Substantive due process... in THIS Supreme Court? That's a mighty weak peg to be hanging your hat on, IMO. I didn't say substantive due process. I said it's based on the due process clause. You need to read the cases and the law review articles if you really want to know.
The only argument that I can think of that goes in his favor is an argument concerning the "equal protection under the law" clause whereby he would argue that he is unfairly being singled out for a higher amount than would usually be demanded of any other defendant in a similar situation due to some factor which is external to the matter at hand. The defense is based on the due process clause, not the equal protection clause. See second paragraph here.
/. is linking to an 'article' that is like 5 words longer than the quoted text. Would it, maybe, be useful to have a link to something that actually says What Does This Mean To The Average Slashdot Audience? Mini-rant off. Thanks for letting me vent. My site, "Recording Industry vs The People" is basically just a primary news source. I don't often get into commentary. However I do usually include a "commentary and discussion" section which keeps getting expanded as worthwhile internet discussion (including sometimes Slashdot) starts forming around the news.
Sorry guys, but I agree with the judges. There is nothing in the constitution that says the RIAA can't sue you for however much they want to. Sorry, guy, but what "judges" are you talking about? The only judges I'm aware of who have ruled on the subject have said that the RIAA's $750-per-song file damages theory may well be unconstitutional. See also In re Napster Inc., 2005 WL 1287611 at *10-11, 77 U.S.P.Q. 2d 1833, 2005
Copr. L. Dec. P 29,020 (N.D. Cal. June 1, 2005). And legal scholars have said it is unconstitutional.
Who isn't the RIAA's customer? It's not like this is a business that is trying to avoid losing customers to a competitor. The general public has no clue what the RIAA does, who they represent, or who its "competitors" are.
If the individual music labels were the ones in the news, that might be an entirely different matter. The beauty of doing all of this through the RIAA is that none of the RIAA's members are in the light. Yes, some of us know who they are, but when someone reads something in the news about the RIAA suing people downloading music, they're not thinking about the labels behind it. (And even if they do, how many are going to keep up their little protest when So-And-So's latest album just came out, and it's REALLY good, like omg!) When I use the term "RIAA" I'm using it as shorthand for the 'cartel of 4 major record companies, and 1 independent, which have agreed to collude together to bring lawsuits under the aegis of their 'trade association', the RIAA, listed here and here.
Well that's encouraging. And hopefully more universities will find themselves able to take advantage of this as it propagates from district to district.
But even so, would you really rather that the university not give you advance warning that the RIAA has you in its sights? Personally, if I were the student or student's parent, I would want my university to tell the RIAA that it will be willing to send along the letters if and only if the RIAA agrees that, as to any students who choose not to settle, the application for a discovery order will be made on notice and not ex parte, and will not violate federal joinder rules, as outlined in my Open Letter to Colleges and Universities.
If the RIAA would not agree to that, then I would want my university to tell the RIAA to "take a hike" with its settlement letters.
I would not care one way or the other about getting the letter, because it's not as though the letters contain useful information. The letter is simply a shakedown.
It is possible that they are going after anybody they can find and are not too worried about whether those people have actually infringed any of their members' copyrights. This campaign could be designed to convince people to stop getting music from the internet because of the fear of getting sued. It could well be.
If the RIAA were interested in enforcing copyright the simplist thing for them to do would be to sue the universities in question Yes but the universities would fight back.
The RIAA's tactics are no different from any other Big Business or malcontent exploiting America's legal system. I don't know, it's pretty unusual for Big Business to spend millions of dollars suing its customers. This type of copyright infringement suit is a totally new thing... maybe 5 years old. Except for the RIAA, MPAA, Direct TV, and cable descrambler cases, I've never heard of anything like this.
Historically a detection by a copyright holder of a non-commercial infringement would be ignored, or at most would result in a cease and desist agreement, not a choice between (a) a federal copyright infringement lawsuit or (b) payment of thousands of dollars.
They may have changed now that they're expanding their program and leading with settlement letters; for all I know you might be liable to get a letter if they catch you sharing just one song. Ray Beckerman might be able to jump in here and offer his opinion, since he's on the front line. They've been going after accounts with a couple of hundred song files -- not necessarily all the RIAA's and not necessarily all downloaded without authorization.
