for attorney's fees, admittedly), he could still prove that the big guy was just bullying him. Sure, we're able to dismiss these cases more easily now, but in a few months the lawsuits are going to start being just specific enough to be plausible, because the RIAA has the resources to do a little bit more research.

Basically, under the old system, lawsuits would end at the bullied party's discretion - maybe monetary considerations made it a decision based on more than just the legal merits of their case, but they were the ones who decided to settle. Now, as in Bell Atlantic, there is no way the plaintiffs can do anything more about their claims - the lawsuit was ended at the discretion of the bully (alleged bully - there was never any plausible claim for relief under the Sherman Antitrust Act against Bell Atlantic - but we'll never know if there was evidence that may have made it plausible, will we?).

If (completely hypothetical here, just using the same parties as the actual discussion for convenience) a music downloader brought a suit against the RIAA claiming that they were using lawsuits to scare people or whatever, it would be dismissed because the music companies won't just surrender internal emails or memos discussing this tactic, so there is no plausible claim. If Bell Atlantic hadn't happened, an enterprising plaintiff could bring such a suit, and use discovery rules to compel the companies to divulge such evidence, if it existed.

Like I said, in this particular instance, I'm happy that the lawsuit didn't end with the defendant having to pay either a settlement or damages. However, I think that the law used to achieve this outcome is bad, and will in the long run be a huge detriment to "little guys" everywhere.

My thoughts

[Spy der Mann]

Screenshot? could be photoshopped.
Text Log? could be edited.

If instead of that, you have a text log, verified by the ISP and with a signed statement asserting that this text log effectively shows that the given binary conversation took place at the given time, and that the receiving end has a given MAC address, and if that MAC address can be certainly confirmed as belonging to the accused, now THAT's a completely different story.

Re:My thoughts

[cpt kangarooski]

Screenshot? could be photoshopped.
Text Log? could be edited.

Bear in mind that there is a difference between alleged facts and true facts. For example, imagine a murder trial where one witness says that the defendant was at the scene of the murder, and another witness says the defendant was at home. At least one of these witnesses has to be wrong, possibly both are. The testimony of both are alleged facts, and the trier of fact (often a jury) has to decide what is actually true or not for purposes of the trial.

So there's nothing wrong with submitting a screenshot and a text log that are of dubious accuracy. A jury will decide whether or not to believe it.

Frankly, these cases, even where the RIAA is 100% right in their allegations, are going to be considerably harder to start with the new plausibility rule. Even if they had the sort of evidence you suggest -- which merely goes to how likely it is to be true, as opposed to how plausible the allegations are overall, which is what's become important -- that probably wouldn't be enough. That is, what you suggest is likely to not be enough because it doesn't get in to all the issues that need to be in the complaint.

I'll be very interested to see how things play out.

Different day, same old stuff

[Whuffo]

The members of the RIAA have been enriching themselves as (essentially) statutory middlemen. For decades, any music you listened to came to you through their distribution system; there was no other option.

This internet thing blows their monopoly apart - there's a new method of distribution that's cheaper, faster, and out of the control of the music companies. This presents a problem to them: their "money for nothing" gravy train is threatened. It's no surprise that they're using every tool they can to stop reality from sending them to the realm of the irrelevant.

But since they haven't worked for their money for years, when it comes to taking legal action they don't seem to be willing to put forth an effort there either. This latest decision is an interesting one; significant enough by itself, but it'll cause some big changes for a lot of people...

Unfair time-travel tacticts

[saveourskyline]

FTA:

II. BACKGROUND

Plaintiffs filed a complaint against Defendant on November 14, 2007, alleging copyright infringement. According to the complaint, Defendant used and continued to use an online media distribution system...

The RIAA is using time machines now to go forward in time and file complaints in the future? Now that's just not fair...

just keep it a little longer...

[eknagy]

By frightening people, they are successfully slowing down the business model change which is a consequence of the IT revolution (or Industrial Revolution III).

My guess is that they know it is dying - they just want a little bit more money before discarding the RIAA as "the evil force that forced us to force the old model - but we have a new one now, and we became good and nice).

Re:just keep it a little longer...

[beckerist]

I assumed that the only reason the RIAA was still around was because eventually, when they decide to move on, they can shed the "RIAA" image and with that all the negativeness surrounding them. They will use the RIAA identity for their evil deeds, until being evil is no longer gaining them anything, then drop it like a bad habit (which is most certainly is!)

