And based on your reply to my earlier question in which you referenced BMG v. Gonzales (thank you, by the way), it sounds like they took the cheap and easy way out on that as well.
If I understand correctly, they originally brought action against Gonzales for "making available" the 30 songs in question, but once she admitted to downloading them in the first place they stopped pursuing the "making available" claim and moved for summary judgment on the downloading since it was a sure thing.
No need to follow through with the original claim I guess, when they can grab the money and run. Correct. But that's one of their more rational decisions. If you can get an easy judgment for $22,500, why not go for it, rather than keep on pounding away to get an even larger judgment, when the defendant probably doesn't have 2 cents with which to satisfy any judgment?
Taking the easy route seems to be the RIAA legal team's MO. Another poster mentioned that a judge questioned their filing of a joint civil action against John Doe's 1-21, when a joint action can only be justified by evidence of conspiracy or collusion between the accused - the RIAA filed jointly to save themselves the money and aggravation of 21 separate filings, in spite of it's invalidity. You are exactly right. They take the cheap, easy way out. They don't care how many innocent people get snared in their "driftnet".
NewYorkCountryLawyer,
The Exhibits in Elektra v. Barker appear to be screenshots of file sharing software (and a list of infringing files compiled by an unknown party).
Surely, this can't be all the evidence that was presented in that case, can it?
Screenshots can be easily forged and do not necessarily identify the person using the file trading software. Is this the sole basis of their case? Of course that's not the only evidence they have. They have a few more easily forged, and obviously doctored, printouts which also do not identify the person using the file sharing software. See
transcript of deposition of Dr. Doug Jacobson and exhibits 6, 10, 11, 13, and 14 (exhibit 12 being the screenshot).
Have there been any cases yet where the RIAA has gone after someone for downloading copyrighted music, but not distributing it? Have they gone after anyone who was actually doing the copying, as opposed to doing the sharing?
If not, why not? Is it a matter of being more difficult to tell who has downloaded something, when it's much easier to find who is sharing something? Good questions.
In all cases they've "gone after" a person for 'making available for sharing' but also guessed, in their complaint, that the person was also "downloading".
In BMG v. Gonzalez the defendant admitted having downloaded 30 song files without authorization. The RIAA moved for summary judgment on the downloading only. The defendant's only defense was a claim of "fair use". Summary judgment was granted.
The reason the RIAA doesn't bring its cases based on downloading is that it doesn't know of any downloads and, by its cut-rate "investigation" methods, could never know of any downloads.
Thanks for the laugh! The attorneys for the RIAA goof it up before they even get started:
MR. OPPENHEIM: Good morning, your Honor.
THE COURT: Good afternoon.
MR. OPPENHEIM: Good afternoon, that's right.
Its as if they woke up on somebody's carpet, ran into a tailor's store, grabbed a suit, and walked in to sue someone, but that's to be expected from RIAA. Where's that quote from, Vegeta99?
The best place to learn about the RIAA's "making available" theory, and the arguments pro and con, is the case file in Elektra v. Barker. Be sure to read the transcript, in which the Judge skeptically questions the RIAA lawyer about it.
The quote is in the comments section of your blog. It's someone else's comment, not your own. Thanks, Nom. I knew it sounded familiar. Here's the source.
faster then NYCL;-)
texas it was
In re Cases Filed by Recording Companies, W.D. Texas, Austin Division (2004)
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/2004111 7_austin_severance_order.pdf Very good, Alter_Fritz. You're on top of things.
I don't distinctly remember which one it was, but I remember reading it.
Apparently a judge (most likely federal) told them that they *must* sue individuals and not large groups of people, unless those people were all involved in the alleged lawbreaking as a whole unit (ie. conspiracy) or a single occurance. Basically the judge told them they couldn't do this just because it was convenient for them. What it amounts to is that a single case with 21 "John Doe" persons = 1 filing fee (read; less money). But since each person's alleged infringement has no relation to the other's, they are *supposed* to file 21 separate cases (read: significantly more money).
Also, by doing it this way, it costs more money for the court to send out the proper notices to the participants. Money that they aren't getting from the RIAA.
