Sorry if I left out some details. I'm under a lot of time pressure. I don't make a living from writing blogs, posts, and comments. I have to spend at least some time doing legal work too.
It's a case against a woman with Multiple Sclerosis who's never even heard of file sharing until the RIAA came after her. She just uses her computer to communicate with people by email. The RIAA knows this, but doesn't care.
The judge in Foster decided that Ms. Foster is eligible for attorneys fees, and invited her to make an attorneys fees motion. The attorneys fee motion has not yet been decided.
If you read the record carefully you will see that we offered to withdraw the counterclaim if the RIAA could show us legal authority for their position that the counterclaim was improper, specifically saying to them "I certainly wouldn't want to get into motion practice over a mere formality." They could find no such authority, and never even got back to us, but simply went ahead with their motion. That sounds like frivolous litigation to me.
As to your comment that we should have made a Rule 11 motion, that can be done at any time in the case, and one that may not be necessary, since the Copyright Act gives Ms. Schwartz a right to attorneys fees, on a much lesser showing than would be needed under Rule 11. Rule 11 motions should never be undertaken lightly.
If you're really a first year law student, please don't -- when you get out there -- practice law like these guys do.
The EFF/ACLU/Public Citizen brief attached to the counterclaim makes it pretty clear why so many innocent and helpless people are being caught up in the RIAA's "driftnet". It's certainly reckless enough to be equated with "deliberate".
But see Capitol v. Foster, where the judge held that the RIAA could not immunize itself from liability for attorneys fees by dropping the case, after first tying the woman up in frivolous litigation for a year and a half.
I didn't realize you were asking about the MySpace case in particular. I thought you were talking about the RIAA v. Consumer cases. I do not know anything about the lawyers handling the MySpace case, so my opinions of the RIAA's lawyers should not be extended to them, unless they happen to be the same lawyers, which I doubt.
1. It's all 4 majors. UMG no more or less than the others.
2. I don't know how they bubble up... I just know that they are targeting the wrong people.
3. It's the RIAA's lawyers, not UMG's lawyers, who are involved, and it's not the lawyers that are controlling it, it's the RIAA. The lawyers on this case are attack dogs. They attack who they're told to attack, and don't stand up to their clients at all. Good lawyers don't just follow orders. These lawyers just follow orders. I don't know how they live with themselves, suing children, disabled people, people who never used computers, people on welfare, students. It's unbelievable.
4. What do they think they're accomplishing? I'm sure it's not the revenue stream; they lose money on litigated cases; they lose money on default judgments; and they make a little money on the settlements, just enough to cover the costs of their campaign. I'm convinced that their actual goal is something they don't mention publicly -- to try to monopolize the online digital music field. (See, e.g. counterclaims in Arista v. LimeWire. I don't think they will accomplish their goal, and I think that their litigation campaign is actually increasing, rather than diminishing, their competition, as they've succeeded in creating a whole new breed of music consumer -- those specifically looking for non-RIAA music. See my growing list of sources for non-RIAA music, which I call Liberated Music.
Why should you worry? It's in a good court. There will be good lawyers representing My Space. They will have all the time and all the resources to make a good argument. No reason to think we will wind up with anything other than a sensible result and sensible rulings.
At least this one will be a battle of equals. One corporate titan against another. The interesting copyright issues that need to be decided here can be fully briefed on a full and complete record. That is a plus.
Jury nullification is not needed. All that is needed is a fair trial. In most of the cases.... the RIAA does not have a case. No reason in the world to think the jurors will be biased towards the RIAA.
The juries in these cases will be very pro-defendant. Which is why you're not hearing about a lot of jury trials. It's not the RIAA's style to let it get to that.
On the contrary. Kazaa has no case against him. But he has a case against Kazaa for getting him into this pickle. See discussion by judge in Interscope v. Duty at Section C, pages 4-5.
As far as I know, the score as of today in contested cases is 0-0.
The RIAA hasn't won any contested case.
No defendant has won a contested case either.
No contested case of which I am aware has been seen through to conclusion yet.
(By "contested case" I mean a case in which the defendant (a) denies having done what the RIAA claims he or she did, and (b) is fighting back and not defaulting.).
There are probably cases out there that I don't know about. If you hear of any, please let me know.
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Sorry if I left out some details. I'm under a lot of time pressure. I don't make a living from writing blogs, posts, and comments. I have to spend at least some time doing legal work too.
It's a case against a woman with Multiple Sclerosis who's never even heard of file sharing until the RIAA came after her. She just uses her computer to communicate with people by email. The RIAA knows this, but doesn't care.
No. Actually, they're not.
The judge in Foster decided that Ms. Foster is eligible for attorneys fees, and invited her to make an attorneys fees motion. The attorneys fee motion has not yet been decided.
If you read the record carefully you will see that we offered to withdraw the counterclaim if the RIAA could show us legal authority for their position that the counterclaim was improper, specifically saying to them "I certainly wouldn't want to get into motion practice over a mere formality." They could find no such authority, and never even got back to us, but simply went ahead with their motion. That sounds like frivolous litigation to me.
As to your comment that we should have made a Rule 11 motion, that can be done at any time in the case, and one that may not be necessary, since the Copyright Act gives Ms. Schwartz a right to attorneys fees, on a much lesser showing than would be needed under Rule 11. Rule 11 motions should never be undertaken lightly.
If you're really a first year law student, please don't -- when you get out there -- practice law like these guys do.
Only thing, this lady never even heard of file sharing before the RIAA sued her for it.
The EFF/ACLU/Public Citizen brief attached to the counterclaim makes it pretty clear why so many innocent and helpless people are being caught up in the RIAA's "driftnet". It's certainly reckless enough to be equated with "deliberate".
But see Capitol v. Foster, where the judge held that the RIAA could not immunize itself from liability for attorneys fees by dropping the case, after first tying the woman up in frivolous litigation for a year and a half.
Only problem. How do you know the defendant uploaded even one song?
I didn't realize you were asking about the MySpace case in particular. I thought you were talking about the RIAA v. Consumer cases. I do not know anything about the lawyers handling the MySpace case, so my opinions of the RIAA's lawyers should not be extended to them, unless they happen to be the same lawyers, which I doubt.
1. It's all 4 majors. UMG no more or less than the others.
2. I don't know how they bubble up... I just know that they are targeting the wrong people.
3. It's the RIAA's lawyers, not UMG's lawyers, who are involved, and it's not the lawyers that are controlling it, it's the RIAA. The lawyers on this case are attack dogs. They attack who they're told to attack, and don't stand up to their clients at all. Good lawyers don't just follow orders. These lawyers just follow orders. I don't know how they live with themselves, suing children, disabled people, people who never used computers, people on welfare, students. It's unbelievable.
4. What do they think they're accomplishing? I'm sure it's not the revenue stream; they lose money on litigated cases; they lose money on default judgments; and they make a little money on the settlements, just enough to cover the costs of their campaign. I'm convinced that their actual goal is something they don't mention publicly -- to try to monopolize the online digital music field. (See, e.g. counterclaims in Arista v. LimeWire. I don't think they will accomplish their goal, and I think that their litigation campaign is actually increasing, rather than diminishing, their competition, as they've succeeded in creating a whole new breed of music consumer -- those specifically looking for non-RIAA music. See my growing list of sources for non-RIAA music, which I call Liberated Music.
The Wilke case was neither won nor lost; it was withdrawn.
Why should you worry? It's in a good court. There will be good lawyers representing My Space. They will have all the time and all the resources to make a good argument. No reason to think we will wind up with anything other than a sensible result and sensible rulings.
The issue is very fully briefed, including amicus briefs, etc. in Elektra v. Barker, now pending before Judge Kenneth Karas in SDNY.
1. Actual damages = wholesale price of 70 cents
2. 4 x 70 cents = $2.80
3. Quadruple damages is enough punishment
The RIAA argues that merely "making available for distribution" is in and of itself a copyright infringement. I disagree.
At least this one will be a battle of equals. One corporate titan against another. The interesting copyright issues that need to be decided here can be fully briefed on a full and complete record. That is a plus.
Jury nullification is not needed. All that is needed is a fair trial. In most of the cases.... the RIAA does not have a case. No reason in the world to think the jurors will be biased towards the RIAA.
The juries in these cases will be very pro-defendant. Which is why you're not hearing about a lot of jury trials. It's not the RIAA's style to let it get to that.
On the contrary. Kazaa has no case against him. But he has a case against Kazaa for getting him into this pickle. See discussion by judge in Interscope v. Duty at Section C, pages 4-5.
Good thinking. Here is an excellent law review article which agrees with you.
As far as I know, the score as of today in contested cases is 0-0.
The RIAA hasn't won any contested case.
No defendant has won a contested case either.
No contested case of which I am aware has been seen through to conclusion yet.
(By "contested case" I mean a case in which the defendant (a) denies having done what the RIAA claims he or she did, and (b) is fighting back and not defaulting.).
There are probably cases out there that I don't know about. If you hear of any, please let me know.
The claim against Kazaa was for inducing others to infringe plaintiffs' copyrights.
I agree with you that the complaints are defective.
They're all the same by the way, all 20,000 of them.
So far though 6 out of 6 judges have said that this vague complaint is ok for the first round.
We're still waiting for judge number 7, Judge Karas, in Elektra v. Barker.
Just for the record, the document is called an "answer", not an "answering statement".
A win on either defense would probably put the RIAA litigation juggernaut out of business.