1980s laws

[blhack]

The laws governing copyright infringement need to be updated. The laws on the books today (or at least their ideologies) were written in a pre-internet era. Back then, pirating large amounts of media in the fashion that we easily can today WAS a serious crime because it actually took a criminal to do it. using the laws of then to govern today is like using an early 20th century speed limit to fine somebody driving a ferrari, or other ultra-high-performance race car.

Re:1980s laws

[the eric conspiracy]

There is no legal principle that grants an exemption from criminality or civil liability because technology has made the wrong easier to commit. The seriousness is always judged by the amount of damage caused.

Note to RIAA Legal

[Greyfox]

Remove "INSERT NAME HERE" from boilerplate when filling in the forms to sue people.

Hmm. Someone should write a perl script to help them. Snag a baby naming database and write a perl script to randomize the names, files shared and IP addresses to output an official-sounding C&D&Pay-us Email. Kinda like foggy, but for a legal document. Yeah. That'd be cool. And probably as accurate and effective as the system they're using now...

Confessions of a convert

[gillbates]

They call themselves the RIAA, but really, they represent companies like Sony, UMG, Time-Warner, etc... The RIAA moniker is used to keep their activities from reflecting poorly on the sponsoring companies.

You know what's interesting? When I was younger, I had heard things about pop music being evil, then rock music being evil, and certainly, gangsta rap was evil. I just kind of dismissed them, thinking, how could listening to music be evil?

Turns out, I was asking the wrong question. The problem wasn't in listening to the music, so much as it was that my paying for music was funding evil things, directly and indirectly. Sure, rappers talking about killing cops isn't a good thing, but it wasn't as nearly as bad as what music purchasers were doing by feeding the record companies:

• I didn't think about it at the time, but the record companies indirectly supported things like drug addiction, misogynism, and even satanism through the bands they promoted.
• I didn't know that I was financing the exploitation of musicians. It wouldn't be until years later that I would learn that record company contracts often leave the band in debt to the record company, as the record company makes record revenues off the music.
• I didn't know that the money I used to buy CD's would later be used to sue single mothers and teenagers.

I can't remember the last time I bought a CD. In fact, I'm probably one of those lost sales the RIAA blames on piracy. The thought that someone might not buy their music because they object to their lack of morality and common decency doesn't even occur to them. They think everyone else is just like them - greedy, money grubbers who can't stand the notion of actually paying for music. (After all, the RIAA member companies do their best to avoid paying the musicians).

You don't need to explain why you don't patronize the RIAA member companies like Sony, etc... Instead, ask the question, "What good has the RIAA done for music, musicians, and society in general?"

The silence will be deafening.

Re:Confessions of a convert

[swordgeek]

So let's see here...

I agree with you. I do. And yet, my brother is a professional musician, and most of the artists I like are barely making ends meet.

How can the artists make a living. The RIAA, for all of its dirty behaviour, at least provided _some_ income for artists--your method provides none.

This has always been the struggle for me: How can I actually support artists (which I will willingly do!) but not the RIAA (who screws the musicians worse than they screw the consumers)?

Any ideas? Without the artists being able to make a living, we'll end up with no dedicated artists at all.

Re:Confessions of a convert

[lawpoop]

Well, I hate to break it to you, but artists really don't make a living. Be it music, painting, theater, acrobatics; it doesn't matter. You just can't do enough to make ends meet. That's why we have the term 'starving artist'.

Any ideas? Without the artists being able to make a living, we'll end up with no dedicated artists at all. If you want dedicated artists, you'll either have to have the state pay for it ( good luck selling that in America ) , or have sponsorships of wealthy patrons and corporations ( selling out, anyone? ). All of the classical music that we get from the middle ages was paid for by the sponsorship of a wealthy patron or financed by the church ( which is why so much is religious ). Folk songs are songs that people sang when the got done working in the fields. The troubadour of medieval Europe was a combination musician, storyteller, and message- and news-carrier -- and also a wandering, starving vagabond. Your local opera, dance ensemble, or theater group exists on government grants, wealthy donors, and perhaps a trust fund. Art is not something that puts food in your mouth. It's something you do after you've put food in your mouth, in order to give your life meaning and a reason to get up in the morning.

