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U.of Oregon Says No to RIAA
NewYorkCountryLawyer writes "The University of Oregon has filed a motion to quash the RIAA's subpoena for information on student identities in what is believed to be the first such motion made by a university with support from the state Attorney General. The motion (pdf) explains that it is impossible to identify the alleged infringers from the information the RIAA has presented: 'Five of the seventeen John Does accessed the content in question from double occupancy dorm rooms at the University. With regard to these Does, the University is able to identify only the room where the content was accessed and whether or not the computer used was a Macintosh or a PC ... The University cannot determine whether the content in question accessed by one occupant as opposed to another, or whether it was accessed instead by a visitor.' The AG's motion further argues (pdf) that "Plaintiffs' subpoena is unduly burdensome and overbroad. It seeks information that the University does not readily possess. In order to attempt to comply with the subpoena, the University would be forced to undertake an investigation to create discovery for Plaintiffs — an obligation not imposed by Rule 45. As the University is unable to identify the alleged infringers with any accuracy, it cannot comply with its federal obligation to notify students potentially affected by the subpoena. One commentator has likened the AG's argument to saying, in effect, that the RIAA's evidence is 'rubbish'."
Woosh.
1. You can't "wait them out" if you're the one that's being sued (or, as in this case, the university that's being put in a position in which it's being forced to violate the law)
2. If you think this motion doesn't have enormous impact, you're wrong.
3. The Capitol v. Thomas case is far from over.
Ray Beckerman +5 Insightful
I think the issue all along has been that IP addresses are not persons. Yes, you can argue that the address has a responsible person behind it, and perhaps that's all the law cares about. But the RIAA needs to prove the infringing party is the same one who owns the IP address- not trivial. They are asking the ISP or University to decide who that is. All it takes is an uneducated person with an unsecured WAP and a savvy and unscrupulous wardriver and suddenly the ignorant have become copyright infringers. Leave your dorm room open and unattended or be unlucky enough to share an address with a dishonest roommate who points the finger at you could be enough to cause heaps of trouble.
Have you ever noticed that anybody driving slower than you is an idiot, and anyone going faster than you is a maniac?
Ray Beckerman +5 Insightful
but i would assert that sea changes in business and culture can render your entire legal argument moot
for example, in a world where no artist signs with any music label, because they can get more money putting their own shingle on the internet, then the rights of labels that don't exist economically anymore don't have any meaning
it will take time to arrive at this new world, so perhaps we have to wait a lot longer than i might wish
to put it another way: there is a great legal framework in place concerning the rights of player piano music roll manufacturers
but in world where there are no player pianos, except in museums, then what does that legal framework mean?
likewise, i am not going to counter your legal arguments, your legal arguments are 100% correct
but i am going to say that over time, the entire legal realm the arguments you are making exist in will become defunct
it will take awhile, but you have an entire generation of young people who know what i am talking about. when such children are in their 40s and 50s, and are running whatever dried up remains of bertelsmann, coumbia records, etc. still exists, then what will any of this sound and fury really mean anymore?
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
No, nowhere near the beginning. The RIAA labels' suicide started years ago and is still ongoing. Now, if you're scratching your heads and are wondering WTF I mean by "suicide", the established industry is dying from its own actions.
The year the old "pirate" Napster was being sued, CD sales (IIRC) were at their peak and have been dwindling since. The RIAA boycott (that you have never even once heard about in the mainstream media - hmmm....) must have had some slight effect on the industry.
Their first mistake was to think CD burning technology wouldn't, like all computer technology before it, be affordable for the serfs.
Their second mistake was to try to kill their competetion, the indies, by killing P2P.
Their third mistake was seeing MP3s as "product" rather than "advertising". They have always been known as "record companies", and they sold records. Now they're trying to sell music, and music is a non-tangible item. Note that the indies actually do this, giving away MP3s and selling CDs at their shows.
There were other mistakes - overpricing their wares (an indie CD is usually $5-$10), only having one good song on the CD (my generatiuon was damned lucky, have you ever heard a Led Zepplin song that sucked? There aren't any!), suing their paying customers (DUH!!!!!!) etc.
All their woes are self-inflicted. Now by "suicide" I'm assuming that you'll agree that if a mosquito lands on your foot and you try to kill the mosquito by firing five shots from a sixteen guage shotgun at it and you bleed to death, it's suicide.
-mcgrew
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
RICO is so often brought up in these discussions that I finally went looking to see what it would take to get a RICO indictment and eventual conviction. I'm not so sure that it applies.
Note: I got my RICO information from Wikipedia, so take it for what it's worth.
First off, RICO requires that the individual or groups commit two of 35 different crimes. Extortion is in the list, but not many of the other crimes could apply to the RIAA no matter how far we stretch them. I think even extortion is a bit of a stretch. The ones that are even worth considering are:
I think we can ignore things like murder-for-hire, slavery, etc.
There's a fine line between extortion and blackmail. In both cases, there's a threat for gain. "Pay up or else!" In extortion, the threat is generally something illegal; for blackmail, the threat is normally something that would be legal, if it weren't being done as part of the threat for gain. Certainly, the RIAA is well within the bounds of legal behavior to bring lawsuits, and the courts are very reluctant to limit access to the courts under any circumstances.
To show extortion, one would need to demonstrate that bringing the suits is, itself, improper. That's not impossible, particularly if we can prove that the RIAA threatened litigation that it knew it couldn't win, but there are other rules for dealing with threats of frivolous lawsuits. My knowledge of that end of the law is pretty shaky — does anybody know what those rules are? Does anyone know if one can use them to demonstrate that the legal threat was, in fact, extortion?
For blackmail, one merely needs to demonstrate that the threat was used for gain. Unfortunately, once again, the courts like to encourage parties to settle. Settlement negotiations are almost impossible to characterize as blackmail.
RICO was written with obstruction of justice in mind. The idea was that organized crime would threaten witnesses, suborn testimony, etc. Some of the things that I've heard in a few RIAA cases do push this line, but I don't think they cross it. There's a big difference between trying to subpoena a minor and depose her outside the presence of her guardian, versus saying "If you testify, I'll kill your pets, your kids, and your grandparents, in alphabetical order."
Fraud only seems to apply if the letters they send out contain fraudulent offers. I'm not sure how this could apply, but it's worth examination.
Racketeering refers to a completely illegal business model - e.g., a "Protection Racket," where you pay for "insurance" against bad things happening to your business — where the bad things are the insurer actively trashing your business. If extortion applies to a large proportion of lawsuits (enough to show a clear, deliberate pattern), then racketeering probably applies as well. However, I don't think extortion could be demonstrated.
Ultimately, much as I'd personally love to see RICO applied, I don't think it does. They key point is that the courts don't like to limit access to the courts, even by a chilling effect. Everybody has a right to their day in court. That, in turn, leads to the abuses we see where a big corporation can afford more and bigger lawyers than small mom-and-pop businesses, who settle cases that they could win because they'd lose more money in legal fees than the settlement.
What we need is a revamp of this part of the legal system. Frankly, I don't see how that can be done without free, government-appointed counsel in every case, which is even less workable than the current system.
--Somebody infect me with a