1. I think it's quite relevant that they have not offered any amnesty for 3 years, and have instead embarked on a "sue-em-all" campaign calculated to strike fear into people's hearts. Why is it not relevant that something which you mentioned as though it were in existence was in fact abandoned 3 years ago? And relevant to whom? I'm sure it would be relevant to anyone who read your post and was wondering how to sign up for this long ago abandoned program. Let others be the judge of the relevance of your post, which was not presented as evidence that the RIAA long ago had, and then promptly abandoned, an "amnesty" program.
2. Can you offer any evidence that this program was in fact "wide spread" or is that surmise on your part?
3. It's not at all clear that the "actions" to be prevented are "illegal". For example, do you have any legal authority for the proposition that having a shared files folder with copyrighted song files in it is "illegal"?
Have Blue said "Last time I checked fair use didn't protect what these alleged pirates are doing."
The RIAA hasn't alleged, and couldn't allege, piracy in these cases. These cases have nothing to do with piracy. They have to do with having a shared files folder on a computer.
Rayin says: "The RIAA, as the copyright holder for much of American music (most likely, we can assume, they hold the copyrights on the music that the children downloaded), has the right to choose who they want to sue, and who they don't want to sue.
1. They don't own copyrights on the music, just the recordings. Other people own the copyrights on the music.
2. Not every copyright infringement warrants a lawsuit. These people should be given the opportunity to enter into cease and desist agreements to avoid lawsuits.
The RIAA's lawsuits against end users are not based on "uploading". They have no evidence of any uploads. Their lawsuits are based upon their concept that it is a copyright infringement to have files which are "available" for uploading. See Elektra v. Barker, scheduled for oral argument on January 26, 2007. (See Slashdot discussion)
Isn't that from 3 years ago? I didn't think they have that program in effect anymore. Can you tell me where on their web site they have a link to that *pdf?
I'm sorry that you feel that having an actual lawyer who is actually working on these cases, who can report to Slashdot readers with first hand information and analysis as to what is going on in these litigations, is not worthwhile, just because he cannot share with you his innermost thoughts and confidential legal strategies in advance of their being implemented in the litigation.
And I'm sorry you fault me for pointing out that there are many different types of file sharing behaviors, rather than just one, as the post to which I was responding had suggested. And if you know which ones are "clearly legal" and which are not, you are pretty good, since there is not a single lawyer in the country who can say that, since not a single contested case has been decided regarding any of them, except for the partially contested case of BMG v. Gonzalez, in which a defendant admitted to downloading and making copies of 30 song files, arguing that it was a "fair use" to do so, and the Court disagreed with the defendant's "fair use" assessment.
Lawyers have a bad press. In fact there are good people in the profession and bad people in the profession.
One thing I wonder about with the RIAA lawyers, when they are at a cocktail party and someone asks them what kind of law they practice, what do they say?
"I sue children, disabled people, dead people, working people, people on welfare, grandmothers, people on social security, people on disability, the working poor, students, and regular middle class people, for copyright infringements they didn't know they were committing, based upon a theory of copyright infringement no one has ever seen before."
Do you actually win those cases?
"No, but we wear people down because our clients have an endless amount of money to spend, and the people we are suing usually don't."
Do you find this kind of work satisfying?
"Yes I do, it brings me back to my childhood, when I was being beaten up by the schoolyard bully, wondering how I could take my revenge. Now I have found the way.... I have become the schoolyard bully, except that I can cause more harm, fear, and humiliation than he ever did."
And does this type of work pay well?
"Yes it does, until, that is, our clients fire us in favor of an even more vicious law firm, at which time we'll have a pretty difficult time finding replacement work, in view of the lack of esteem in which we are held throughout the profession."
shark72 writes in response to "She's in trouble for "Making available"?" as follows:
"Not quite -- for making unauthorized copies available. It's just two words, but an important distinction."