The ability to make a living as a musician in the past 100 years has depended on the difficulty of production and distribution of music recordings, and the willingness of the artists to go on tour. Needless to say, the record companies raked in the lion's share of the proceeds, leaving the recording, performing musician mostly broke. A few people became super stars, which a few generations of suckers for the record labels to exploit, preying on their hopes of becoming famous and rich. Few people became famous; even less became rich. And those that did become rich made their money from performing; record sales, not so much.

Now we have come full circle: music recording and distribution has become so cheap, you don't have that revenue stream available anymore. Musicians who do make a living as musicians will do so by going around performing, just as they did before the 20th century. And the idea that musicians were actually able to make a decent living as recording artists during the 20th century is really a myth -- successful musicians, even those who sold lots of albums, made their money from touring. The record companies took most of the profits from record sales. Sure there were a number of popular musicians, but there were many more who never made any money off of it.

Most people with a Masters of Fine Arts who actually still paint ( and I know a few of them ) have a day job. A few of them are lucky enough to teach college kids to paint. The rest sell weed and/or are starving.

So, being a full time artist is a pipe dream for many people. It many sound like a downer, but I look at it the other way -- for human history, art has always been a folk expression. People got together in the village after they were done in the fields and danced and sang. Simple as that. Your brother will have a hard time making a living solely as an artist, but he can get a 9-to-5 and perform at some bars a few nights a week, release an album every few years, and have a damn lot of fun doing it, all without starving ;)

Re:Confessions of a convert

[akpoff]

Buy tickets to their concerts; buy CDs directly from the band or their website; buy other band crap like t-shirts, mugs, stickers; if they put their music online in places like magnatune or cdbaby buy it there; use their online tip jar if they have one; if they're "nobodies" bring pizza to their jam sessions.

There are plenty of ways. We just need to use them.

Re:Confessions of a convert

[Card Zero]

It many sound like a downer, but I look at it the other way -- for human history, art has always been a folk expression. People got together in the village after they were done in the fields and danced and sang. Simple as that. One very important aspect of the Renaissance was the very successful PR campaign (spearheaded by artists like Leonardo da Vinci and Albrecht Durer) to increase the status and pay of the artist. They had been seen throughout the Middle Ages as humble craftstmen, on the same social and economic level as carpenters and others who worked with their hands. It was largely due to the efforts of these artists to gain status that the idea that art was necessarily an intellectual and creative pursuit came into being. Artists began to be accorded the same status as learned people, even aristocracy or nobility. There's evidence of this happening in the Classical period as well.

Of course, today we have the aforementioned stereotype of the Starving Artist, evidence that the status of the artist is much lower than it was in the Renaissance, and probably lower than it was in the Middle Ages as well. But it wasn't always this way.

Interestingly enough, the sunset of the High Renaissance also saw the birth of the first copyright laws...suppose there's some sort of correlation?

Bizarre? No. Logical

[Opportunist]

It fits in many more cases. It fits in every case where some monopolist or a company that has some sort of a more or less monopoly position for some reason (because of patents or because there's only so many provider of a certain good or service) wants to continue milking his customers, knowing well that there are better and (for the customer) more favorable products available and most of the time even within his reach, but the outdated product or business model means more money for him.

And I think that was one of the longest and most incomprehensible sentences I ever wrote.

Re:Bizarre? No. Logical

[ascendant]

>And I think that was one of the longest and most incomprehensible sentences I ever wrote.

That tends to happen when you talk about stuff relating to the legal system.

Re:Bizarre? No. Logical

[dfiguero]

...or because there's only so many provider of a certain good or service)... Not trying to be a troll, just wanted to let you know that, since you mentioned monopoly, this particular concept is called an oligopoly.

re: music industry vs. self storage

[djdavetrouble]

damn them both, the profiteers! I spend thousands of dollars on vinyl records each year, and have been forced to house the better part of my collection (about 100 crates last time I moved them)
in a self storage unit (small manhattan apartment). I think they are actually in cahoots !!!!

To quote "WarGames"...

[Stormwatch]

Falken: I never could get Joshua to learn the most important lesson.
Lightman: What's that?
Falken: Futility. That there's a time when you should just give up.

Re:Boilerplate legal documents?

[linuxguy1454]

Not shocking. More like they're steamed by this ruling!

Don't get too enthusiastic

[Todd Knarr]

I wouldn't get too enthusiastic about this being a way out from under these lawsuits. It's a good win, but it's on very technical grounds and easy for the RIAA to deal with if they have even a shred of a tenuous case.

