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ABA Judges Get an Earful About RIAA Litigations
NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article.
about the unfairness of the article in three, two...
You are a hero.
They are greatly appreciated.
Saw your pic. I thought you were younger!
I would believe the Justice department to be the most fair and the most willing to listen the arguments. I am not saying that the DoJ is a righteous and all-good entity, but rather the only system in our government that can do the most good is the Justice department and it is rather interesting to hear the numerous justices stand up for the rights guaranteed by our government. Even more amazing when you hear of the pandering done to the other 2 branches done by lobbying groups. Money talks and thank god the DoJ sometimes just doesn't listen.
A conclusion is the place where you got tired of thinking
That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments. Now my replies need to be thought out!
I mean, you look like one of us(except for the monkey suit).
The Kruger Dunning explains most post on
Awesome read. I wish this was required material for any judge presiding over the cases in question. I also wish for a pony.
The appropriate salutation is "a/s/l?"
I for one thank you
The Department of Justice (DOJ) is an executive branch department (Wikipedia Entry). The judicial system is made up of Judges at most levels, and justices are the supreme court level. To laymen, that distinction it one of terminology, not job (though they don't judge cases the same way a trial court does, and the terms have some meaning.
However, need to correct a very important typo...you have misspelled the www.groklaw.net web address (you have growklaw at least once in the paper).
The NSA: The only part of the US government that actually listens.
the judicial system is finally recognising that the MAFIIA is making a mockery of the courts, while there have been isolated incodents of common sense in the courtroom this is a big win because now multiple judges are sitting down to look at the issue. It took them long enough.
-- Sex is the antonym of pringles. Once you pop it's time to stop.
a lot of what it comes down to, is a lot of the judges are older people that don't know much about computers cept enough to use one for the basics then you get a so-called "expert" to use fancy terms and they judge don't have a clue what most it means and get slammed. Other part is most the defendant's can't afford to fight a multi-billion dollar company and get short shit end of the stick
--Validity of Plaintiffs' Copyright Infringement Claim--
"Without actual distribution copies . . . there is no violation distribution right."
--William F. Patry, Patry Copyright, 2007.25
I assume that MediaSentry has some sort of signed agreement or license that gives the copies that they make in the course of thier "investigations-ha-ha-ha" the status of "authorized duplications". Without such a license or assignment of duplication rights, MediaSentry would be guilty of infringement themselves, would they not?
If said licenses or assignments do in fact exist, why can the "evidence" of the download transaction (a copy being made) be termed an act of "Unauthorized Distribution" if the party actively making the copy is explicitly "authorized" to make said copies?
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
A torrent link to the pdf can be found here!
If I can not smoke in heaven, then I shall not go. -- Mark Twain
IANAL, so when I read the 15 common-sense suggestions a lot of them seemed to me to be things the Judge should be doing anyway (hence the common-sense part). It sounds like because the defendant isn't able to hire a fully-competant lawyer who would be able to request these things automatically, the judges are allowing the over-paid RIAA lawyers to subvert basic court procedure, at the cost of justice for the defendant. I assume that when Ray is defending someone against the RIAA, he is following his own suggestions.
This is the problem with the court systems in America. We use things like precident instead of common sense. Judges are too scared to make decisions that aren't supported by the actions of other judges (though someone had the balls to set the precident in the first place). Common lawyers are too inept or lack proper experience to understand the rights that their clients have as defendants in a civil suit (the old movie cliche of a worthless public defender comes to mind here).
I understand common-sense is something most people don't have anymore, but when my life or livelyhood is at stake, I would hope the person defending me has a little.
Eggs
Milk
Bread
Cat Litter
Soda
All I want to say is God Bless you, Ray Beckerman.. You are the lone voice crying in the wilderness against the RIAA/MPAA... May you continue fighting the good fight!!
THANK YOU, Edward Snowden!! Americans owe you a debt of gratitude (whether they know it or not..)
