Unlike the baloney being spun by this character, I have, on my blog, a link to the actual FTC complaint, which accurately describes the law, here and a link to an excellent article by Maura Corbett on C/Net News, which is also much more accurate than the propaganda emanating from the know-nothings in the content cartel, here.
Sorry I left out 2 words from my previous post. After the word "scruples" I meant to have the words "is easy". The comment should have read
Mac, if you think representing people with no money against a cartel of multinational corporations with money coming out of its ears, using lawyers who have no scruples, is easy.... ask any of the other lawyers representing defendants in these cases and ask them how 'easy' it is. If you can get us a grant of a couple of million dollars it will be a lot 'easier'.
Mac, if you think representing people with no money against a cartel of multinational corporations with money coming out of its ears, using lawyers who have no scruples.... ask any of the other lawyers representing defendants in these cases and ask them how 'easy' it is. If you can get us a grant of a couple of million dollars it will be a lot 'easier'.
I guess you haven't been reading much. These cases are not based upon any knowledge of any downloading on the RIAA's part, but based upon the existence in cyberspace of a shared files folder in a Fastrack p2p file sharing account, such as Kazaa, iMesh, Gnutella, LimeWire, etc.
The RIAA's "expert" has admitted [blogspot.com] that he doesn't have a clue as to what 'individual' may have been doing the file sharing, and that his methods and MediaSentry's methods haven't been subjected [blogspot.com] to any of the testing that is required for them to be usable as evidence in Court, yet in my presence, a couple of months ago, an RIAA lawyer stood up in court and said to the judge that MediaSentry's investigator "detected an individual downloading and uploading". I'm curious, would this not open that lawyer up to a contempt of court or perjury charge for lying to the judge? Perjury? No.
Sorry I can't join in on this lively Noerr Pennington discussion, since this is a public forum and I don't want to share my thoughts with the RIAA's running dogs -- er, lap dogs -- er, lawyers. Suffice it to say that the motion they had the nerve to file is shamefully unprofessional, and 100% frivolous, and can only have been submitted in the mistaken belief that Judge Trager just came in to town off of the turnip truck. But until my brief is filed on or before September 18th I must stay mum on precisely why that is. When it is filed there will be a post on my blog linking to it.
Wow, your comments show a huge lack of understanding of this issue. Just to clarify, the issue here is not copyright violations, it is about how the RIAA has been conducting itself for years now. This class action has nothing to do with cheering on copyright violation, it's about putting an end to the RIAA's illegal and borderline illegal abuse of the American courts. Copyright abuse is a two-way street and by all accounts the RIAA has acted as improperly as any copyright violator. Well you've got that right. From my experience the majority of people the RIAA targets are people who did not do any file sharing of any kind. The RIAA's "expert" has admitted that he doesn't have a clue as to what 'individual' may have been doing the file sharing, and that his methods and MediaSentry's methods haven't been subjected to any of the testing that is required for them to be usable as evidence in Court, yet in my presence, a couple of months ago, an RIAA lawyer stood up in court and said to the judge that MediaSentry's investigator "detected an individual downloading and uploading".
Apropos our discussion on "public reaction" I see that the Associated Press has just picked up the story about Tanya Andersen's class action against the RIAA, a story that was reported here on Slashdot two weeks ago after it had been first reported on Jon Newton's web site p2pnet.net and on my lowly blog. And if you go the "commentary & discussion" section near the end of the blog post, you'll see a list of just some of the online media that have been discussing it, including Wired.com, Ars Technica, TechDirt, The Register, Yahoo! Tech, and many others, including European news media as well.
True it is that these stories are of greater interest to people interested in music, computers, the internet, p2p file sharing of music, videos, and games, or law.... but that includes MOST people under 50, a lot of people over 50, and almost everybody under 40.
Ironically, of all the people I know, the only one I can think of who would not be interested in any of this is.... believe it or not... Marie Lindor. She's never even turned on, let alone used, a computer, and she's worked such long hours as a home health aide, leaving early in the morning, getting home late, working weekends, and being a homemaker throughout... she doesn't have time to listen to music.
You're wrong about that westlake, there is a lot of public awareness of what is going on. I get interview requests probably 3 to 5 times a week, by all sorts of media, and have been on national television, and was just interviewed for national public radio. My blog is frequently listed as one of the most popular intellectual property law blogs of the 117 tracked by the Justia web site, has gotten as many as 68,000 unique visitors in a single day, and is usually near the top of blogs on Blogger.com, sometimes just under the blog for "printable coupons".
People care about their music. And about their freedom.