It's mainly about the technical requirements for a filing. Let's take the hypothetical case of me suing you for having stolen a car from my car lot. All I state in my complaint is that on information and belief I think you stole a car from me, and I attach a long list of cars (make, model, VIN, plate number, etc.). The problems with this complaint at this level are:

• I haven't specified a crime. I've made an accusation, but where in there do I say what car was stolen, when it was stolen or where it was stolen from? Essentially the complaint can't say "You stole a car." but has to say "You stole this car.". And what's that list? I never say in the complaint whether it's a list of cars I allege you stole, a list of all the cars I have of which the one you stole is one. It could even be a list of all the cars left on my lot after the theft. Without some mention of what the list is, it's meaningless.
• Even assuming the above is corrected, there are no facts alleged connecting you to the incident. The bar here is low. I don't have to offer enough to prove my case. I don't have to offer anything credible enough to survive even a cursory response from you. But I have to offer some speck of evidence that, if believed completely and not responded to at all by you, could possibly be grounds for finding in my favor.

That's basically what the judge found here: the RIAA had failed on those two points. The bad news is that it's fairly easy for the RIAA to fix this. Name a song, name a file on the list that contained it, and allege that you were offering it for download to them and the first part's dealt with. As for the second, alleging the files were offered by a particular IP address along with a statement by the ISP that that IP address was assigned to a particular person's account at the time in question suffices. There's lots of technical problems with it, but it meets the minimal bar involved. The good news is that even those minor fixes give the defendant more places to attack the RIAA's complaint. For instance, if they allege a particular file contains some specific song, the defendant can respond by asserting that that file contains something that'd justify it's name but isn't the song in question.

I suspect the RIAA got tripped up here because they never intended these cases to go to court. The filings were supposed to be merely clubs to wave at people to get them to settle, they were never supposed to actually be looked at as real lawsuits. We're going to see a lot of these for a while, but we're going to see a second round from the RIAA with these sorts of obvious errors fixed as they react to people actually fighting back. I'm not a lawyer, but I think one piece of advice is warranted: don't pick questionable defendants to fight this second wave. Pick ones that really are clean and can prove it and fight the RIAA on those. It's much easier to win judges over when you can present solid evidence in your favor, and much easier to fight the questionable defendants when you've got previous clean wins to cite.

Re:Don't get too enthusiastic

[NewYorkCountryLawyer]

I wouldn't get too enthusiastic about this being a way out from under these lawsuits. It's a good win, but it's on very technical grounds and easy for the RIAA to deal with if they have even a shred of a tenuous case. With all due respect, Todd, on this one you are dead wrong. The reason the RIAA hasn't drafted better pleadings isn't because their lawyers don't have enough competence to draft a pleading.... it's because they don't have any evidence that the defendant infringed their copyrights . This case goes to the very core of what is wrong with the RIAA's whole campaign. And this decision may well be the beginning of the end.

Re:Don't get too enthusiastic

[NewYorkCountryLawyer]

Perhaps you can explain why they aren't using (and I hear dropping) the "made available" argument. I have a selfish interest as the Canada's Parliament keeps suggesting they will pass legislation implementing the "make available" sections of WIPO. BTW, really, thank you for these articles and posts. I always read NewYorkCountrylawyer posts/articles first! You're good.

I guess you read Canada's own p2pnet.net by Jon Newton.

Actually, I can only speculate what is going on in RIAA-land.

All I know is that, in the wake of the Interscope v. Rodriguez decision, which forced them to come up with an amended complaint, they filed an amended complaint which totally omitted the "making available" theory.

I'll be doing a post on the possible implications of this, but as to their reason, my guess is they did it because

1. they know that it's an invalid argument, having no basis in the statute, in caselaw, or in legal scholarship, and

2. the Bell Atlantic v. Twombly decision gives them a way to back down gracefully.

ha

[nomadic]

However, other than the bare conclusory statement that on "information and belief" Defendant has downloaded, distributed and/or made available for distribution to the public copyrighted works

Speaking as a lawyer who has used that term in complaints: anytime you see the words "upon information and belief", that means "ummm...theoretically this might have maybe could have happened".