Definitely my favourite Slashdot user.
Such dedication to the greater good is like a rare gem. So rare, in fact, you start doubting it even exists anymore. For those of you who don't know, Ray Beckerman has been fighting the RIAA since a long time, and has been great at it!
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
By all means, RTFA, as the following will be put into absolutely needed context, but here are the suggestions themselves:
Suggestion 1. Be alert to misjoinder in "John Doe" cases.
If a court is presented with a "John Doe" case that joins more than one defendant, under well-settled principles the case should be dismissed as to all John Does except John Doe number one. Plaintiffs should be ordered to show cause why they should not be held in contempt of the November 17, 2004, order of the district court in Fonovisa v. Does and subject to Rule 11 sanctions. And because there will likely be no defendant's counsel present, the court should read the plaintiffs' response with a critical eye.
Suggestion 2. Require in personam jurisdiction and venue.
If a court is presented with a John Doe case that fails to set forth detailed factual allegations of the basis for venue and for in personam jurisdiction in that district, the action should be dismissed.
Suggestion 3. No ex parte motion practice.
Nothing should be granted ex parte unless it involves an order providing for meaningful notice of the motion for discovery to be afforded to the John Doe and to the ISP. The order should state that the ISP is to be provided with a full set of papers for transmission to the John Doe, and should provide ample time from the Doe's receipt of such papers, consistent with the court's usual practices for motions on notice, to respond. These should include everything a defendant is normally entitled to receive under the court's usual rules and practices, including the summons and complaint, all of the motion papers, and the court rules, notices, and other materials supplied to defendants.
Suggestion 4. Make explicit the legal authority upon which discovery
applications are permitted or rejected.
Justice will be well served if a court is able to take the time to scrutinize the statutory basis invoked for each discovery application, cite the authority supporting its rulings, and deny discovery applications on their merits if they are not warranted by existing statutes or case law.
Suggestion 5. Scrutinize John Doe pleadings and evidence without being intimidated by technology jargon.
The complaint, of course, affords the opportunity to ensure that plaintiffs have validly pleaded a copyright infringement claim and that the evidence is admissible and covers all elements of the claim. It is easy to be overwhelmed by impressive-sounding technical and pseudo-technical jargon. Allow me to observe that if the court and the court's law clerks and law secretaries (many of whom are "digital natives") do not understand the case, that may be a sign that the plaintiff has none.
Suggestion 6. Carefully evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Careful evaluation of a complaint's sufficiency on a motion to dismiss may ultimately spare defendants significant and unwarranted hardship. A court, therefore, should stay all discovery while the motion is pending, and, if it denies the motion, certify the order denying the dismissal motion for an interlocutory appeal.
Suggestion 7. No routine consolidation or "related case" treatment.
A court need only follow traditional principles for consolidation and "related case" treatment. There is no need to create a special exception for these plaintiffs. Where the defendants are unrelated to each other, their cases are unrelated to each other and should be treated as such.
Suggestion 8. Keep discovery short and sweet.
If, and only if, the plaintiffs can muster an evidentiary showing that their case has merit and that the defendant committed copyright infringement, then the court may allow (1) a deposition of the plaintiffs; (2) a deposition of the defendant; and (3) an examination of the hard drive by a mutually agreeable independent neutral forensics expert whose fees will be advanced by the plaintiffs and will be treated as a taxable disbursement to ab
I have read the copyright law, but since I am not a trained lawyer I am confused on one part.
Is downloading infringement? or is it distribution?
Distribution makes sense to me, downloading(receiving) doesn't.
Am I to be liable if it turns out the book I bought from a bookstore is actually a copy of something some else wrote?
Where doesn't it say downloading is infringement?
AFAIK, All the cases had people whose software was downloading also had 'sharing' turned on.
The Kruger Dunning explains most post on
I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say...
Oh, and well done Ray, I will be saving this article as an example of why we need due process.
