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.

Comments

Queue RIAA press release...

[Anonymous Coward]

about the unfairness of the article in three, two...

All that needs to be said

[Anonymous Coward]

You are a hero.

Re:All that needs to be said

[Maximalist]

Well, everybody has to make money. As a lawyer who has had a couple of RIAA cases referred my way, I can honestly say that there is no upside at all to taking the cases and doing any fighting in court. The costs of doing discovery and filing responses in the court will add up quickly enough that the defendants better option is just to pay the settlement and be done with it.

Even if there was a chance that the defendant would prevail, they'd be in a deeper hole than if they settled. And the RIAA has demonstrated that they'll fight an award of attorney's fees for a defendant, making any eventual payout years down the pike.

If I didn't have student loans that needed regular payments, and the ordinary costs of living, taking on one of these cases and fighting tooth and nail seems like a worthwhile thing to do. But I can't afford to do it.

We should be glad that NYCL is fighting this fight, and God bless whoever is paying him (or if he's been successful enough in his practice up to this point to be bankrolling it himself.)

Re:All that needs to be said

[TapeCutter]

"Let us not be too quick to deify him."

Quick? NYCL has been posting on this stuff for years and is by far the most informative voice on slashdot for this type of thing - I can only assume you are a new AC around here.

It appears that he's getting paid for it.

Define "it". Also regardless of wether he is paid for "it", he has done far more than just sit on slashdot and bitch about the MAFIAA like the rest of us do.

Thank you for your efforts.

[jx100]

They are greatly appreciated.

Re:Thank you for your efforts.

[Anonymous Coward]

I'll second that! I'll never need this info personally...

Don't be so confident about that, since many of the people being sued are no more guilty than you.

Re:Thank you for your efforts.

[im_thatoneguy]

I would say the larger the settlement the less deterent it is.

If I were charged $50 per time getting caught I would probably be petrified. If I were charged $10,000,000,000 per time I would just view it like dieing "hopefully it won't happen but if it does it's pretty much over."

The lower the fine the more likely they are to be able to pass sweeping legislation which makes it easier to charge people. If downloading were like parking tickets and as easily enforceable then I think you see a much larger drop in piracy than threatening to sue millions of dollars.

It's like "disaster syndrome" your brain can't quantify the damages so it just gives up and ignores it all together. My brain can perfectly understand $50 and its effect on my wallet.

Re:Thank you for your efforts.

[Danse]

Never want to see RIAA again? Then don't steal the dream - don't steal the music. Buy your "tunes" at a reputable record store instead of just stealing them off the Internet.

The RIAA and other entertainment lobbyists have been stealing from the public on a massive scale for decades. Beyond the repeated price-fixing convictions (which they never seem to get punished for), they've been taking works that should have become public domain and extending the duration of their monopoly rights over them, even retroactively so that the public never gets any return on the copyright bargain in their lifetime. You could wrap all those industry execs in bacon and drag them through an alligator moat and nobody would shed a tear.

Re:Thank you for your efforts.

[Opportunist]

No more? They're less guilty. He at least has a computer, he could at least somehow do it.

Re:Thank you for your efforts.

[NormalVisual]

they've been taking works that should have become public domain and extending the duration of their monopoly rights over them

And unlike the folks that claim that copyright infringment = theft, this *really is* theft (i.e., something taken from people that they are unable to use as a result) on a massive scale.

Wow

[Sparr0]

Awesome read. I wish this was required material for any judge presiding over the cases in question. I also wish for a pony.

Real question

[geekoid]

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.

Re:Real question

[jeiler]

Is downloading infringement? or is it distribution?

OK, I am not Ray, and I am not a lawyer. Make of this what you will. All of the following applies to US law.

Distributing other people's copyrighted files may violate 17 USC 106(3). Downloading other people's copyrighted files may be considered "reproducing" said file, which may violate 17 USC 106(1).

The big problem is these laws were written before p2p sharing existed, so we don't really know for certain how the law applies to these issues. The RIAA (and other groups such as the MPAA) is arguing that 17 USC 106 be applied very broadly, so as to definitely condemn downloading and uploading files. Ray, the EFF, and other organizations are arguing (among other things) that 17 USC 106 does not apply as RIAA thinks it should.

Well done

[BlueParrot]

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.

Re:Well done

[NewYorkCountryLawyer]

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.

Yes it's pretty astonishing the lengths to which they will go to make sure the defendant doesn't have a fair shake in court.

Re:Well done

[mrchaotica]

Yeah, it's called "being a good attorney".

No, it's really fucking not! Attorneys are also "officers of the court," and have the responsibility and obligation to uphold proper court procedure. The RIAA's lawyers are absolutely failing in their duty to the court, and should be sanctioned for it!

Re:Damn it!

[RobBebop]

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.

I'll probably get modded down as "redundant"

[beadfulthings]

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.

Re:Question for NYCL...

[NewYorkCountryLawyer]

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?

Re:Wonderful article

[NewYorkCountryLawyer]

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.

Did we hold a shotgun to EMI?

[Anonymous Coward]

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.