*Money that we pay in our taxes.* You are right, dotHectate. There have been a number of such holdings but the leading one is Fonovisa v. Does 1-41
I have no idea where you got that quote from, but whoever wrote it is referring to Fonovisa v. Does 1-41, where the RIAA was ordered, in 2004, to cease and desist from the illegal practice of joining multiple John Does for its own convenience in a single case. The RIAA has been ignoring that order ever since. This Boston case is yet another example of the RIAA ignoring the Fonovisa v. Does order.
You are absolutely correct, nomadic. Those who say it's not a precedent do not understand how the common law system works.
Judges are looking for reasoning that helps them to resolve the case that is before them. When they find that another judge has thought these issues through carefully, and has fashioned an eminently sensible and just conclusion, they will usually go for it.
Of course it's easier for a judge if there's an appellate decision from his circuit telling him what he must do, but many, perhaps, most, litigated issues don't have the benefit of that kind of binding 'precedent'.... otherwise the issue would not even be in litigation. The lawyers would have read the binding precedent and followed it rather than frivolously ignore it.
I don't believe they're "sycophants". I believe they're paid PR trolls. Or it might be one troll using lots of user ID's.
Giving Mr. Oppenheim the benefit of the doubt, maybe he doesn't know about all of his clients' surreptitious activities. I'm sure they haven't shared with him all of the details of their payola-related activities, or their price fixing-related activities, either.
> Believe it or not, the architect and manager of the RIAA's terror campaign called me up several weeks ago to give me his personal assurance that the RIAA doesn't use trolls. (Ha, ha, ha).
Man, I'd love to know what prompted that conversation?:] Assuming it's not privileged or something.
And I'm glad to know that Slashdot is useful to you. BTW, I think there's also a post way up near the top of this story, buried in low-karma comments asking if there's anything that can be done for RIAA victims you might wish to respond to, too, if you have any ideas. Might be nice to have that on a permanent web page people can be pointed to if you've got any good ideas. I keep feeling like I'd like to do more, but I feel like I can't do much more than offer words of support or give my opinion on technical matters. Of course, that's why I'm so glad to see you organizing useful information on the RIAA's legal strategies to help anyone else who gets caught in the drift net. No it's not privileged. I don't even know why he called me, or why he thought it would have any special meaning to me to hear his voice personally. (His name is Matthew Oppenheim, by the way, and he is being very secretive about where he is employed at the moment.)
I have no idea what really prompted the phone call.
He claimed it was because someone brought to his attention that my blog, Recording Industry vs. The People, has a comment moderation policy which includes the following:
no RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate)
What is really needed is money. What these cases are all about is the economic imbalance. These are huge multinational corporations who think nothing of spending hundreds of thousands of dollars on any given case in order to crush the poor folks who are being victimized by these frivolous litigations.
While underestimating your opponent is always bad, so can overestimating them. Why would a company have thought out legal action any better than they think out IT infrastructure, employee health care, etc.? How many times have you seen a company completely blow a truly big decision before? Why assume the legal department is any better?
Don't forget that the RIAA isn't just using employee lawyers, they've hired litigation firms. And, just like any good contractor, those firms certainly have glossed over any pitfalls of their strategy in order to convince the RIAA to pay them lots of money to do what they do. And do you think the RIAA lawyer who rubber-stamped this process had the time and the background to realize that there might be something wrong with the way they were proceeding? How many data center managers and CIO's have you seen rubber-stamp a great IT idea that turned out to cost the company 10-times the original estimate, and result in lost productivity and higher maintenance costs? Why assume lawyers are any different? Certainly the RIAA lawyers have not done a good job for their clients. Their strategy decisions seem calculated to increase the total amount of legal fees expended, and nothing else.
E.g., in Capitol v. Foster, at a time when the defendant's attorneys fees totalled $55,000, and the judge was preparing to calculate how much of that was "reasonable", the RIAA served a raft of motions and other dilatory requests. The result of this boatload of litigation activity:
-in 2 1/2 months the RIAA's exposure leaped from $55k to $114k
-the judge issued a new decision attacking the RIAA lawyers' motives, veracity, and intellectual integrity, and
-the judge ordered the RIAA to turn over its own attorneys billing records, which will no doubt be described in detail in the judge's order.
I'm estimating the RIAA paid $100,000 for those "additional services".
Let us hope that my martial arts skills are sufficient to accomplish a win for the good guys. Probably they are not, standing alone, but more and more skillful lawyers are jumping into this fray, and we all help each other, and stand on each other's shoulders. Hopefully, together, we will prevail.
Having seen some of the legal maneuvers they've tried, I'd have to question whether they really have the best lawyers money can buy. I think the term "legal thugs" is more appropriate. Their lawyers are very good at intimidating the average person. Kind of like a Central Park mugger is very good at intimidating the average person. But that mugger is not a skilled fighter by any means. Just big and scary enough that the average person will hand over their wallet. Well said, MrNiceguy_KS.
I haven't seen anything from them in which one would normally take pride.
They misrepresent facts, fabricate the law, dishonor their promises, violate confidences. They make frivolous arguments, and they do not know how to negotiate or to compromise. All they know how to do is generate an endless stream of legal fees, and to increase the hatred that is felt by the public for their clients.
Perhaps it would be more accurate for him to have said the RIAA has "the best lawyers who can be bought with money to do anything their clients ask them to do" or "the best lawyers whose sole goal is to milk their clients for as much money as possible while accomplishing as little as possible for the money".
One correction. I always find Slashdot helpful. A little criticism doesn't faze me in the least. I'm a fighter.
Even finding out what the trolls are up to helps me understand the enemy better.
Believe it or not, the architect and manager of the RIAA's terror campaign called me up several weeks ago to give me his personal assurance that the RIAA doesn't use trolls. (Ha, ha, ha).
You, and others who have offered similar comments, are right that the record companies are to blame, and that it is important to name them so people will know whose music not to buy. The only reason I don't name each of the 5 or 6 plaintiffs in each case, in addition to the RIAA, is just laziness. I just don't have the time.
But it is not inaccurate to say the RIAA is bringing these cases; the RIAA is actually commencing and administering the lawsuits day-to-day. The record companies have nothing to do with it except on those rare occasions -- such as pretending for the Attorney General's sake that they do not know each other's prices in UMG v. Lindor -- where they have a strategic reason to pretend to be working independently of each other.
So when I say "RIAA" please accept it as shorthand for the litigation cartel of the "Big 4" record companies and their affiliated labels. And if you have the time to dig down into the court papers and supply the names of the culprits in any particular cases, please accept my sincere thanks for doing so.
Slashdot Mirror
In all cases they've "gone after" a person for 'making available for sharing' but also guessed, in their complaint, that the person was also "downloading".
In BMG v. Gonzalez the defendant admitted having downloaded 30 song files without authorization. The RIAA moved for summary judgment on the downloading only. The defendant's only defense was a claim of "fair use". Summary judgment was granted.
The reason the RIAA doesn't bring its cases based on downloading is that it doesn't know of any downloads and, by its cut-rate "investigation" methods, could never know of any downloads.
Sorry about that, Vegeta99..... I see that it was in the Elektra v. Barker transcript.
The best place to learn about the RIAA's "making available" theory, and the arguments pro and con, is the case file in Elektra v. Barker. Be sure to read the transcript, in which the Judge skeptically questions the RIAA lawyer about it.
I have no idea where you got that quote from, but whoever wrote it is referring to Fonovisa v. Does 1-41, where the RIAA was ordered, in 2004, to cease and desist from the illegal practice of joining multiple John Does for its own convenience in a single case. The RIAA has been ignoring that order ever since. This Boston case is yet another example of the RIAA ignoring the Fonovisa v. Does order.
You are absolutely correct, nomadic. Those who say it's not a precedent do not understand how the common law system works.
Judges are looking for reasoning that helps them to resolve the case that is before them. When they find that another judge has thought these issues through carefully, and has fashioned an eminently sensible and just conclusion, they will usually go for it.