Funny, I didn't realize the ABA utilized slashcode.
Any sufficiently simple magic can be passed off as mere advanced technology.
But I'll post this anyway. Your efforts are sincerely appreciated by many of us. I've read the article, and I hope that judges who read it will take a serious look.
I am currently actively involved in supporting a blogger in the UK whose right to free speech was recently threatened. I would not have had the interest or courage to become involved in this effort if I had not been exposed to the RIAA issue on Slashdot. Though the two types of cases differ greatly, the underlying message is the same: Individual freedoms must not be tampered with or trampled. You have expressed that basic truth very eloquently, and I hope you will continue to do so for a very long time.
"Here's what's happening. You're starting to drive like your Dad..." - Red Green
Funny, I didn't realize the ABA utilized slashcode.
I guess you didn't read my Slashdot interview and the comments which followed it, where I said quite clearly:
Thank you all for the interview, and for the rough and tumble comment period which followed it. I really enjoyed it. It was incredible fun. I've even learned an important new legal research method in the process. A lawyer can't just read a bunch of cases and statutes to know what the law is. He also needs to come to Slashdot, because if somebody here says something's the law, and it gets moderated to +5, then it's the law. Maybe lawyers don't know it, and Congress doesn't know it, and the judges don't know it, but sooner or later, I'm sure they'll come around.
The legal profession is just starting to catch up to Slashdot, but we'll come around.
Ray Beckerman +5 Insightful
It has become a geek meme. Can also be used as a pickup line, as in "Hey, babe, anyone ever tell you you're +5 beautiful?" Followed shortly by, "Hey, sweet stuff, I see you've barfed in your drink. Can I buy you another?"
Loose lips lose spit.
>He also needs to come to Slashdot, because if somebody here says something's the law, and it gets moderated to +5, then it's the law. Maybe lawyers don't know it, and Congress doesn't know it, and the judges don't know it, but sooner or later, I'm sure they'll come around.
It's not ManLaw; it's NerdLaw.
Some mornings it's hardly worth chewing through the restraints to get out of bed.
FTA: Only a single case in four years, Capitol v. Thomas,11 has ever gone to trial, and that one only because the judge denied the defendant's attorney's motion for leave to withdraw.
The possible reasons behind this interest me:
It seems that only the most unconscionable, reckless, and irresponsible corporate officers would authorize settling a debt for pennies on the dollar, yet this is exactly what the likes of Vivendi, Sony, etc... propose with their settlement offers. For this to be a legitimate debt, the CEOs of said corporations are breaching their fiduciary responsibility to their shareholders.
I'm wondering if I could buy stock in Sony and sue the CEO for devaluing the company's assets. After all, if downloading really does cost several hundred thousand dollars per infringer, why are they settling for a few thousand?
I'm waiting for them to get sued under RICO.
The society for a thought-free internet welcomes you.
Here we go again!
Seems to me that the RIAA's quote in the appendix is quite interesitng:
when you fish with a net, you're gonna catch a few dolphins
Especially since you can see from the list of people they sued, that they have only sued dolphins(casual defenseless infringers), and not a single barracuda(large scale industrial pirates)...
Formal, nonetheless engaging. The article did have a few "think of the poor" phrases that seemed a little obtuse (in comparison to the rest of the article, which was impeccable), as justice meted for violation of copyright laws should be, ideally, blind -- listening to what's right vs. wrong instead of who is right vs. wrong. Imagining the worst, it seems it could be confused from the original intent of the article: allowing defendants to competently defend themselves.
The article does raise a question for me, however, as a standard person that could get caught up in something like this. If I were to get a judge who turns a blind eye to these seemingly common sense parts of a due process, would there be anything I could do to demand that I be given the rights to a fair trial, or would such demands be seen as contempt of court? I'm assuming it'd be poor sport to tell the judge that he's not doing his job, and even if granted a retrial, wouldn't win me many points with his replacement.
tl;dr: what's the best way a man can proceed if he doesn't get a fair first trial?
