I am a big fan of the Motley Fool website, but these guys are an "investment website", which really means they're simultaneous trying to attract readers to entertain them and hopefully sell their various investment newsletters. Generally I think they have a fair bit of credibility, focusing on things like investing over a decade-long time horizon, not piling into the "next big thing" and watching things like mutual fund expenses.
That being said, I'm not sure why we particularly care about this particular article, other than the fact that it parrots the party line here at Slashdot. These guys aren't lawyers, and don't spend a lot of time examining the recording industry. In fact, over the 7 years that I've been reading their articles, this is the *only* one I can recall that discusses the music industry at all. It strikes me very much as an op-ed piece rather than a serious legal or business study of an industry, and I don't give it any more credibility than some guy ranting on his blog.
To be sure, the RIAA has suffered legal defeats and setbacks, but just because a financial news and opinion site happens to pick up on it does not mean that the industry is going to collapse, nor does it mean that those who are being/will be sued should stop worrying.
Here's why I care.
The fact that an investment web site like Motley Fool and a business program like "MarketPlace" (which just did a 3-part series last week on the record industry's grand mistake) take hold of the issue isn't necessarily of interest from a legal point of view or a scientific point of view, but it is of great interest to shareholders and would be shareholders.
The impetus for dropping this campaign won't come from -the lawyers who have been the principal beneficiaries of this juggernaut, -techies, -the entrenched management who would never admit to their shareholders that they've been on a fool's errand for the past 4 1/2 years, -the RIAA which has been destroying the record companies, or -anyone else.
It will come from shareholders when they come to realize they are being taken for a ride by a handful of morons who were too dumb to (a) realize the business opportunity the internet represented for them until it was too late, and/or (b) create a new business model that could harness the internet's energy.
The investment community is coming to realize that the big 4 record companies stocks -- all referred to in the Motley Fools articles -- won't be worth a damn until the record companies leave the past, enter the present, and work to survive into the future.
That's why the article means something.
PS As a lawyer, I think the Motley Fool author's understanding of the legal issues was pretty good, certainly a lot better than that of the RIAA lawyers I've met.
By the way, this is Cary Sherman, who is on the plaintiffs' so called witness list. Watch his performances on CNN and CBS and tell me what kind of witness you think he'd make.
I think the real issue here is the RIAA's inability to see that the whole idea is a bad business move. I agree. When an investment site like Motley Fool gets hold of it, that should tell the shareholders something. Also, NPR's business show, "Marketplace", did an excellent 3- part series last week on the wrongheadedness of the RIAA's litigation campaign, and of alternative business models it should be exploring instead.
Why did the RIAA target people who could defend themselves? i.e. the inocent.
Couldn't they have found a few people who were guilty, guilty, guilty and taken them all the way, and nailed them to a tree? Wouldn't it have been a better strategy to just drop any suit if the defendent was in the least bit sympathetic? The RIAA's "investigation" is so unscientific, poorly conceived, and inept, that I would say it is calculated to catch anybody BUT large scale copyright infringers.
Does the RIAA pay their shills well? Where do you apply? I doubt they pay well. Where would they get the money from? The big 4 record companies' mounting losses?
But if you really want the job I think you should send your application to their attorneys, who seem to be the ones running the show.
When I use the term "RIAA" I use it as a short form version of the phrase "The Big 4 Record Companies using the RIAA as a mask for their collusive sham litigation campaign." I am not referring to the Recording Industry Association of America, a sham trade association.
Sorry you didn't tell me from the outset that you were referring to Canada. Canada is a common law country, except for Quebec. Canada's law on file sharing is, as is that of the United States, unclear. It will probably take some good old fashioned common law judicial decisionmaking to clarify what the law is. But for now Canada is safer from big music's cruel lawsuits, because an appellate court in Canada correctly held in BMG v. Doe that the CRIA's evidence was too flimsy to warrant permitting the ISP's to turn over confidential subscriber information. So the lawsuits haven't been taking place in Canada, and I hope it stays that way.