The FSF is not in the exclusive paid service of a group of for-profit corporations. That's the real point of the motion - this is collusion by a group of corporations. The FSF would likely be classified as a watch-dog group, like the ACLU. The distinction is one which is difficult to codify into law succinctly, but has clear moral differences. That's one of the key problems with laws - they attempt to codify behaviors into a language which is unable to accurately depict intent. Thanks, Overzeetop.
There's no comparison at all.
Here we have 4 multinational corporations who control 80% of an industry. They have pooled all of their copyrights and joined forces in a blood pact not to reach a separate settlement with any defendant. Their settlements are nonnegotiable. It is their way, or the highway.
It is textbook collusion, which has one purpose and one purpose only -- to take the value of their copyrights, which are each lawful monopolies, and leverage and combine them into a greater, more powerful, more valuable supermonopoly. It is a classic, textbook example of copyright misuse.
Having read the original court filings of a great number of these cases, they tend to have about 10 plaintiffs v. the infringing party, covering everyone whose copyright was misappropriated in the same lawsuit.
They bring it as a group action. Precisely.
It took 6 major multinational corporations to join forces against a home health aide living in Brooklyn.
What possible legal justification can there be for that?
If the RIAA labels were actually competing among themselves, then any one of them would be happy to see the others suffer alleged loss of sales. Paying RIAA lawyers to safeguard their alleged competitors' profits is therefore direct anti-competitive collusion, rather than mere pooling of legal costs: they pay shared lawyers to perform actions which they know will support their "competitors".
If real competition between labels existed, then individual labels would reduce their own prices to make official purchases as attractive as file sharing, and they would provide vast band sites to attract the purchaser, and broaden their music spectrum away from the incredibly narrow current crap, and entice fans into buying the physical albums and accessories later for profit, as fans like to do. (Often much later in life, when they have more money.) In a nutshell, they would compete on product.
If you stand back from this whole scene and try to see it through the spectacles of a free market and competition analyst, you'll find none of those elements present in their music marketting. RIAA labels simply do not respond to drop in sales by reducing their prices or raising their quality and music coverage, like indies do.
It's often described as a cartel, but some cartels are relatively shallow and defensive, whereas this one effectively has the entirety of public media in its grasp and the ears/wallets of politicians too, and has a strategy based on offence and intimidation. It is about as malevolant and anti-competitive as you can get without breaking kneecaps. And while they don't break kneecaps, they certainly have no compunction about destroying lives economically, based on legal theories which they lobbied to create.
Their slimy lawyers will probably slither out from under a charge of anti-competitive economic collusion because the legal system is driven by technicalities rather than substance. But the RIAA labels are certainly guilty as sin of it. They lost any concept of competition between them long ago. Excellent comment, Morgaine. Thank you.
I predict that they will not be slithering out of this one. Their brief is entirely frivolous, and will not make a positive impression on Judge Trager.
And by the way, they do destroy lives, and more than just economically. Many of the people victimized in this onslaught are ill equipped to deal with the stress and anxiety the RIAA's lawyers have caused them.
the individual labels bring the suits because it is the individual labels that own the copyrights being violated. The RIAA has no legal standing to sue someone for violating BMG's copyrights -- and in a way, that's the argument being made here, that the RIAA is an organization that is acting more like an agent of collusion than as a trade organization. That is correct.
The individual record companies in UMG v. Lindor are UMG Recordings, Inc., Warner Bros. Records Inc., Arista Records LLC, Interscope Records, Motown Record Company, L.P., and SONY BMG Music Entertainment. But the lawyer for the plaintiffs takes his instructions from the RIAA, and the settlement authority comes from the RIAA, and if one settles with them the settlement payment is payable to "RIAA Client Trust Account".
It may perform some functions of a trade association in other contexts; I don't know. But in connection with the litigations it only represents the 4 major record companies; no other RIAA members are involved.
In connection with the litigation campaign, it is, as you point out, the "agent of collusion".... no more, no less.
The precedential value of this case is very low. It's a single ruling by a trial judge. In all likelihood, the actual opinion won't even be published.
Now, if these folks decide to appeal this ruling, and the relevant Court of Appeals decides to affirm, then there's a real precedent you've got to worry about. Plus it was a pro se case. Defendants had no legal representation. That in my opinion totally destroys what little precedential value it had.
Just because a decision sounds reasonable on its face doesn't mean it is; the judge could be mischaracterizing the facts and mischaracterizing the authorities he's referring to. See my letters on the decision, the recent decision of the First Circuit in Latin American Music v. Archdiocese of San Juan, and the underlying authorities (collected here), before jumping to conclusions. The Latin American Music case shows that there is no basis in the Copyright Act for the RIAA's argument.