Actually, shark, you're giving the RIAA too much credit. Had every single one of the songs been an authorized copy, as for example one purchased lawfully from iTunes or a similar entity, the RIAA would still be pursuing its suit against her. The Hotaling case dealt with unauthorized copies. The RIAA, however, does not know or care whether the copies are authorized or not. Its theory is that by having the files in a shared files folder you are a "distributor".
Its theory is nonsense, of course, as I expect Judge Karas has figured out.
Please check out my response to honkycat. I'm not really talking about affirmative defenses, now, such as fair use, waiver, estoppel, unconstitutional damages, etc. I'm talking about plaintiff's prima facie case of copyright infringement. Some types of 'sharing' might be copyright infringement. Other types definitely are not. When we get into trials, and post-discovery summary judgment motions, I am predicting the distinctions among the different types of sharing behavior will be very important.
1. Yes I do, but I'm actually a practicing lawyer defending these cases: it would be foolish of me to publicly post my arguments before I've put them in play in actual litigations. There's nothing to be gained by tipping my hand.
2. You can assume, if you like, which of the multitude of possibilities he was talking about, but I was clarifying an error in the logic of the statement. He was speaking as though there were one kind of file sharing behavior, when in fact there are a multiplicity. I predict that the distinctions among them will be quite important as these cases wind their way through the courts.
FreakyLefty wrote: "Thanks. Not being American I wasn't sure if I'd missed something in your justice system. Civility on Slashdot. Whatever is the world coming to?"
The American justice system used to be characterized by quite a bit of civility, sometimes to the consternation of clients who wanted a 'pound of flesh'.
That was before a new breed of lawyers came along who will do anything their client tells them to.
hey! writes: "There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use."
1. I disagree that there are only 3 logical arguments.
2. Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors involving copyrighted recordings, just as there are a great multiplicity of different kinds of song and record sharing behaviors involving physical copies of phonorecords, cd's, dvd's, cassette tapes, and the like.... some of which might be copyright violations, some of which certainly aren't.
3. If you are arguing that downloading a copy of a copyrighted work through p2p sharing, without a license to do so, for the purpose of obtaining a copy of your own, is a "fair use", I should tell you that I am aware of one case where I think it is fair to say that a similar argument was rejected. BMG v. Gonzalez.
In a "statement of interest" the US has to say why it has "an interest" in the case. DOJ said the reason it had an interest in the argument EFF was making -- that ephemeral transmissions could never implicate the "distribution" right as opposed to reproduction and performance rights -- was that it if accepted it could jeopardize ~100 former prosecutions and ~100 pending prosecutions of "pirates". The argument EFF was making was not related to the "making available" claim advanced by the RIAA, and the US was just making it clear that the only issue they were addressing or "interested" in was EFF's argument, an argument which the defendant -- Ms. Barker -- had not made and did not feel was necessary for the Court to reach.
It's my mistake. Sorry about that. Don't blame Slashdot. I used 2 different abbreviations for the same thing. DOJ (US Dept of Justice) = USDJ (US Dept of Justice).
It is extremely weird that the US government would intervene in a private copyright dispute.
But take comfort in this:
The DOJ did NOT support the "making available" argument at all; it expressly distanced itself from that argument on page 5, in footnote 3, indicating that it has NEVER prosecuted someone for "making available".
So you think it's an effective use of my time to (a) debate with you and every Slashdotter who thinks he knows more about copyright law than I do, and (b)sit around checking each's "full post history"? I suppose you are aware that that would consume my entire life.
I participate in Slashdot to impart information to people who are willing to learn. I am also delighted to learn from people who have information to impart. I've been researching copyright law for 32 years, and have been in the trenches every day for more than a year and a half in this RIAA v. Consumer battle. So I think I have something to contribute.
I am not here to win over every anonymous user ID that happens to be trying to engage me.