I am the richest astronaut ever to win the superbowl.
Well, more knowledgeable, anyway. A few months ago you said that you didn't know what "snarky" meant. Now you understand and even use it!
Knowledge is the small part of ignorance that we arrange and classify. (Ambrose Bierce)
A very thorough yet accessible article. Very well done- a wonderful job of putting together a complex set of factual and legal issues.
Do you suppose someone at the RIAA will read and (in any way) react to this?
For a lawyer, Ray, you're a pretty funny guy.
Brilliant analysis, too. We can only hope that the members of the Judiciary of this country read your article and really understand it.
Sig this!
why so serious ?
Read radical news here
I'm Canadian but am impacted a lot by what goes on down there as certain parties luuuuv to peddle that sleeze Northward and beyond.
So allow me to throw some transnational thanks your way:) It greatly is appreciated.
why dont more of you, who can join him, join him and make things easier for each and every one of us ?
Read radical news here
is there any non senile person who can explain me why the hell parent is redundant ?
since when THANKING someone for deeds done for greater good became REDUNDANT ?
or, it might be a case of idiots with mod points. in that case, please, someone deal with it.
Read radical news here
My flagpole; you can run up it.
1) I, GeneralEmergency, am a complete idiot and am not worth responding to.
2) I, GeneralEmergency, am a genius.
3) NewYorkCountyLawyer is a very slow typist.
4) NewYorkCountyLawyer has court in the morning and it's beddie-bye time in New York.
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
Ray,
You rock! Great article!
I'm not worthy.
I'm not worthy.
Seriously, I sent the link to both my friends!
t.
"The ferrets, they're every where I tell you!"
Ladies and gentlemen, I have uncovered a plot! A fiendish plot that undermines the very foundations of Slashdot itself!
Notice how Ray Beckerman goes out and defends people against the RIAA, to win the hearts and minds of Slashdotters. Then he uses that goodwill to get stories published from the firehose, onto the front page. What happens next is the really fiendish bit: he posts a series of comments on the article, whereupon the moderators invariably mod them up to +5.
Can't you see what he's doing? It all fits: Ray Beckerman is a karma whore! This is a bigger conspiracy than twitter and his sock puppets!
How widely read is the ABA quarterly in the judging profession, and if it's not that high, how much would it cost to (and would it be worth doing to) send a dead-tree copy of the article to every judge in the country?
FGD 135
Bravo, sir, bravo!
I may be a wee bit out of your jurisdiction but I maintain the appeal to fairness and reason presented in your paper holds universal appeal.
(Shakes head, walks away whistling.)
*Yeah, deliberate troll, on the basis that you're allowed to insult your friends. Deal.
Do not mock my vision of impractical footwear
grabbing this opportunity to address the right ears with both hands.
A well-placed comma would have been useful here. Of course I mean he is grabbing the opportunity, not the ears, with both hands.
Mind you - that is a thought...
"Three eyes are better than one" -- Lieutenant Columbo
Ray, get a better picture of yourself, a seriously professional picture.
As much as I support copyright, and even though you've marked me as a "foe", I wanted to say, even if we don't see eye to eye, your heart is in the right place, and I hope you do really well.
Your foe, TVF.
You know, there is a difference between trolling and pointing out the flaws in your reasoning. Just saying.
The RIAA has sued and settled with innocent people. http://en.wikipedia.org/wiki/RIAA_efforts_against_file-sharing#Criticism The RIAA has been criticized in the media after they subpoenaed Gertrude Walton, an 83-year-old grandmother who had died in December of 2004.[94] Mrs. Walton stood accused of swapping rock, pop and rap songs. The RIAA in 2003 attempted to sue Sarah Seabury Ward, a 66 year-old sculptor residing in Boston, Massachusetts. They alleged that she shared more than 2,000 songs illegally. The RIAA dropped the suit when it was discovered that she was a computer novice. The case was dismissed, but without prejudice. In a Brooklyn case, Elektra v. Schwartz,[95] against RaeJ Schwartz, a Queens woman with Multiple Sclerosis, the RIAA's lawyers wrote to the Judge that they were in possession of a letter in which "...America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffsâ(TM) sound recordings were downloaded and distributed to the public without Plaintiffsâ(TM) consent.â After the defense received a copy of the letter, it turned out that the letter merely identified Ms. Schwartz as the owner of an internet access account, and said nothing at all about "downloading" or "distributing".[96] The RIAA has also been criticized for bringing lawsuits against children, such as 12 year old Brianna LaHara in 2003.[97] The RIAA also attempted to sue Candy Chan of Michigan, for the alleged actions of her daughter, 13 year old Brittany Chan. Under the threat of a possible defendant's motion for summary judgment and attorneys fees, the RIAA withdrew the case Priority Records v. Chan.[98][99] When the court ruled in favor of the mother, dismissing the case, the RIAA proceeded to sue her child. However, prosecuting a minor is more difficult; the Michigan federal court required the RIAA to make provision for a guardian ad litem to be appointed to protect the interests of the child, and required the RIAA to be responsible for paying the guardian ad litem. The RIAA failed to submit a workable proposal, and the Court dismissed the case. The RIAA recently sued the 16-year old son of Patti Santangelo[100] and as of this writing is attempting to force a 10 year old girl in Oregon to be deposed (she would have been 7 years old at the time of the alleged infringement)[101]. The RIAA has also filed a lawsuit against a woman who has never bought, turned on, or used a personal computer for using an "online distribution system" to obtain unlicensed music files.[103] This occurred again in the Walls case; "I don't understand this", said James Walls, "How can they sue us when we don't even have a computer?".[104] The RIAA filed a lawsuit against Larry Scantlebury, a man who had passed away. They offered the deceased man's family a period of sixty days to grieve the death before they began to depose members of Mr. Scantleburyâ(TM)s family for the suit against his estate.[105]
Thanks to eating disorders most chicks are reasonably good looking these days.
It took me a while to read through it all, and to follow a few links to refresh what I remembered of some of the references (and I did find one typo in your article: "These proposed measures wil [sic] advance..." in your conclusion).
I don't know how you managed to get the honor of presenting your views in this publication, but I'm glad you did and pleased that you appear to have taken a conservative stance in presenting your information, observations, and suggestions. There were only two if the fifteen that as a non-lawyer I found challenging to agree with wholly.
In any case, many thanks for your many efforts in this arena, and also thank you for trusting the technoid crowd here and especially at Groklaw to offer suggested answers to some of your technical questions.
Carry on! :o)
--Tomas
P.S. I'm not a potential RIAA target (at least from anything I'VE done...), so my thanks are based on principal.
I think that you're confused. Laws are often contradictory. This is why we have courts and judges and the legal system.
For example: the US legal system has, in general, defended free political anonymous speech as a legal right. Unfortunately, by borrowing techniques from steganography, it is possible to take any digital work under copyright and manually convert it to an instance of meaningful political speech (probably not a very insightful one, or elegant one).
This contradiction probably wouldn't phase the legal system at all. The court would probably just start to analyze whether the motivation for the speech was real political expression, or copyright infringement.
This lawyer is just trying to buy his way into heaven!
It won't work, Jesus himself signed a contract!
(Thanks, NYCL. It's great to see pockets of logic and thoughtfulness still exist in people. Good luck, and keep us all posted.)
No they don't. MediaSentry downloads from them.
There is a big difference, in that one party is passive and the other is active.
In this instance, MediaSentry is the active party, by virtue of having chosen to download a specific item from a specific other party, and then having initiated the transfer. The other party was passive in this.