The only reason for this erroneous decision is that the Howells couldn't afford a lawyer to represent them. Which is why as a blogger I rarely report on, and as a lawyer I would never cite as an authority, -default judgments -ex parte orders or -pro se cases.
A precedent which is not the result of adverse parties fully and fairly presenting both sides of a case to the judge.... is not a precedent at all. No judge takes such 'precedents' into account, and no lawyers -- except the RIAA lawyers -- would have so little self respect as to rely on such 'precedents'.
When Judge Karas comes down with his decision in Elektra v. Barker, where a full and fair hearing was given to both sides, and amicus curiae briefs from the affected industries and from the government were taken into account.... then we'll all know where we stand on the "making available" issue.
As you have already discovered, IANAN - I am not a Nimmer Well maybe not yet, but you're getting there.
Maybe this, the >Latin American Music v. Archdiocese of San Juan case, will cheer you up, where the US Court of Appeals for the First Circuit reminded us that the whole conceptual underpinning of the RIAA's 'making available' argument is baloney.
Greubel held that "making available" might be actionable "in certain circumstances" but accepted the general, well established principle that distribution can occur only when there has been "actual dissemination". The Greubel court cited Hotaling but noted that Hotaling was a special fact pattern that has been distinguished by other courts. The court noted that the RIAA had alleged that the defendant had "actively reproduced and/or distributed" and came to the conclusion that Greubel had not shown that plaintiffs could "establish no set of circumstances under which they might prevail". That is a far cry from concluding that the mere 'making available' would in and of itself constitute a copyright infringement.
1. The Greubel and Duty cases did not hold that making available was distribution; they said they could not understand the technology sufficiently to pass upon the question and deferred ruling until after pretrial discovery.
2. The second Napster decision to which you refer specifically held that making available is not distribution.
3. The Hotaling case specifically noted that normally there can't be distribution without actual dissemination of copies. It then carved out an exception because the defendant was a library which kept no circulation records therefore making it impossible to find out if there had been dissemination of the concededly unauthorized copies which the defendant had scattered throughout its library branches.
Until now, AOL has been assisting the RIAA in the persecution of AOL's customers. Maybe this will be a wakekup call to them that they have some responsibility to protect their customers' rights too. Until now the customers have been voiceless.
Slashdot Mirror
Unlike the baloney being spun by this character, I have, on my blog, a link to the actual FTC complaint, which accurately describes the law, here and a link to an excellent article by Maura Corbett on C/Net News, which is also much more accurate than the propaganda emanating from the know-nothings in the content cartel, here.
On my blog I have a link to the actual complaint here and a link to a good article by Maura Corbett on C/Net News about the case here.
I have never yet seen a case in which the RIAA was aware of any "downloading".
Mac, if you think representing people with no money against a cartel of multinational corporations with money coming out of its ears, using lawyers who have no scruples.... ask any of the other lawyers representing defendants in these cases and ask them how 'easy' it is. If you can get us a grant of a couple of million dollars it will be a lot 'easier'.
The link to the Variety article works fine for me.
I am working to get you that last laugh.
I guess you haven't been reading much. These cases are not based upon any knowledge of any downloading on the RIAA's part, but based upon the existence in cyberspace of a shared files folder in a Fastrack p2p file sharing account, such as Kazaa, iMesh, Gnutella, LimeWire, etc.
Contempt? Yes.
Rule 11 sanctions? Yes.
Sorry I can't join in on this lively Noerr Pennington discussion, since this is a public forum and I don't want to share my thoughts with the RIAA's running dogs -- er, lap dogs -- er, lawyers. Suffice it to say that the motion they had the nerve to file is shamefully unprofessional, and 100% frivolous, and can only have been submitted in the mistaken belief that Judge Trager just came in to town off of the turnip truck. But until my brief is filed on or before September 18th I must stay mum on precisely why that is. When it is filed there will be a post on my blog linking to it.
For an earlier interview (in June when I was in Santa Monica for the P2P Media Summit) see this one.
Marketplace.
I was interviewed on August 7th but I don't know when the piece aired or will air.
Stay tuned for our opposition brief, which is scheduled to be filed September 18th.
Apropos our discussion on "public reaction" I see that the Associated Press has just picked up the story about Tanya Andersen's class action against the RIAA, a story that was reported here on Slashdot two weeks ago after it had been first reported on Jon Newton's web site p2pnet.net and on my lowly blog. And if you go the "commentary & discussion" section near the end of the blog post, you'll see a list of just some of the online media that have been discussing it, including Wired.com, Ars Technica, TechDirt, The Register, Yahoo! Tech, and many others, including European news media as well.