I am certain that there are a goodly number of user ID's that are RIAA trolls. I use the foe designation to remind myself of those whom I consider potential RIAA trolls, and also "others with whom I cannot engage in meaningful dialogue". Sometimes I use it for someone who is obviously a far right wing nut, or someone who is highly opinionated and overly argumentative but never backs up their arguments with information. It is just a waste of time for me to talk to those people, so I mark them as foes and set up my comments preferences so I don't have to waste my time reading their stuff.
I would never designate someone as a "foe" just because they disagreed with me, if they could substantiate their arguments with something real.
I don't mean to insult anyone with the "foe" designation; I consider it a failing of Slashdot that it does not have a private, personal means -- for each user's own personal reference -- to designate those Slashdotters with whom he does not want to get involved.
As far as "defending" my statements, I support my statements with information based on (a) documented litigation events, and (b) my year and a half of daily experience fighting the RIAA war. That's a lot more than you do.
I'll let you have the last word. It must be nice to have attained perfection, so that you don't need to listen to, or learn from, anyone else, ever again.
Lawyers couldn't do that because you can't give cookie cutter advice for everybody; legal advice basically has to be tailored to the needs of a particular individual. Each person's situation is different.
I'd like to see how you would like it if you worked in a prestigious law firm, and some strange lawyer called your employer and insinuated to him, without any basis for doing so, that (a) you were a copyright pirate, and (b) you were trying to evade service of process. I wonder if you'd be engaged in sophistic hairsplitting over the terminology of what to call such a thing.
Slashdot Mirror
1. I think it's quite relevant that they have not offered any amnesty for 3 years, and have instead embarked on a "sue-em-all" campaign calculated to strike fear into people's hearts. Why is it not relevant that something which you mentioned as though it were in existence was in fact abandoned 3 years ago? And relevant to whom? I'm sure it would be relevant to anyone who read your post and was wondering how to sign up for this long ago abandoned program. Let others be the judge of the relevance of your post, which was not presented as evidence that the RIAA long ago had, and then promptly abandoned, an "amnesty" program.
2. Can you offer any evidence that this program was in fact "wide spread" or is that surmise on your part?
3. It's not at all clear that the "actions" to be prevented are "illegal". For example, do you have any legal authority for the proposition that having a shared files folder with copyrighted song files in it is "illegal"?
Have Blue said "Last time I checked fair use didn't protect what these alleged pirates are doing."
The RIAA hasn't alleged, and couldn't allege, piracy in these cases. These cases have nothing to do with piracy. They have to do with having a shared files folder on a computer.
Rayin says: "The RIAA, as the copyright holder for much of American music (most likely, we can assume, they hold the copyrights on the music that the children downloaded), has the right to choose who they want to sue, and who they don't want to sue.
1. They don't own copyrights on the music, just the recordings. Other people own the copyrights on the music.
2. Not every copyright infringement warrants a lawsuit. These people should be given the opportunity to enter into cease and desist agreements to avoid lawsuits.
The RIAA's lawsuits against end users are not based on "uploading". They have no evidence of any uploads. Their lawsuits are based upon their concept that it is a copyright infringement to have files which are "available" for uploading. See Elektra v. Barker, scheduled for oral argument on January 26, 2007. (See Slashdot discussion)
The "Clean Slate Program" is no longer in effect.
http://www.riaa.com/issues/cleanSlate.asp
Isn't that from 3 years ago? I didn't think they have that program in effect anymore. Can you tell me where on their web site they have a link to that *pdf?
I'm sorry that you feel that having an actual lawyer who is actually working on these cases, who can report to Slashdot readers with first hand information and analysis as to what is going on in these litigations, is not worthwhile, just because he cannot share with you his innermost thoughts and confidential legal strategies in advance of their being implemented in the litigation.
