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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.
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
Awesome read. I wish this was required material for any judge presiding over the cases in question. I also wish for a pony.
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
I started reading and then a question occurred to me. In the Napster days you found someone with a song and downloaded it. With a torrent, you are getting a chunk. I don't see the chunk as having any copyright since you need to assemble the file with the header to listen / view it. IANAL, To prosecute someone, wouldn't you have to prove that you got each chunk from the same computer / person? Just because someone is seeding a file doesn't mean that he is supplying all of the pieces to you to recreate / duplicate a copyrighted work. Without the whole file it's just a bunch of semi random bits.
It seems to me that a little defense could go a long way. To bad that defense will cost you your house. Oh yeah, it's the US (I'm in Canada). You guys are walking away from your homes anyway. Just give your keys to the RIAA and say thanks for the tunes and move to Canada.
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.
And a sense of humor, as well?
Ray - Not only do you do great things for "The People", but I believe your work is helping to fix the typical feeling of mistrust that most Americans have for lawyers.
I, for one, feel better knowing that not all lawyers are as portrayed in the movies.
And I am glad you can make jokes about yourself. I have long believed that this ability is one of the more noble qualities that a person can have... and somebody who can pull it off well is worthy of a great deal of respect.
Thank you.
Support the 30 Hour Work Week!!!
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
My understanding is that the RIAA downloads from their victims, then sues them for making those files available.
That's exactly right. Pretty pathetic, isn't it?
Ray Beckerman +5 Insightful
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)...
I couldn't fail to disagree more[0] :)
It's all very well us bitching about things on Slashdot, but people need to be out there making a difference (I'm just as guilty as anyone at being too lazy sometimes so I'm not on my high horse here).
In that vein it is great to see someone like NYCL - someone so obviously in tune with rational thought and even posting on Slashdot no less! - grabbing this opportunity to address the right ears with both hands.
I'm pessimistic to some extent too but nonetheless this gives us more hope than there would be otherwise.
[0] That is, I agree - for the benefit of any hard-of-thinking, shoot-from-the-hip modsters out there ;)
"Three eyes are better than one" -- Lieutenant Columbo
Isn't that like muggers suing their victims for having their money in the wrong currency?
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
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?
My guess is that they've been reading it, and preparing a public relations counterattack. It's not in their nature to learn something from it; they're not programmed to learn.
Ray Beckerman +5 Insightful
A statement like that in the NIV can give you rights in excess of fair use, but cannot ever curtail your fair use rights. Copyright law is what it is. A statement like that in a bible is probably intended as something of a "gift" to its users in the sense that part of the purpose of a bible is to quote/discuss in services/etc. No one needs to think twice about quoting it within that guideline. But, it doesn't necessarily mean that going outside those bounds is actually not permitted, that'd depend on the legal interpretation.
That said, I think the grandparent poster's idea, while it might work from a very letter-of-the-law standpoint, probably *shouldn't* work if you agree with the basic concept of copyright. At some point, someone creates something that causes a copy of the bits to be reassembled into a copy of the copyrighted work and someone initiates that process. There is a guilty party or parties in that process no matter how thinly you slice it -- either as direct infringement or conspiracy to do so.
That said, I don't necessarily think it *should* be illegal to do this. When it starts becoming necessary to go to enormous technical lengths to prevent people from doing things, I think that's a sign that perhaps it's not practical for it to be illegal in the first place...
Settling a debt for pennies on the dollar is only reckless, unconscionable, and irresponsible if the defendants have dollars. In most cases the RIAA is taking the defendants for basically everything they have and as such they are getting the most bang for their buck by settling for all of the defendants pennies. So, although I like the RICO idea I doubt the shareholder suit would fly.
It doesn't so much make a mockery out of the legal system but abuses it to browbeat its opponents.
The MAFIAA has a lot of money to back it. When someone with money wants to get you to submit, he uses the courts. For many rather simple reasons:
First, money. It takes a LOT of money to stand up in court against someone. Now, of course it costs both sides a lot of money, but as I said, they have more than you. Almost invariably so. And they choose their opponents carefully, I'm fairly sure they wouldn't go after, say, Donald Trump. Check their records and you'll see that you almost invariably have "regular Joes" on their target list. They don't even have to make remotely sure that they have a case at all. It's a FUD campaign, with the courts as the "muscle".
They drag you to court into an expensive battle. You have the choice now. Back down and pay their insane claims, whether you're guilty or not, or fight them and pay insane amounts of money for lawyers. Your choice, you're broke either way.
