RIAA Claim of Stopping Suits "Months" Ago Is False

NewYorkCountryLawyer writes "According to a report on Wired.com, the RIAA spokesman claimed that the RIAA has not filed any new lawsuits 'for months,' and according to the Wall Street Journal report discussed here yesterday, the RIAA stopped filing mass lawsuits 'early this fall.' Knowing that the RIAA has a problem with telling the truth, I did a little investigating, and found out that the RIAA had, in fact, commenced a wave of lawsuits just last week. Why would anyone believe anything their spokesperson says? This is an organization that has a tendency to misspeak a lot, if you know what I mean, even when under oath." CNet has a copy of the RIAA's new form letter that it will ask ISPs to pass on to alleged copyright-infringing users. It says, in part, "This letter does not constitute a waiver of our members' rights to recover or claim relief for damages incurred by this illegal activity, nor does it waive the right to bring legal action against the user at issue for engaging in music theft."

Comments

Is this "takedown" even relevant to the ISP?

[Anonymous Coward]

Reminder: I am not a lawyer in the US. This is a discussion forum, not legal advice.

I question whether an ISP receiving this form letter would necessarily be compelled to act.

It is apparently a 17 USC ss. 512(c)(3) notification; however from a careful reading of the letter and from my own understanding, the relevant part of the DMCA to an ISP providing access to one of their residential users using a peer-to-peer service to host and/or transmit copyrighted music files without the relevant permission of the rights holder(s) would appear instead to be 17 USC ss. 512 (a):--

(a) Transitory Digital Network Communications. -- A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if--

1. the transmission of the material was initiated by or at the direction of a person other than the service provider;
2. the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
3. the service provider does not select the recipients of the material except as an automatic response to the request of another person;
4. no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
5. the material is transmitted through the system or network without modification of its content.

I note that subsection (a) does not contain any provision for "expeditiously disabling access" (i.e., takedowns), and would appear to intend to apply to internet routing in the normal form except where caching or content modification takes place (though ISPs do not have a so-called "common carrier" status, this is the relevant section that provides them with a disclaimer of liability for their downstream customers infringing copyright).

I would appreciate comments on the same. Nowhere in the form letter do I see the RIAA making a threat against the internet service provider, any form of subpoena or open request to identify the user in question, or retain any identifying records for later subpoena. I surmise that this might be because their counsel are aware of the contents of 17 USC ss. 512 (a) and do not wish to appear too hostile to the ISP, as, at least by my reading, the ISP could quite happily junk this, or pass on a friendly warning to the user in question that they've been flagged, and take no further action on the matter.

I would further surmise that they are insinuating that should the ISPs not cooperate willingly, they will push for legislation to compel the ISPs to submit, although this might necessitate an effective repeal of the DMCA, as in letter the DMCA acts as a conditional limitation of liability rather than a prohibition. It remains to be seen if the current legislature in the US in fact will be receptive to this idea.

Reminder: This is not legal advice, merely my own ideas and observations on a discussion forum. Always consult counsel qualified in your jurisdiction before taking action. Doubly so if you're an ISP tech looking at these as they come in and wanting to know if you can killfile them; definitely contact your legal department and seek specialist advice regarding your individual situation.

Re:What is your agenda?

[NewYorkCountryLawyer]

Whoa, time out! NYCL is the local Slashdot guru on all things RIAA and IIRC, been personally involved in the good fight for quite some time. I don't recall him ever advocating Scientology in the past. Several thousand knowledgable and well-researched posts to Slashdot on RIAA matters over a period of many years just to trick people into clicking on a Scientology ad today would have to constitute the most over-engineered setup of all time.

Not only have I never promoted Scientology, I wouldn't promote any religion, ever. I hate the whole concept of trying to sell one's own religion to others. Just as much as I hate the whole concept of trying to disparage someone else's religion.