1. Correction. I said "code", not "civil code".
2. Correction. File sharing is not criminalized in the U.S.
3. Congratulations. I'm happy for you that file sharing "has been determined to be legal" in your country. 4. Question. Was the "determination" in a "code" or was it a judge's decision interpreting the code? 5. Question. Do you want the judge's decision to be "perpetuated", or would you rather leave it up to other judges to ignore it because it was "misguided"? 6. I am guessing that -it was a decision by a judge, because the "code" did not specify whether file sharing was legal or not, and -you would want other judges to follow that decision, rather than for each new case to be a guessing game as to what the judge's personal opinion will be. 7. People need to know, when they wake up in the morning, how to plan their lives so they don't run afoul of the law. They need to know what the law is, and can't have a random system where each judge's personal opinion is all that counts. And no legislator is so much of a prophet that he can write a code that will cover all eventualities. Sometimes one needs a judge to apply the law to the facts. So you see, the 2 systems are not so dissimilar after all. And you are not so different than the people you are attacking. You too, want good judicial decisions to be followed by future judges.
Pfft. I don't know why you think, for example, that France is more civilized than the UK or Louisiana than Mississippi. I suppose you're entitled to your opinion, but you're not doing yourself any favors by being derogatory toward "Anglo-Saxons."
In the US, most situations are also formally codified -- in those cases, the judge just applies the statute to the case at hand. The only question is what you do when you hit a new situation which isn't formally codified. I have a tough time believing that any country has a civil code in which the solution for all possible disputes is set out in black and white. There have to be in-between areas where the rules do not precisely spell out the answer. And, then the question is: what happens to the second person who hits that gray area? Is he allowed to say "Look. I did exactly the same thing John did, and you said he didn't do anything wrong, so you shouldn't find that I did anything wrong either"? In France people are being prosecuted criminally for offending the record companies by engaging in peer to peer file sharing.
This is the main problem with anglo-saxon "justice" systems. It's a fairly primitive law-system (similar to those used to stone-age cultures) since it is dictated by custom. It essentially means that whatever misguided decisions must be perpetuated ad vitam æternam, and whenever a new decision has been made (such like when new, never before seen, technology, such as the Internet, is involved), the prevailing party is the one with the deepest pockets, who is able to afford the best legal team to shoehorn the case into various precedent cases, no matter how unrelated or convoluted, and make it stick to the court.
Fortunately, other, more civilized countries use a civil code system where most situations are formally codified, which essentially prevents rich people from making their own custom-made laws and shove them down the throats of, We, the People, against our will. I am not in a position to discuss the merits of the common law system versus those of a code system, since I have never practiced law under a code system. But I can tell you that -your description of our common law system is way off base in many, many respects, and -in some code countries, like France, people are being prosecuted criminally for p2p file sharing, in order to enrich the coffers of the big record companies. 3 of the 4 big record companies are based in code countries, where they apparently have quite a lot of influence over the "code".
Giant multinational corporations have too much influence everywhere. That is the problem.
If they're operating in the black they can keep this up forever, but if this has turned into into an ineffective money sink their masters may eventually call a halt. I'm thinking it's the judges who are starting to call a halt. I'm seeing judges -throw out the RIAA's boilerplate complaint -uphold very grave counterclaims -balk at the ex parte motion practice, and -assess attorneys fees.
I have no feel for the costs involved. I had sort of tacitly assumed that they were profiting from the cases that settled immediately Again, based on nothing more than my general knowledge and arithmetic, I think the RIAA -makes a profit on the settlements, -loses money on the default judgment cases (which make up the large majority of the cases), and -loses a ton of money on any contested cases. I think the percentage of cases ending in default judgments and in settlements has diminished, and the percentage being contested has increased, thus moving them from breaking even to losing money.
I just can't imagine any court procedings fixing our societal dilemma. Beyond the assumption that the **AA problem can only be solved as a "societal dilemma," I'm guessing you aren't a lawyer. I'm guessing that not only is he not a lawyer, he's never read a history book, either. Because court proceedings have been crucial at every stage of American history, and have fixed many 'societal dilemmas' which neither the legislative bodies nor the executive branches in state and federal government were able to 'fix'. I have already labeled the author of the GP a "foe" and he continues to demonstrate that he richly deserves that appellation.