No default judgment, but probably not over

[The Empiricist]

For only a couple of dollars, it is possible to review the current case information using the PACER electronic file access system. Interscope Record, et al., filed an amended complaint on August 23, 2007. The amended complaint goes beyond stating that the plaintiffs were "informed and believe that the Defendant" pirated their works:

12. Users of P2P networks who distribute files over a network can be identified by using Internet Protocol ("IP") addresses because the unique IP address of the computer offering the files for distribution can be captured by another user during a search or a file transfer. Users of P2P networks can be identified by their IP addresses because each computer or network device (such as a router) that connects to a P2P network must have a unique IP address within the Internet to deliver files from one computer or network device to another. Two computers cannot effectively function if they are connected to the Internet with the same IP address at the same time.

13. Plaintiffs identified an individual using LimeWire on the P2P network Gnutella at IP address 68.105.100.130 on October 2, 2005 at 05:21:57 distributing 330 audio files over the Internet. The Defendant was identified as the individual responsible for that IP address at that date and time. Exhibit A identifies the date and time of capture and a list of Copyrighted Recordings that Defendant has, without the permission or consent of Plaintiffs, downloaded and/or distributed to the public.

The plaintiffs had to serve the the defendant again (by mail), but was otherwise not inconvenienced in this suit. Denying a motion to enter default judgment is not the same as dismissing the case altogether. The order even said that the plaintiffs were granted leave to amend the complaint.

The Recording Industry vs The People blog makes too big a deal about the RIAA not disclosing the Interscope order in another case. This was a trial-level order. It doesn't create an interpretation of law that is binding on any other court (if even itself). Law briefs are already long enough without having to cite thousands (if not millions) of trial-level non-binding orders and decisions that show that other trial-judges might decide against the argument.

Eivind reminded me of my manners!

[rts008]

BTW, Thanks for not only the work you do in this field (as Eivind said), but also a hearty thanks for you spending time on /. giving us your professional insight. It does make a difference to those of us that actually pay attention to this crap. (not to dis you, but this whole MPAA/RIAA extravaganza is crap a lot of the time-but not all)

Having worked in NYC, and having friends in Watertown, NY, I would not insult you inadvertently by abbreviating your UID as NYCLawyer!...instead I will use NY Country Lawyer if I feel the need to abbreviate.

Lawyers have a bad rep on /. , but you are (at least to me) the exception to the /. rule, and a credit to your profession.

I've kept track of your posts over the past several years here, and feel good about the fact that you are on *our* side.

Who sells CD/DVD copiers? HP, Dell, etc.

[Shirotae]

If the $40 billion per year figure is right then it is smaller than Dell's annual revenue and less than half HP's. Of course, selling high performance CD and DVD copying equipment is only a part of their business but you will find it hard to get a consumer PC that does not include at least the hardware you need for the unauthorised copying that ??AA like to call piracy. Looking up the financials, it looks as if the consumer PC hardware business for just those two is over $10 billion per year and there are quite a few other companies out there too. I don't have time to look up the size of the blank media business - what the ??AA probably think of as "piracy supplies" - but given the shelves full of the things I see in my local supermarket, I suspect we have a respectable sized business there too.

I suspect that if someone does the real numbers the economic argument will not be so favourable to ??AA.

Crystal clear

[Stanislav_J]

This situation, more than any so far, blatantly exposes the true motives of the RIAA. They never intended for any of these cases to actually go to trial. The whole effort is a shakedown, a scare tactic to quickly extort some cash through intimidation and fear and hopefully provide a deterrent to others not to infringe. If they wanted to, they could build more solid cases with more convincing evidence, but that would take far more time, effort, and expense than they are willing to put into it. Believe it or not, their legal eagles are probably involved in far weightier and more important matters than suing a handful of file sharers. To build a case that will hold up in court for each and every one of these people would be extremely cost-ineffective.

To me, this is very much like credit card companies or other creditors who threaten to sue for collection of very small debts. They don't want to actually go to court to get that couple of thousand bucks you owe -- they know that the expenses of doing so would far outweigh the debt. (And getting a judgement is one thing -- actually collecting the money is another.) They merely hope that having a deputy show up at your front door with some scary looking legal papers in hand will be intimidating enough to motivate you to somehow scrape up some dough to settle the case.

Re:Self-damning?

[NewYorkCountryLawyer]

Here the judge was unable to find that the plaintiff had anything meriting any kind of hearing or trial. (Which probably gives the defendant good standing to file a counter suit, if they have not already done so.) This was a default judgment case.

Ms. Rodriguez probably doesn't even know she's been sued.