The university is receiving this advance notice that you're going to be sued, and they have a choice of whether or not to let you know about it. Keep in mind that the RIAA is going to get a subpoena for your contact information anyway, so the University can't shield you from a lawsuit by withholding the letter. Not so.
The RIAA will only be able to issue a subpoena if the Court grants an ex parte order authorizing it to issue subpoenas.
If the university brought applicable law to the judge's attention, or gave the students a chance to hire their own lawyers and fight the discovery application themselves, the orders would never issue.
The RIAA tends to go after the "whales," who are sharing hundreds or thousands of songs.
I have never, ever heard anything that validates this claim. Do you happen to have a link? Yes distribution is an issue, but there is absolutely nothing I have heard of that suggests the RIAA makes a distinction based on volume. That's because it is a false claim. The RIAA is "targeting" accounts that have a couple of hundred song files, many of which have been lawfully obtained through purchased downloads and/or ripping personal copies from one's own cd's.
Bringing lawsuits, and demanding thousands of dollars in settlement money, over such minor infringements, is unprecedented.
The damages theories may be shocking, but I don't see how they could be unconsititutional. Congress undoubtedly has the power to set copyright law, and they've set the statutory damages to "obscene" (partially at the behest of the RIAA, of course). That gives the RIAA the leverage to do everything else. Read and learn how they could be unconstitutional.
I couldn't find it in TFA, but my understanding is that Harvard was originally included in the list, but then dropped after it indicated a willingness to fight the RIAA and not sell out its students. I know that Harvard isn't the only college/university fighting the RIAA on this, but I hope that as bigger names start joining the fight, the smaller schools will take their lead and also start saying no to the RIAA. To the best of my knowledge they have not attempted to take on Harvard.
Also we don't know how many schools may have said no to the RIAA, our information on this is anecdotal. Only the RIAA knows for sure... and they're not telling.
OK, the general attitude here is "I'll have my music and nobody is gonna stop me!"
The real question is has the RIAA ever won in court? Obviously, the uninformed opinion here is no, but has it happened?
The second point is can anyone be successfully sued in civil court for anything on the Internet? Assuming they do not brag about it on open forums or otherwise admit their actions, it would seem the general opinion here is that since nobody saw you do it, it cannot be proven who did it. Therefore, no responsibility exists. This seems like a very dangerous position to take because it pretty much establishes a legal defense for any sort of action, legal or not, on the Internet. Does this sound like a good way to go? Should use of the Internet convey immunity? Your comment is pretty weird, as I haven't seen the "viewpoints" which you're criticizing expressed by anyone here other than you.
As to your question whether the RIAA has ever won, the answer is, to the best of my knowledge, they have never won a fully contested case.
Harvard missing?
So is Yale.
So is University of Michigan, with the 2nd ranked law school after Yale.
Curious. But they can try to beat the hell out of NMU. What bullies, punching on weaker people. A basic rule I learned a long time ago:
Of all the Universities listed, none of them are known for their law schools. Who do they specifically exclude? The #2 ranked law school in the US (Source: http://grad-schools.usnews.rankingsandreviews.com/ usnews/edu/grad/rankings/law/brief/lawrank_brief.p hp [rankingsandreviews.com])
This only makes the fact that this campaign is based on preying on ignorance all the more obvious. No law students would fall for this, so they go to schools where they don't have to worry about law students. Excellent point, Anarchitektur.
actually im waiting for some student to sue the school for caving in and letting letting the students be harmed by the schools action. I wonder if a schools legal department has considered how going along with the RIAA might open them up to litigation. I wonder about that myself, because, as I pointed out here, the schools have been waiving their students' due process rights.
I still wonder if they're really making any money on all of this. I suppose now that they're mass-producing settlement letters, but I'd imagine they're paying their lawyers enough that it would take hundreds of settlements to break even. I think it's more likely to be about fear and power. They just want to frighten everyone away from downloading music, going on the assumption that everyone that would otherwise download music will go out and buy CD's instead. The power rush of being able to create new laws whenever they want probably also contributes a bit.
The problem may also be their own fear. Like politicians, if they appear to be doing nothing about a problem, they'll lose their jobs. Enough (important) people would rather see them do the wrong thing than nothing. Here's my take on the economics: -they make money on the settlements -they lose money on the default judgments and -they lose a fortune on any case where someone fights back.