And I'm sorry you fault me for pointing out that there are many different types of file sharing behaviors, rather than just one, as the post to which I was responding had suggested. And if you know which ones are "clearly legal" and which are not, you are pretty good, since there is not a single lawyer in the country who can say that, since not a single contested case has been decided regarding any of them, except for the partially contested case of BMG v. Gonzalez, in which a defendant admitted to downloading and making copies of 30 song files, arguing that it was a "fair use" to do so, and the Court disagreed with the defendant's "fair use" assessment.
Lawyers have a bad press. In fact there are good people in the profession and bad people in the profession.
One thing I wonder about with the RIAA lawyers, when they are at a cocktail party and someone asks them what kind of law they practice, what do they say?
"I sue children, disabled people, dead people, working people, people on welfare, grandmothers, people on social security, people on disability, the working poor, students, and regular middle class people, for copyright infringements they didn't know they were committing, based upon a theory of copyright infringement no one has ever seen before."
Do you actually win those cases?
"No, but we wear people down because our clients have an endless amount of money to spend, and the people we are suing usually don't."
Do you find this kind of work satisfying?
"Yes I do, it brings me back to my childhood, when I was being beaten up by the schoolyard bully, wondering how I could take my revenge. Now I have found the way.... I have become the schoolyard bully, except that I can cause more harm, fear, and humiliation than he ever did."
And does this type of work pay well?
"Yes it does, until, that is, our clients fire us in favor of an even more vicious law firm, at which time we'll have a pretty difficult time finding replacement work, in view of the lack of esteem in which we are held throughout the profession."
shark72 writes in response to "She's in trouble for "Making available"?" as follows:
"Not quite -- for making unauthorized copies available. It's just two words, but an important distinction."
Actually, shark, you're giving the RIAA too much credit. Had every single one of the songs been an authorized copy, as for example one purchased lawfully from iTunes or a similar entity, the RIAA would still be pursuing its suit against her. The Hotaling case dealt with unauthorized copies. The RIAA, however, does not know or care whether the copies are authorized or not. Its theory is that by having the files in a shared files folder you are a "distributor".
Its theory is nonsense, of course, as I expect Judge Karas has figured out.
Please check out my response to honkycat. I'm not really talking about affirmative defenses, now, such as fair use, waiver, estoppel, unconstitutional damages, etc. I'm talking about plaintiff's prima facie case of copyright infringement. Some types of 'sharing' might be copyright infringement. Other types definitely are not. When we get into trials, and post-discovery summary judgment motions, I am predicting the distinctions among the different types of sharing behavior will be very important.
1. Yes I do, but I'm actually a practicing lawyer defending these cases: it would be foolish of me to publicly post my arguments before I've put them in play in actual litigations. There's nothing to be gained by tipping my hand.
2. You can assume, if you like, which of the multitude of possibilities he was talking about, but I was clarifying an error in the logic of the statement. He was speaking as though there were one kind of file sharing behavior, when in fact there are a multiplicity. I predict that the distinctions among them will be quite important as these cases wind their way through the courts.
FreakyLefty wrote: "Thanks. Not being American I wasn't sure if I'd missed something in your justice system. Civility on Slashdot. Whatever is the world coming to?"
The American justice system used to be characterized by quite a bit of civility, sometimes to the consternation of clients who wanted a 'pound of flesh'.
That was before a new breed of lawyers came along who will do anything their client tells them to.
hey! writes: "There are only three logically possible ways to argue that P2P sharing is not a copyright violation. The first and best would be to argue that P2P downloading is not a copyright violation at all, but somehow falls under the heading of fair use."
1. I disagree that there are only 3 logical arguments.
2. Additionally, your statement fails to take into account the fact that there are a great multiplicity of different kinds of "P2P sharing" behaviors involving copyrighted recordings, just as there are a great multiplicity of different kinds of song and record sharing behaviors involving physical copies of phonorecords, cd's, dvd's, cassette tapes, and the like.... some of which might be copyright violations, some of which certainly aren't.