The issue hinges on whether "making available" is illegal or not. The actual copying was performed by MediaSentry, and is completely legal since they are authorized by the RIAA to make such copies. No illegal copying has been performed (and hence there can be no claim for copyright infringement) since the copying party is authorized to do so.
The only issue at stake is the status of "making available". MediaSentry only makes authorized copies, so copyright infingement cannot occur.
...mmmmm, bacon.
Are those the ones that decided the 1974 Eurovision song contest?
German courts _have_ rejected subpoenas for the names and addresses of more than 10,000 IP addresses with the simple reasoning that the plaintiffs had no intention at all to file a criminal case. They basically told them to bugger off and if they want to find out the names they have to do that themselves and not use tax payers money to help in their civil litigation. (The record companies basically claimed that these 10,000 people had done something criminal, in which case the criminal justice system would have to go to work to help solving the crime. However, it was just too obvious that this was just a pretence to get the names and sue in civil court). The police is not supposed to find music downloaders when they could use their time to find thieves, murderers etc. ).
In a fair number of instances you mention it appears the reality is somewhat far removed from what the RIAA lawyers state, or it appears statements were made with the clear intention to mislead.
Isn't that a punishable offense? If not it should be IMHO - at a criminal level so that it cannot be insured against or subverted by some more creative lawyering. One must keep in mind that if a lawyer is prepared to step so far out of the expected modus operandi to make such statements, actual misdirection is not too much further from the accepted course of action.
It's up to the judges to safeguard the system. So far, that idea apparently hasn't worked too well..
Insert
Did anyone notice the disclaimer in the PDF's footer?
> This information or any portion thereof may not
> be copied or disseminated in any form or by any
> means or stored in an electronic database or
> retrieval system without the express written
> consent of the American Bar Association.
what the face of a hero looks like!
People aren't being sued for downloading, they're being sued for *uploading* (or "making available"). Isn't it interesting that nobody is suing downloaders? Which suggest the RIAA realizes this activity does not carry the same legal penalties (copyright infringement on $10 worth of music may be only $30 in fines) and/or may not be illegal.
In any event, you appear to be full of crap
May your ass what?
May your ass get jerked up around your adam's apple.
May your ass get hit by a truckload of assclowns.
May your ass get introduced to Big Bubba, the cellblock nympho.
May your ass find itself falling into an active volcano.
May your ass find itself attached to a hang glider in a tornado.
I can keep this up for hours, assclown AC.
Are we having fun yet?
Since when is downloading illegal? According to you, I should be a criminal for *gasp* DOWNLOADING the latest Kubuntu iso.
*Stupid Git*
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
Now that you've published this document, to what extent do you believe that it will be read and absorbed by the judiciary?
What is the liklihood of the judiciary taking notice of your publication rather than reading it one night before bed and waking up the next day as if it had never been written, as they approve their next misjoinder?
Given that it has been targetted at the judiciary and that attorneys aren't judges, is it reasonable to expect that your local attorney will be aware of this publication and thus able to use it as a source of references in defense?
Given the mounting criticism of the RIAA's tactics, especially with publications such as this by yourself, if one were to find themselves in court facing the RIAA after this publication, is it possible to ask for a mistrial or challenge the court's process/decision that has allowed the plantiff to get to where they have? (i.e. challenge the competency of the judge and the decision that was made landing you where you are.)
Finally, a comment - it appeared to end too quickly and there weren't too many typographical errors (I think only "wal" caught my attention.)
Great stuff!.
Did we hold a shotgun to EMI/Sony/... and steal their works?
Did we hold a shotgun to the artists and steal their efforts?
No. The artists and labels have decided of their own free will to work in a sphere that is overtaken by technology. Just like the flint-knappers and buggy whip manufacturers.
The owner made a copy ON THAT MACHINE. The ISP (under direction from *the downloader*) makes a copy temporarily on other machines until it gets to the downloaders' machine.
The DOWNLOADER made the distribution.
Which is why the RIAA assert that AllOfMP3 is illegal: because the distribution is done at the downloader end.