Heh. Charlie N[esson] is not just "a professor". He's a law professor that started the Berkmen Center for Law and Technology. He's the last guy in America the RIAA wants to annoy. Where do you p]think Lessig got his i[d]eas on co[p]yright from? He was a student of Charlie's. Charlie is way cool.
Neesan's point is simple and quite legal: the RIAA should not outsource their investigation to universities. The RIAA is petrified at the thought of having to take on Prof. Nesson. They are cowards, and they will never take on Harvard.
While i have a problem with the strong arm court tactics they've been taking in the past few years, at least the "sue everyone" tactic was still properly using the legal system to resolve their disputes. However, these letters are extortion, and its that simple. I strongly disagree with you that their "sue everyone" tactic was 'properly using the legal system'. Their cases are -based on insufficient evidence -based on fabricated legal theories -based on unconstitutional and shocking damages theories, and -champertous, barratrous, and extortionate.
As a student at one of the named universities, I can only hope, for their sake and for the students', that the schools take a good hard look at their situations and view their internet account holders as paying customers and not criminals upon first accusation (looking at you, University of Kansas!). Throwing their own students in front of the RIAA bus would only lose them potential (and maybe current) students, and all the revenue they represent. And my hope is that the administrators and legal counsel at your school, and the others, take a good hard look at: -Interscope v. Does 1-7 throwing out the RIAA's motion -the article by Profs. Nesson and Palfrey telling the RIAA to take a hike -Capitol v. Does 1-16 holding that it's impermissible for them to proceed ex parte and -the article by Prof. Nesson and Wendy Seltzer urging Harvard to use its clinical legal programs to resist RIAA subpoenas and defend targeted students.
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Sorry, wrong link. Notice that case has been settled is here.
As it turns out, Attorney General Gonzalez won't have to decide whether or not to intervene in the case after all.
It appears that the case has been settled.
/. is linking to an 'article' that is like 5 words longer than the quoted text. Would it, maybe, be useful to have a link to something that actually says What Does This Mean To The Average Slashdot Audience? Mini-rant off. Thanks for letting me vent. My site, "Recording Industry vs The People" is basically just a primary news source. I don't often get into commentary. However I do usually include a "commentary and discussion" section which keeps getting expanded as worthwhile internet discussion (including sometimes Slashdot) starts forming around the news.It says "may intervene".
It is well known who the culprits are.
If the RIAA would not agree to that, then I would want my university to tell the RIAA to "take a hike" with its settlement letters.
I would not care one way or the other about getting the letter, because it's not as though the letters contain useful information. The letter is simply a shakedown.
Now we can't have that, can we?
Historically a detection by a copyright holder of a non-commercial infringement would be ignored, or at most would result in a cease and desist agreement, not a choice between (a) a federal copyright infringement lawsuit or (b) payment of thousands of dollars.
The RIAA will only be able to issue a subpoena if the Court grants an ex parte order authorizing it to issue subpoenas.
If the university brought applicable law to the judge's attention, or gave the students a chance to hire their own lawyers and fight the discovery application themselves, the orders would never issue.
See, e.g., Virginia decision and New Mexico decision.
Bringing lawsuits, and demanding thousands of dollars in settlement money, over such minor infringements, is unprecedented.
Also we don't know how many schools may have said no to the RIAA, our information on this is anecdotal. Only the RIAA knows for sure... and they're not telling.
As to your question whether the RIAA has ever won, the answer is, to the best of my knowledge, they have never won a fully contested case.
All bullies are cowards.
-they make money on the settlements
-they lose money on the default judgments and
-they lose a fortune on any case where someone fights back.
-based on insufficient evidence
-based on fabricated legal theories
-based on unconstitutional and shocking damages theories, and
-champertous, barratrous, and extortionate.
-Interscope v. Does 1-7 throwing out the RIAA's motion
-the article by Profs. Nesson and Palfrey telling the RIAA to take a hike
-Capitol v. Does 1-16 holding that it's impermissible for them to proceed ex parte and
-the article by Prof. Nesson and Wendy Seltzer urging Harvard to use its clinical legal programs to resist RIAA subpoenas and defend targeted students.