3. If you are arguing that downloading a copy of a copyrighted work through p2p sharing, without a license to do so, for the purpose of obtaining a copy of your own, is a "fair use", I should tell you that I am aware of one case where I think it is fair to say that a similar argument was rejected. BMG v. Gonzalez.
That's about it. The RIAA argues yes. You made them available. That makes you a distributor.
If they would read the statute (copyright Act section 106) they'd feel differently, but they don't feel they have to do stuff like that.
In a "statement of interest" the US has to say why it has "an interest" in the case. DOJ said the reason it had an interest in the argument EFF was making -- that ephemeral transmissions could never implicate the "distribution" right as opposed to reproduction and performance rights -- was that it if accepted it could jeopardize ~100 former prosecutions and ~100 pending prosecutions of "pirates". The argument EFF was making was not related to the "making available" claim advanced by the RIAA, and the US was just making it clear that the only issue they were addressing or "interested" in was EFF's argument, an argument which the defendant -- Ms. Barker -- had not made and did not feel was necessary for the Court to reach.
It's my mistake. Sorry about that. Don't blame Slashdot. I used 2 different abbreviations for the same thing. DOJ (US Dept of Justice) = USDJ (US Dept of Justice).
It is extremely weird that the US government would intervene in a private copyright dispute.
But take comfort in this:
The DOJ did NOT support the "making available" argument at all; it expressly distanced itself from that argument on page 5, in footnote 3, indicating that it has NEVER prosecuted someone for "making available".
Why don't you name a fact that I distorted?
So you think it's an effective use of my time to (a) debate with you and every Slashdotter who thinks he knows more about copyright law than I do, and (b)sit around checking each's "full post history"? I suppose you are aware that that would consume my entire life.
I participate in Slashdot to impart information to people who are willing to learn. I am also delighted to learn from people who have information to impart. I've been researching copyright law for 32 years, and have been in the trenches every day for more than a year and a half in this RIAA v. Consumer battle. So I think I have something to contribute.
I am not here to win over every anonymous user ID that happens to be trying to engage me.
I am certain that there are a goodly number of user ID's that are RIAA trolls. I use the foe designation to remind myself of those whom I consider potential RIAA trolls, and also "others with whom I cannot engage in meaningful dialogue". Sometimes I use it for someone who is obviously a far right wing nut, or someone who is highly opinionated and overly argumentative but never backs up their arguments with information. It is just a waste of time for me to talk to those people, so I mark them as foes and set up my comments preferences so I don't have to waste my time reading their stuff.
I would never designate someone as a "foe" just because they disagreed with me, if they could substantiate their arguments with something real.
I don't mean to insult anyone with the "foe" designation; I consider it a failing of Slashdot that it does not have a private, personal means -- for each user's own personal reference -- to designate those Slashdotters with whom he does not want to get involved.
As far as "defending" my statements, I support my statements with information based on (a) documented litigation events, and (b) my year and a half of daily experience fighting the RIAA war. That's a lot more than you do.
4 companies are doing all the litigation.
3 of those 4 are foreign companies.
I'll let you have the last word. It must be nice to have attained perfection, so that you don't need to listen to, or learn from, anyone else, ever again.
Well my blog and web site are chock full of information about the cases, and provide hundreds of samples of different types of litigation documents that have been used:
http://info.riaalawsuits.us/howriaa.htm
http://info.riaalawsuits.us/documents.htm
Lawyers couldn't do that because you can't give cookie cutter advice for everybody; legal advice basically has to be tailored to the needs of a particular individual. Each person's situation is different.
Then they're not "pirates". "Copyright piracy" means making exact copies and selling them for profit.
I'd like to see how you would like it if you worked in a prestigious law firm, and some strange lawyer called your employer and insinuated to him, without any basis for doing so, that (a) you were a copyright pirate, and (b) you were trying to evade service of process. I wonder if you'd be engaged in sophistic hairsplitting over the terminology of what to call such a thing.