In Spain the General Attorney issued a 115 pages long letter (in spanish) in 2006 saying basically that although copyright violations are indeed illicit, the Judicial System (which is slow as hell and has many problems) has better things to do (like trying to solve its problems) than processing thousands of cases against individuals for such violations, becoming even slower. The letter told state prosecutors not to pursue these violations, thus living only the civil way for our MAFIAA
:P
But in practice, it also meant that no warrant is going to be issued for identifying any file-sharer (privacy righs > possible civil violation), thus making it impossible for our MAFIAA-like organization, called SGAE, to sue anyone.
Also note that in Spain is only illicit (not illegal) to share music and movies (software is another matter, as in Spain is ruled by different laws) UNLESS you seek profit. Of course next step for our MAFIAA was to try to prove than by downloading a film you're gaining profit cos you got the movie for free (thus saving money). But in what should be tagged as suddenoutbreakofcommonsense judges decided that "seeking profit" was to be applyed in its narrower definition, that is, selling pirated movies and records, and that individuals that downloaded a copy but did not sell it did not qualify as "seeking profit" under spanish legislation. This ruling has been upheld each time our MAFIAA has tried to appeal.
Of course they will probably make another French-like law here and screw us
the $150,000 is the figure. the reason for that figure is commercial piracy where the product has left the building, so there really is no way to find out how many were sold.
But the REASON is forgotten when it is to be applied by RIAA lawyers on individuals who aren't selling the copies.
In that case, they go STRICTLY by the black-and-white. As is the GP.
I? Who the fuck are you?
You must be new here.
Ray Beckerman +5 Insightful
As others have said, it doesn't matter how much you obfuscate the issue, making a copy of copyrighted materials without permission to do so is the problem.
There is a simple way to sidestep that issue though; but it probably requires at least a few more years' advance in technology. (Heck, maybe the current attempts by big ISPs to stamp out P2P is because big media has already seen this solution and wants to prevent it from happening.)
Imagine a P2P network where your client automatically deletes the chunks of data it sends to others. Although technically there's copying happening (into memory buffers, onto the network, etc.) but from a legal point of view, you're simply giving your data to someone else. Just like if you bought a CD, listened to it, then gave it to someone else, they listened to it, passed it on... nobody has made any copies, and it's (currently) perfectly legal. As it should be.
So you want to watch a movie. You set your P2P client to download it, and it grabs all the chunks of data that make up that movie in a particular encoding. You watch the movie, and then when you're done you tell the client you don't need it anymore. Someone else wants it, and they start downloading it from you. Each time their client successfully receives a chunk, your client deletes it from your system.
If you want to watch it again, you just download it again.
This would require one copy to exist for everyone that wanted to watch it at the same time (or everyone who wanted to hold onto a copy). It also leaves an obvious "black hole" problem, i.e. a client that downloads the data (removing a copy from the network) and then never returns it. So you'd need some kind of reputation system in place to ensure people are playing fair.
It seems almost doable, at a technical and a social level. The main problem is ensuring that clients actually remove their copy of each data block when they "give" it to another client.
With some refinement you could even watch the movie while it downloads, and chunks you've watched get sent on to someone else right away. That would be pretty cool. And movies are just an example of course; music would work even better as the small file sizes would make them quicker to transfer around.
In the unlikely event that big media wanted to support such a system, you could have an integrated store where after you've listened to something you can purchase a copy, which entitles you to keep the bits on your hard drive while also allowing your client to upload them to one other. Plus it'd provide fantastic statistics on consumer interest.
Have you ever heard someone say that they'll get out of jury duty by saying "the defendant must be guilty, the officer said he's guilty"?
Has anyone extended that to "it must be a lie or half truth, a lawyer said it?"
The views expressed here are meant to be humorous, not to incite riots.