Speaking of money, I had always thought the RIAA was funded by the various member corporations, and was to some degree subject to their will. With the RIAA extracting substantial sums from these settlements, are they functioning now as an independent profit-making enterprise? Are they operating this lawsuit mill at a loss? If not... where does the money go, anyway? Being somewhat familiar with what is going on, and being fairly good in arithmetic, I'm pretty sure they're operating the litigation mill at a substantial loss. But I think their primary objective is to save their dying business model, which is a much bigger problem than the few million a year they're dropping on the litigation.
I.e., they are not measuring it in terms of whether the revenues from the litigation exceed the expenses of the litigation. The primary objective of the litigations isn't to produce revenue; it's to produce terror.
The problem is, the people they're trying to terrorize are laughing at them, and have long ago figured out how to avoid detection.
The people they are terrorizing aren't their enemies; they're innocent folks like Tanya Andersen.
The expectation by the RIAA of their attempts at extortion being protected by Noerr/Pennington probably encouraged them to start (and to continue) making them......could you give us a little insight into why the RIAA would fail at such a defense? 1. Well, last week's decision by Judge Lazzara in UMG v. Del Cid, rejecting the RIAA's attempt to rely on Noerr Pennington, gives you one of the many reasons.
3. I can't here discuss with you all of the many reasons the RIAA's attempts to hide behind Noerr Pennington will fail, since the RIAA lawyers seem to read everything I write on the internet, but if you follow the legal documents filed on my blog you'll no doubt see more on the subject.
4. By the way, I doubt that they thought about Noerr Pennington when they started doing the illegal things they do; I think N-P is just an afterthought their lawyers came up with in hopes of preventing the Courts from finding out about their illegal conduct. But it will all come out. In the Napster case they lost their attorney client privilege by reason of the fact that their attorneys had lied to the US Department of Justice team investigating their digital music price fixing scheme. See "Court Finds Reasonable Cause to Believe that UMG and Capitol Deceived United States Dept of Justice", Recording Industry vs. The People, April 21, 2006.
Id be interested to know if you thought that the system you described regarding precedents, where they are established and where they are valid is satisfactory, or, if you would prefer either that each case be judged purely on its own merits, Precedent is part of the rule of law in our system. Asking judges to decide "each case on its own merits", without regard to legal principles that have been worked out over the years, would
-leave too much to chance
-heighten unpredictability, and
-wreak havoc on our ability to plan our lives. I.e., it would be a step towards lawlessness.
Slashdot Mirror
Here's why I care.
The fact that an investment web site like Motley Fool and a business program like "MarketPlace" (which just did a 3-part series last week on the record industry's grand mistake) take hold of the issue isn't necessarily of interest from a legal point of view or a scientific point of view, but it is of great interest to shareholders and would be shareholders.
The impetus for dropping this campaign won't come from
-the lawyers who have been the principal beneficiaries of this juggernaut,
-techies,
-the entrenched management who would never admit to their shareholders that they've been on a fool's errand for the past 4 1/2 years,
-the RIAA which has been destroying the record companies, or
-anyone else.
It will come from shareholders when they come to realize they are being taken for a ride by a handful of morons who were too dumb to (a) realize the business opportunity the internet represented for them until it was too late, and/or (b) create a new business model that could harness the internet's energy.
The investment community is coming to realize that the big 4 record companies stocks -- all referred to in the Motley Fools articles -- won't be worth a damn until the record companies leave the past, enter the present, and work to survive into the future.
That's why the article means something.
PS As a lawyer, I think the Motley Fool author's understanding of the legal issues was pretty good, certainly a lot better than that of the RIAA lawyers I've met.
By the way, this is Cary Sherman, who is on the plaintiffs' so called witness list. Watch his performances on CNN and CBS and tell me what kind of witness you think he'd make.
I know I'll get modded down for this for not having something more profound to say, but.......
:)
Since you haven't even attempted to document those 6 cases I have to assume you were fictionalizing. Accordingly, I am moving you to the "foe" column.
Well, the Constitutions you refer to are part of the law. And a juror is supposed to accept the judge's instructions on what the law is.
The purpose of a jury isn't to decide the whole case, it's to decide the disputed facts.
did they sign it?
to see Apple just dump Vivendi!
It would make my day.
Well I'm glad you decided not to "counter-argue".