Of course it's easier for a judge if there's an appellate decision from his circuit telling him what he must do, but many, perhaps, most, litigated issues don't have the benefit of that kind of binding 'precedent'.... otherwise the issue would not even be in litigation. The lawyers would have read the binding precedent and followed it rather than frivolously ignore it.
Well spoken, timeOday.
It was a classic contract of adhesion, and the decision is a very important precedent.
Thanks for the info.
I don't believe they're "sycophants". I believe they're paid PR trolls. Or it might be one troll using lots of user ID's.
Giving Mr. Oppenheim the benefit of the doubt, maybe he doesn't know about all of his clients' surreptitious activities. I'm sure they haven't shared with him all of the details of their payola-related activities, or their price fixing-related activities, either.
Nice to see it made front page news at the Tampa Tribune
I have no idea what really prompted the phone call.
He claimed it was because someone brought to his attention that my blog, Recording Industry vs. The People, has a comment moderation policy which includes the following: no RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate)
What the defendants need is money.
What is really needed is money. What these cases are all about is the economic imbalance. These are huge multinational corporations who think nothing of spending hundreds of thousands of dollars on any given case in order to crush the poor folks who are being victimized by these frivolous litigations.
E.g., in Capitol v. Foster, at a time when the defendant's attorneys fees totalled $55,000, and the judge was preparing to calculate how much of that was "reasonable", the RIAA served a raft of motions and other dilatory requests. The result of this boatload of litigation activity:
-in 2 1/2 months the RIAA's exposure leaped from $55k to $114k
-the judge issued a new decision attacking the RIAA lawyers' motives, veracity, and intellectual integrity, and
-the judge ordered the RIAA to turn over its own attorneys billing records, which will no doubt be described in detail in the judge's order.
I'm estimating the RIAA paid $100,000 for those "additional services".
You tell me if that was money well spent.
Let us hope that my martial arts skills are sufficient to accomplish a win for the good guys. Probably they are not, standing alone, but more and more skillful lawyers are jumping into this fray, and we all help each other, and stand on each other's shoulders. Hopefully, together, we will prevail.
I haven't seen anything from them in which one would normally take pride.
They misrepresent facts, fabricate the law, dishonor their promises, violate confidences. They make frivolous arguments, and they do not know how to negotiate or to compromise. All they know how to do is generate an endless stream of legal fees, and to increase the hatred that is felt by the public for their clients.
Perhaps it would be more accurate for him to have said the RIAA has "the best lawyers who can be bought with money to do anything their clients ask them to do" or "the best lawyers whose sole goal is to milk their clients for as much money as possible while accomplishing as little as possible for the money".
Dear Xenographic
Thank you very much for your kind words.
One correction. I always find Slashdot helpful. A little criticism doesn't faze me in the least. I'm a fighter.
Even finding out what the trolls are up to helps me understand the enemy better.
Believe it or not, the architect and manager of the RIAA's terror campaign called me up several weeks ago to give me his personal assurance that the RIAA doesn't use trolls. (Ha, ha, ha).
I think it could make an excellent movie on any scale.
Good post, Unknowing Fool.
By the way, she offered them the opportunity to examine her hard drive
before the lawsuit. They turned her down, and just sued her.
You, and others who have offered similar comments, are right that the record companies are to blame, and that it is important to name them so people will know whose music not to buy. The only reason I don't name each of the 5 or 6 plaintiffs in each case, in addition to the RIAA, is just laziness. I just don't have the time.
But it is not inaccurate to say the RIAA is bringing these cases; the RIAA is actually commencing and administering the lawsuits day-to-day. The record companies have nothing to do with it except on those rare occasions -- such as pretending for the Attorney General's sake that they do not know each other's prices in UMG v. Lindor -- where they have a strategic reason to pretend to be working independently of each other.
So when I say "RIAA" please accept it as shorthand for the litigation cartel of the "Big 4" record companies and their affiliated labels. And if you have the time to dig down into the court papers and supply the names of the culprits in any particular cases, please accept my sincere thanks for doing so.