True it is that these stories are of greater interest to people interested in music, computers, the internet, p2p file sharing of music, videos, and games, or law.... but that includes MOST people under 50, a lot of people over 50, and almost everybody under 40.
Ironically, of all the people I know, the only one I can think of who would not be interested in any of this is.... believe it or not... Marie Lindor. She's never even turned on, let alone used, a computer, and she's worked such long hours as a home health aide, leaving early in the morning, getting home late, working weekends, and being a homemaker throughout... she doesn't have time to listen to music.
And she never even heard of file sharing.
People care about their music. And about their freedom.
There's no comparison at all.
Here we have 4 multinational corporations who control 80% of an industry. They have pooled all of their copyrights and joined forces in a blood pact not to reach a separate settlement with any defendant. Their settlements are nonnegotiable. It is their way, or the highway.
It is textbook collusion, which has one purpose and one purpose only -- to take the value of their copyrights, which are each lawful monopolies, and leverage and combine them into a greater, more powerful, more valuable supermonopoly. It is a classic, textbook example of copyright misuse.
It took 6 major multinational corporations to join forces against a home health aide living in Brooklyn.
What possible legal justification can there be for that?
I predict that they will not be slithering out of this one. Their brief is entirely frivolous, and will not make a positive impression on Judge Trager.
And by the way, they do destroy lives, and more than just economically. Many of the people victimized in this onslaught are ill equipped to deal with the stress and anxiety the RIAA's lawyers have caused them.
The individual record companies in UMG v. Lindor are UMG Recordings, Inc., Warner Bros. Records Inc., Arista Records LLC, Interscope Records, Motown Record Company, L.P., and SONY BMG Music Entertainment. But the lawyer for the plaintiffs takes his instructions from the RIAA, and the settlement authority comes from the RIAA, and if one settles with them the settlement payment is payable to "RIAA Client Trust Account".
It may perform some functions of a trade association in other contexts; I don't know. But in connection with the litigations it only represents the 4 major record companies; no other RIAA members are involved.
In connection with the litigation campaign, it is, as you point out, the "agent of collusion".... no more, no less.
Just because a decision sounds reasonable on its face doesn't mean it is; the judge could be mischaracterizing the facts and mischaracterizing the authorities he's referring to. See my letters on the decision, the recent decision of the First Circuit in Latin American Music v. Archdiocese of San Juan, and the underlying authorities (collected here), before jumping to conclusions. The Latin American Music case shows that there is no basis in the Copyright Act for the RIAA's argument.
.... is not a precedent at all. No judge takes such 'precedents' into account, and no lawyers -- except the RIAA lawyers -- would have so little self respect as to rely on such 'precedents'.
The only reason for this erroneous decision is that the Howells couldn't afford a lawyer to represent them. Which is why as a blogger I rarely report on, and as a lawyer I would never cite as an authority,
-default judgments
-ex parte orders or
-pro se cases.
A precedent which is not the result of adverse parties fully and fairly presenting both sides of a case to the judge
When Judge Karas comes down with his decision in Elektra v. Barker, where a full and fair hearing was given to both sides, and amicus curiae briefs from the affected industries and from the government were taken into account.... then we'll all know where we stand on the "making available" issue.
Maybe this, the >Latin American Music v. Archdiocese of San Juan case, will cheer you up, where the US Court of Appeals for the First Circuit reminded us that the whole conceptual underpinning of the RIAA's 'making available' argument is baloney.
Greubel held that "making available" might be actionable "in certain circumstances" but accepted the general, well established principle that distribution can occur only when there has been "actual dissemination". The Greubel court cited Hotaling but noted that Hotaling was a special fact pattern that has been distinguished by other courts. The court noted that the RIAA had alleged that the defendant had "actively reproduced and/or distributed" and came to the conclusion that Greubel had not shown that plaintiffs could "establish no set of circumstances under which they might prevail". That is a far cry from concluding that the mere 'making available' would in and of itself constitute a copyright infringement.
1. The Greubel and Duty cases did not hold that making available was distribution; they said they could not understand the technology sufficiently to pass upon the question and deferred ruling until after pretrial discovery.
2. The second Napster decision to which you refer specifically held that making available is not distribution.
3. The Hotaling case specifically noted that normally there can't be distribution without actual dissemination of copies. It then carved out an exception because the defendant was a library which kept no circulation records therefore making it impossible to find out if there had been dissemination of the concededly unauthorized copies which the defendant had scattered throughout its library branches.
The key is that this was a pro se case. Defendant was not represented by counsel.
Until now, AOL has been assisting the RIAA in the persecution of AOL's customers. Maybe this will be a wakekup call to them that they have some responsibility to protect their customers' rights too. Until now the customers have been voiceless.