But if you really want the job I think you should send your application to their attorneys, who seem to be the ones running the show.
When I use the term "RIAA" I use it as a short form version of the phrase "The Big 4 Record Companies using the RIAA as a mask for their collusive sham litigation campaign." I am not referring to the Recording Industry Association of America, a sham trade association.
Would you please give me the citations to the 6 reversals in 1 week to which you refer?
Thank you for your kind words, Di-Ex. The Slashdot community has been a bright light to me as well.
Sorry you didn't tell me from the outset that you were referring to Canada. Canada is a common law country, except for Quebec. Canada's law on file sharing is, as is that of the United States, unclear. It will probably take some good old fashioned common law judicial decisionmaking to clarify what the law is. But for now Canada is safer from big music's cruel lawsuits, because an appellate court in Canada correctly held in BMG v. Doe that the CRIA's evidence was too flimsy to warrant permitting the ISP's to turn over confidential subscriber information. So the lawsuits haven't been taking place in Canada, and I hope it stays that way.
1. Correction. I said "code", not "civil code".
2. Correction. File sharing is not criminalized in the U.S.
3. Congratulations. I'm happy for you that file sharing "has been determined to be legal" in your country.
4. Question. Was the "determination" in a "code" or was it a judge's decision interpreting the code?
5. Question. Do you want the judge's decision to be "perpetuated", or would you rather leave it up to other judges to ignore it because it was "misguided"?
6. I am guessing that
-it was a decision by a judge, because the "code" did not specify whether file sharing was legal or not, and
-you would want other judges to follow that decision, rather than for each new case to be a guessing game as to what the judge's personal opinion will be.
7. People need to know, when they wake up in the morning, how to plan their lives so they don't run afoul of the law. They need to know what the law is, and can't have a random system where each judge's personal opinion is all that counts. And no legislator is so much of a prophet that he can write a code that will cover all eventualities. Sometimes one needs a judge to apply the law to the facts. So you see, the 2 systems are not so dissimilar after all. And you are not so different than the people you are attacking. You too, want good judicial decisions to be followed by future judges.
-your description of our common law system is way off base in many, many respects, and
-in some code countries, like France, people are being prosecuted criminally for p2p file sharing, in order to enrich the coffers of the big record companies. 3 of the 4 big record companies are based in code countries, where they apparently have quite a lot of influence over the "code".
Giant multinational corporations have too much influence everywhere. That is the problem.
-throw out the RIAA's boilerplate complaint
-uphold very grave counterclaims
-balk at the ex parte motion practice, and
-assess attorneys fees.
-makes a profit on the settlements,
-loses money on the default judgment cases (which make up the large majority of the cases), and
-loses a ton of money on any contested cases.
I think the percentage of cases ending in default judgments and in settlements has diminished, and the percentage being contested has increased, thus moving them from breaking even to losing money.
I.e., they are not measuring it in terms of whether the revenues from the litigation exceed the expenses of the litigation. The primary objective of the litigations isn't to produce revenue; it's to produce terror.
The problem is, the people they're trying to terrorize are laughing at them, and have long ago figured out how to avoid detection.
The people they are terrorizing aren't their enemies; they're innocent folks like Tanya Andersen.
2. Defendant's opposition papers in Lava v. Amurao and our opposition memorandum in UMG v. Lindor give you some others.
3. I can't here discuss with you all of the many reasons the RIAA's attempts to hide behind Noerr Pennington will fail, since the RIAA lawyers seem to read everything I write on the internet, but if you follow the legal documents filed on my blog you'll no doubt see more on the subject.
4. By the way, I doubt that they thought about Noerr Pennington when they started doing the illegal things they do; I think N-P is just an afterthought their lawyers came up with in hopes of preventing the Courts from finding out about their illegal conduct. But it will all come out. In the Napster case they lost their attorney client privilege by reason of the fact that their attorneys had lied to the US Department of Justice team investigating their digital music price fixing scheme. See "Court Finds Reasonable Cause to Believe that UMG and Capitol Deceived United States Dept of Justice", Recording Industry vs. The People, April 21, 2006.
-leave too much to chance
-heighten unpredictability, and
-wreak havoc on our ability to plan our lives. I.e., it would be a step towards lawlessness.