If you want to incite a riot, work on an issue that has more widespread results, such as stopping the speculators from making a gallon of gas $4, or a government from trying their hardest to thwart alternate energy sources that would lessen our dependence on foreign fuel sources!
Somewhat OT, but one thing I've been wondering for awhile. Suppose the RIAA loses a number of cases, gets whacked around in court a fair bit for their dubious legal practices, and in the end clues in that they've alienated a hefty portion of their customer base. What happens next?
What kind of cases did you work before the RIAA shenanigans, and what would you see for the future? I don't see the RIAA finding a cure to their current case of cranial-rectal inversion anytime too soon, but should that ever happen what cases would you focus on in the future. IP? IT?
As you've become somewhat of a "crusader" here for the slashdot crowd, I'm sure many would be happy to see your name crop up in defending similar cases in the IT realm.
I'm with the parent on this. Why would the GP demonify somebody who's been doing such good work?
It appears that he's getting paid for it.
Well, no shit! Is there something wrong with getting paid? I suppose you work entirely gratis (and if so, you've likely either got a big existing stockpile of money or lean on the public dollar to get by)?
Guess what. I get paid for my job as a SysAdmin too. However, how I do my job is somewhat irrelevant of that fact. I can be one of the "helpful" type sysadmins, or I could be a BOFH-style class-A jerk.
NYCL gets to choose his cases. He could choose to support those like the RIAA, using dirty pressure tactics and dubious legal practices to further his career and likely make a lot of money doing so. Instead, he's chosen to support those that are being screwed by the RIAA and their lawyers.
he has done far more than just sit on slashdot and bitch about the MAFIAA like the rest of us do
And thus I ask the grandparent: what's your contribution?
I believe that this guide would probably be a good guide for a defending lawyer as well. If the RIAA's claim violated the above, try that as grounds to throw it out.
But in addition to that, one wishes there were similar guide for the defendants or their legal representatives (other than, of course, to get a legal representative)? I'm guessing both would share a lot of material, but a "how to fight an RIAA suite" guide would go well.
Heck, with all that's going on, I'm guessing that you could write a book/guide on this and make some decent money on the side.
One of the first times that a /. meme is Insightful and funny at the same time.
Interesting :)
Thank you a lot. Please, continue to give light to the world.
If that kind of informations could access the listening people every month over the mass media, there the people will know that the **AA are thug that use not full proof method to incriminate you.
Jourdespoir
By the way, the article was written largely in March of this year. In June I submitted a proposed epilogue mentioning a few bits of late breaking news on the 'equal access to justice' issue. The Judges' Journal didn't have room to add it in, but here it is.
Ray Beckerman +5 Insightful
A whitepaper defense to the RIAA litigation machine. Finally a lawyer/judge worthy of pulling from the bottom of the sea ;)
I am surprised the EFF is not doing this type of thing or even more. This is a good start. I feel we need to make a whole multitude of this type of information available and even make a kit available on the Internet for lawyers unfamiliar with this type of case law. Of course realizing it will also be used by the RIAA for it's closing arguements :)
Working together we can at least have a day in court instead of just shelling out thousands of dollars in the name of fear which is so anti-US.
I'd love to hear the full story behind the Capitol v. Thomas case mentioned in the article. As near as I can tell from the article, the defendant had an "involuntary lawyer" who tried his damndest to lose the case, and he still won.
A friend who wishes to remain anonymous has been kind enough to furnish me with an HTML version of the article, which is now available here
Ray Beckerman +5 Insightful
Quick, can someone grab the domain growklaw.net and make it redirect to groklaw.net? If some non-computer-savvy judge reads Beckerman's article and goes to www.growklaw.net, I don't want him/her to miss out on the trove of riches at groklaw.
404555974007725459910684486621289147856453481154 in hex is "You sank my Battleship?"
[GPG key in journal]
(nt)
why dont you drop him a line and offer it ? one man may not be able to keep track of zillions of people to drop a line to, but each one of those people can drop a line to that man.
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