Oh, you mean suing them for expenses. Sure, you can. Unless of course they suddenly drop your case, leaving you empty handed, or drag the settlement of expenses for months and years. Tell me, how long do you think your creditors will want to wait? For the verdict that will come in a year or two? Anyone who thinks so doesn't deal with banks too often.
First they try to browbeat you into submission by using a lot of legal mumbo jumbo, a lot of bullying with exaggerated claims and a "moderate" settlement fee (this alone shows that they don't even consider their case good enough to win with a verdict, why should they be interested in a short trial? They have the time and money on THEIR side!), and should you fight it out, they wear you down by dragging it out like some well chewed gum, letting your bills pile up and simply and plainly trying to bleed you dry.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
Hmm... let's see the possible outcome...
1. Defendent knows he's guilty and settles -> RIAA wins
2. Defendent knows he can't afford to fight, no matter if he's guilty -> RIAA wins
3. Defendent knows he's innocent and decides to fight, RIAA drops case -> Defendent wins
In total, I think it's quite a good chance for the RIAA to win their case without ever going to court. I wonder why they don't just randomly pick people and sue ... nevermind.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
(Disclaimer: I'm not a lawyer; Mr. Beckerman is a fine lawyer with principles and courage.)
After reading the article, some observations about the content companies' counsel:
1. Misjoinder and other violations of procedure/precedent: Counsel has taken one cue too many from the Bush White House, and has decided to simply ignore anyone telling them to cease and desist from behaving badly. Contempt of court and other sanctions may apply, but due to the fast file-and-drop nature of the John Doe suits, they are rarely, if ever, exercised, reinforcing the end-run behavior of counsel and plaintiffs.
2. Counsel is consistent in its strategy of playing dirty, as evidenced by the aforementioned disregard of orders and procedures, filing in federal jurisdictions less "friendly" to the defendants, filing multiple times against the same defendant, using evidence that is at best disingenuous, stacking the deck in its favor in discovery, etc., etc.
3. Counsel bases ex parte discovery on two fallacious claims: that the evidence can only be brought forth in such a discovery, and that plaintiffs would suffer "irreparable harm" if ex parte discovery is denied. Counsel fails to both reasonably support either claim or show that this "irreparable harm" is in fact the inflated loss figures* concocted by the plaintiffs' marketing/finance/legal departments.
4. Counsel expunges its conscience and common sense, believing the plaintiffs' claims that there is no such thing as a legal download of copyrighted content, and that anyone even remotely implicated by its driftnet investigation should be pursued to the depths of poverty and hardship. Should they be brought before the bar association for misconduct, I believe they will invariably invoke the Nuremberg defense (if not the Chewbacca defense) for their zealous representation of their plaintiffs.
* They claim: 'Unauthorized' digital copy = lost sale = lost revenue. This is the basis for every ridiculous claim by the plaintiffs, e.g. "ripping a CD = unauthorized", because if you made a copy, it must be for some insidious purpose. IMO, Every MBA who insists that these are true does not deserve their degrees.
Here's hoping that enough district judges will gain enough wisdom to stop the MPAA from using these same tricks in its own litigation campaign.
"We are Microsoft. You shall be assimilated. Competition is futile."
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.
Personally I think Ray made a good case for this (see page 2 in particular). The judge's job, he argues, is to make sure that the trial is equitable. As he points out, there's an awful lot of ex parte stuff going on, and most times the defendant actually appears it's pro se or else the defendant's representation is only there because they have to be; given that, the only way to make sure that the trial is equitable is for the court to rest a finger lightly on the scales. I hope the article's intended readers find that half as persuasive as I do.
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
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?
IANAL, and nor am I a music executive, but I can think of an answer to that one easily enough.
Because otherwise they'll have to spend just as much on lawyers which they're unlikely to get back; even if awarded costs you can't get a man whose total assets amount to $100,000 to give you $200,000.
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.
I'm not a potential RIAA target (at least from anything I'VE done...),
That was also true for MOST of the people who HAVE been targeted.
Ray Beckerman +5 Insightful
I believe your work is helping to fix the typical feeling of mistrust that most Americans have for lawyers.
Actually, the one thing that fixes "the typical feeling of mistrust that most Americans have for lawyers" is needing one yourself. The lawyers that took care of my divorce and bankrupcy were intelligent, personable, dedicated, and well worth what I paid them.
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest