I really don't understand your first paragraph at all. The ACLU is an organization with a long history of fighting for civil liberties. Why would you slam them because once in a blue moon they actually get paid a small portion of the expenses involved in their work, instead of the money having to come from their contributors? And why is it wrong for someone who is proved to have violated someone else's civil rights to have to pay all or part of their attorneys fees in vindicating their rights? And why is it wrong for our laws to occasionally shift the attorneys fees to the guilty party, in order to give legal aid lawyers, litigants, and others an incentive to take on a cause where the other side has much more money? Attorneys fees statutes are equalizers between big and small, which is what our country -- and our courts -- are supposed to be about. Contingent fees, and fee-shifting statutes, are the one small exception, one small dent in the rule which otherwised prevails more often than not in the U.S.: whoever has the most money has the best chance of winning in court. I.e., they are a step up from the law of the jungle, that might makes right. Would you have us step down? If not, you shouldn't slam them for fighting the good fight and once in a while getting a little bit of their fees paid back.
Recently, when I appeared in court in Warner v. Does 1-149 in Manhattan, Judge Owen said, in words or substance, "so they want to find out this person's name and address so they can take his deposition, what's wrong that?" I responded, in words or substance, "No, judge, that's not what they're going to do. They don't want to take this person's deposition. They are going to sue these people, bring lawsuits that wreck people's lives." The judge then said to me "what are you talking about, wreck people's lives?" I proceeded to tell him how these lawsuits affect the poor people that are targeted, and he cut me off, did not allow me to finish, and said that because I used the term "wreck people's lives" he wouldn't believe anything further I could say.
It was therefore quite gratifying to me personally to read the following passage in the amicus brief:
This is an important case. While it may appear to many as just one woman
defending herself against several large corporate copyright plaintiffs, as the court
is undoubtedly aware, this lawsuit is but one battle in the broader war the RIAA
is waging against unauthorized internet copying. As a result of this war, the RIAA
has wrought havoc on the lives of many innocent Americans who, like Deborah
Foster, have been wrongfully prosecuted for illegal acts they did not commit for
over a year despite their clear innocence and persistent denials. Using
questionable methods and suspect evidence, the RIAA has targeted thousands of
ordinary people around the country, including grandmothers, grandfathers,
single mothers, and teenagers. In its broad dragnet of litigation, the RIAA has
knowingly entangled the innocent along with the guilty, dragging them through
an expensive and emotionally draining process of trying to clear their names.
1. The complaint charges them with "downloading, distributing, and/or making available for distribution". In fact the RIAA has no evidence at all of downloading or distributing when they commence the case.
2. I am not aware of any criminal cases. The cases I am aware of are all civil cases, for money damages and an injunction.
3. There is huge potential for mistakes. Their investigation is bogus, and they have no idea when they sue someone if that person has committed any act of copyright infringement whatsoever.
4. Defendants don't need an "excuse" for why someone else might have used their internet access account to commit a copyright infringement, although the RIAA would like you to think otherwise. Take a look at the papers being filed during the next few days in Capitol v. Foster, in Oklahoma, for a discussion of the RIAA's tactics in trying to make people think that parents are liable for their childrens' copyright infringement.
In America, the "American rule" prevails, which is that each party normally bears their own attorneys fees. The exceptions are (a) a statute which provides otherwise, and (b) a contract which provides otherwise. The Copyright Act constitutes such an exception.
Unfortunately, there really aren't any good options.
1. Pay an extortionate settlement.
2. Represent yourself which is hard and stressful and not the best way to defend a case.
3. Pay lots of money to a lawyer and pray you might get some of your attorneys fees back at the end.
Normal options, like reasoning with the other side and getting them to go away, or to take a reasonable settlement, don't work here.
I was hoping to be able to knock out the cases at the John Doe stage, but the 3 motions we made in Manhattan federal court were all denied.
I am hoping that we can get dismissals of the complaint at an early stage, but so far, of the 7 dismissal motions I know of, 5 have been denied, and 2 are pending. If the 2 pending motions are denied, it will be a pretty uncomfortable posture to try to get these knocked out early stage, at least until we get to an appellate court, which would be a year or more away since denials of dismissal motions are not appealable.
I wish I could give people a good option, but I don't know of any. I'm hoping for one to come along.
Dismissing it all as "babble" may sound like fun, but it's babble that affects people's lives, so we should all try to understand it. And I think reading the judges' "babble" -- rather than reading others babbling on about it -- is the best way to understand what is really going on.
In this particular area, sophisticated tech people who read the judges' decisions are immediately aware that the judges don't know what they're talking about, and that the RIAA lawyers are deliberately trying to play on that and confuse the judges. And sophisticated tech people are also aware that the judges' rulings, if they buy into what the RIAA's lawyers are arguing, can imperil the entire internet, in areas that go far beyond the subject of music file sharing.
Which to me says that the tech community needs to connect their babble to the babble of the good guys in the legal community, and work together, to make the truth understood to the judges, before it's too late.
So you can babble on about the lawyers creating the babble, but you should recognize that there are some lawyers trying to cut through the babble and help get the truth out, and you should be helping them rather than lumping all lawyers together.
That's right,digitrev. In Canada and the Netherlands they recognized that the RIAA's "investigation" was fake and felt the evidence wasn't sufficient to warrant giving out confidential information.
In the U.S. they seem to have rubberstamped the RIAA tactics.
Although I wonder if there's some judge out there who laughed them out of court.... but hasn't been heard from because the case was ex parte.
Personally, I think (a) the people at Slashdot are a pretty intelligent lot, and (b) the best things for them to read are not what a commentator has to say, but the actual court records.
I have seen some spirited, high-level debates in these pages where people cite to different parts of different litigation documents.
That is why my site is the way it is; it is information, not entertainment. The key elements are (a) the index of litigation documents; (b) the directory of lawyers who are fighting the RIAA; and (c) the posts highlighting significant level events. The post, How the RIAA Litigation Process Works, which Grant Robertson describes as being as 'dry as a bread sandwich', is merely intended to be an accurate summary of what is going on out there, not a substitute for informing onesself and forming one's own opinions. (I hope punkr0x is right, that it is not quite as poorly written as Grant makes it out to be.).
My site is intended to serve the following readers: (a) people who are being targeted by the RIAA; (b) lawyers who are representing or would like to represent these folks; (c) journalists looking for primary rather than secondary sources; and (d) other intelligent people, lawyers and nonlawyers alike, who want to understand what is happening here, and who don't need to be told what to think.
I think the 'laymen' at Slashdot are pretty good readers.
Under the Copyright Act, the prevailing party may be awarded attorneys fees. In Capitol Records v. Foster, the defendant has made a motion for her attorneys fees.
If I may be forgiven for answering my own question, I've obtained, and posted, a copy of the complaint. It accuses Lime Wire of fostering copyright infringement by discouraging what it termed "freeloaders".
If you read this, you'll get it. The trade associations for the computer and internet industries explained it eloquently. Your analogy is right on the money, so maybe you do get it. Your disbelief that that could be the law is lovely, but if you read the Fonovisa decision, you should get it: this is really happening. This is really the law if it doesn't get shot down in the courts.
Lest you continue to think what I said, about how the RIAA is rewriting copyright law in such a way as to destroy the internet as we know it, is "hyperbole", why don't you read the court's decision in Fonovisa v. Alvarez, which came down just the other day?
There you will see the kind of nonsense the RIAA is feeding judges who have "incomplete understanding" of technology... and how the judges are actually buying it.
My friend, it takes money to fight this stuff.
And if the technology community doesn't get behind the RIAA victims, it will be a bloodbath that will affect everyone -- not just p2p music file sharers.
Meanwhile, I am gratified to say that the technology community is getting behind these folks.
I have seen reports that Kazaa has entered into a settlement with the RIAA, under which it will seek to sell "licensed" RIAA music throught p2p technology.
The terms of the settlement have not been disclosed.
I am assuming that the settlement does not in any way affect the thousands of lawsuits against Kazaa customers. If that is so, it's wrong.
Many of the fine people who are being terrorized by the RIAA are in this mess because of Kazaa, and a settlement which gets Kazaa off the hook with the RIAA but doesn't do anything for the good folks who took Kazaa at its word, is not something I find comforting in the least.
I would have thought that Kazaa would have done something to end the reign of terror against its customers.
If the settlement doesn't provide for the cessation of RIAA litigation against Kazaa customers, and if Kazaa will be working with the RIAA to sell licensed distribution, I would call upon all members of the public to boycott the 'new Kazaa' to the same extent that they are boycotting the RIAA.
And I would call upon all defendants in RIAA cases, who are being sued because of Kazaa, to consider -- if they have the means to do so -- cross suing Kazaa.
The RIAA's argument is that merely 'making something available' is in and of itself a copyright infringement. I.e the only people known to have accessed the shared files folder are the RIAA's own investigators. If this rationale is accepted, it would mean, e.g. :
-I write a story and license you to publish it on your web site but not to sell reproductions or reprints;
-You publish the story on your web site as your are licensed to do;
-I then go to your web site and make a copy of it;
-I then sue you for copyright infringement because, due to your publication of it, I was able to make a copy.
Computer & Communications Industry Association and US Internet Industry Association
("Amici") file this brief as amici curiae to address an issue of critical importance in copyright
law, the scope of the distribution right in section 106(3) of the Copyright Act, 17 U.S.C .
106(3), that extends far beyond the particular facts of this case . This brief has been prompted by
Plaintiffs' argument that there is a general "making available" right under U.S. copyright law .
See Plaintiffs' Opposition to Motion to Dismiss at 15-22 . Plaintiffs offer a misguided analysis of
the section 106(3) distribution right . Plaintiffs' argument seeks to expand the concept of
"distribution" to incorporate an overbroad concept of "making available" in order to challenge
Defendant for having sound recordings on her computer in a "shared file folder" available to
others over the Internet via a peer-to-peer file sharing system.. Such an expansion would allow
Plaintiffs to avoid having to allege or prove that Defendant actually distributed anv copies or phonorecords of copyrighted works to the public by sale or other transfer of ownership, or by
rental, lease, or lending as required by the plain language of section 106(3) .
Amici do not take a position on whether Defendant is liable for copyright infringement in
this case . Nor do they take a position on whether Plaintiffs have stated a cause of action for
copyright infringement . Amici focus, instead, on the Plaintiffs' effort to expand the section
106(3) "distribution" right of copyright owners under the Copyright Act . Such an expansion of
the section 106(3) distribution right would both ignore the plain language and structure of the
Copyright Act and distort copyright law in a way that would threaten varied interests across the
American economy and society.
and
Plaintiffs' proposed expansion of the distribution right would sweep into the reach of
copyright law many activities not now covered by copyright law . Under such an elastic
interpretation and ill-d efined standard, the Internet connections and equipment that members o f
S Nor was there any indication that the Second Circuit relaxed a requirement of actual
dissemination of a copy or phonorecord for a violation of the distribution right under section
106(3) . To the contrary, when the court of appeals cited section 106(3), it referred to actual
transmission of a material object, not a mere offer to transmit . See Agee, 59 F.3d at 325 .
10
NY:1 0 13415.1
Amici furnish may render them vulnerable to accusations that they "make available" a variety of
content, including copyrighted materials, to users . Such activities, e.g., providing Internet
connections, however, do not constitute distributions within the scope of section 106(3) . If a
vague conception of "making available" we
In the UMG v. Lindor case, we are attacking the constitutionality of the RIAA's argument that it should be awarded $750-per-song statutory damages for 70-cent downloads.
The copyright fee award is discretionary, not mandatory.
If it is granted it is unlikely to be for the full amount of what was expended.
Lawyers cannot afford to represent defendants in the hope that they will be compensated by the attorneys fee award.
Getting a lawyer is problematic.
Representing onesself is very very hard, and most people just couldn't do it.
The deck is stacked.
A solution: the technology industry must start supporting those defendants who are willing to fight if they can get financial help; otherwise the RIAA and MPAA will rewrite copyright law in such a way as to destroy the internet as we know it.
Slashdot Mirror
I really don't understand your first paragraph at all. The ACLU is an organization with a long history of fighting for civil liberties. Why would you slam them because once in a blue moon they actually get paid a small portion of the expenses involved in their work, instead of the money having to come from their contributors? And why is it wrong for someone who is proved to have violated someone else's civil rights to have to pay all or part of their attorneys fees in vindicating their rights? And why is it wrong for our laws to occasionally shift the attorneys fees to the guilty party, in order to give legal aid lawyers, litigants, and others an incentive to take on a cause where the other side has much more money? Attorneys fees statutes are equalizers between big and small, which is what our country -- and our courts -- are supposed to be about. Contingent fees, and fee-shifting statutes, are the one small exception, one small dent in the rule which otherwised prevails more often than not in the U.S.: whoever has the most money has the best chance of winning in court. I.e., they are a step up from the law of the jungle, that might makes right. Would you have us step down? If not, you shouldn't slam them for fighting the good fight and once in a while getting a little bit of their fees paid back.
Thank you, Frankie, for straightening those early commenters out.
Recently, when I appeared in court in Warner v. Does 1-149 in Manhattan, Judge Owen said, in words or substance, "so they want to find out this person's name and address so they can take his deposition, what's wrong that?" I responded, in words or substance, "No, judge, that's not what they're going to do. They don't want to take this person's deposition. They are going to sue these people, bring lawsuits that wreck people's lives." The judge then said to me "what are you talking about, wreck people's lives?" I proceeded to tell him how these lawsuits affect the poor people that are targeted, and he cut me off, did not allow me to finish, and said that because I used the term "wreck people's lives" he wouldn't believe anything further I could say.
It was therefore quite gratifying to me personally to read the following passage in the amicus brief:
1. The complaint charges them with "downloading, distributing, and/or making available for distribution". In fact the RIAA has no evidence at all of downloading or distributing when they commence the case.
2. I am not aware of any criminal cases. The cases I am aware of are all civil cases, for money damages and an injunction.
3. There is huge potential for mistakes. Their investigation is bogus, and they have no idea when they sue someone if that person has committed any act of copyright infringement whatsoever.
4. Defendants don't need an "excuse" for why someone else might have used their internet access account to commit a copyright infringement, although the RIAA would like you to think otherwise. Take a look at the papers being filed during the next few days in Capitol v. Foster, in Oklahoma, for a discussion of the RIAA's tactics in trying to make people think that parents are liable for their childrens' copyright infringement.
In America, the "American rule" prevails, which is that each party normally bears their own attorneys fees. The exceptions are (a) a statute which provides otherwise, and (b) a contract which provides otherwise. The Copyright Act constitutes such an exception.
I'm not aware of any criminal cases. These are all civil cases, for money damages.
Unfortunately, there really aren't any good options.
1. Pay an extortionate settlement.
2. Represent yourself which is hard and stressful and not the best way to defend a case.
3. Pay lots of money to a lawyer and pray you might get some of your attorneys fees back at the end.
Normal options, like reasoning with the other side and getting them to go away, or to take a reasonable settlement, don't work here.
I was hoping to be able to knock out the cases at the John Doe stage, but the 3 motions we made in Manhattan federal court were all denied.
I am hoping that we can get dismissals of the complaint at an early stage, but so far, of the 7 dismissal motions I know of, 5 have been denied, and 2 are pending. If the 2 pending motions are denied, it will be a pretty uncomfortable posture to try to get these knocked out early stage, at least until we get to an appellate court, which would be a year or more away since denials of dismissal motions are not appealable.
I wish I could give people a good option, but I don't know of any. I'm hoping for one to come along.
Dismissing it all as "babble" may sound like fun, but it's babble that affects people's lives, so we should all try to understand it. And I think reading the judges' "babble" -- rather than reading others babbling on about it -- is the best way to understand what is really going on.
In this particular area, sophisticated tech people who read the judges' decisions are immediately aware that the judges don't know what they're talking about, and that the RIAA lawyers are deliberately trying to play on that and confuse the judges. And sophisticated tech people are also aware that the judges' rulings, if they buy into what the RIAA's lawyers are arguing, can imperil the entire internet, in areas that go far beyond the subject of music file sharing.
Which to me says that the tech community needs to connect their babble to the babble of the good guys in the legal community, and work together, to make the truth understood to the judges, before it's too late.
So you can babble on about the lawyers creating the babble, but you should recognize that there are some lawyers trying to cut through the babble and help get the truth out, and you should be helping them rather than lumping all lawyers together.
Sorry if I've babbled on too long.
We recently served some followup interrogatories in UMG v. Lindor, in Brooklyn federal court, trying to get to the bottom of the RIAA's evasiveness.
That's right,digitrev. In Canada and the Netherlands they recognized that the RIAA's "investigation" was fake and felt the evidence wasn't sufficient to warrant giving out confidential information.
In the U.S. they seem to have rubberstamped the RIAA tactics.
Although I wonder if there's some judge out there who laughed them out of court.... but hasn't been heard from because the case was ex parte.
I've been trying to build such a directory of lawyers who are fighting the RIAA:
http://info.riaalawsuits.us/directory.htm
My list tries to include only lawyers who will definitely fight, rather than try to steer you to settling.
And the EFF has a broader list of lawyers who have expressed an interest in helping the defendants:
http://subpoenadefense.org/legal.htm
Personally, I think (a) the people at Slashdot are a pretty intelligent lot, and (b) the best things for them to read are not what a commentator has to say, but the actual court records.
I have seen some spirited, high-level debates in these pages where people cite to different parts of different litigation documents.
That is why my site is the way it is; it is information, not entertainment. The key elements are (a) the index of litigation documents; (b) the directory of lawyers who are fighting the RIAA; and (c) the posts highlighting significant level events. The post, How the RIAA Litigation Process Works, which Grant Robertson describes as being as 'dry as a bread sandwich', is merely intended to be an accurate summary of what is going on out there, not a substitute for informing onesself and forming one's own opinions. (I hope punkr0x is right, that it is not quite as poorly written as Grant makes it out to be.).
My site is intended to serve the following readers: (a) people who are being targeted by the RIAA; (b) lawyers who are representing or would like to represent these folks; (c) journalists looking for primary rather than secondary sources; and (d) other intelligent people, lawyers and nonlawyers alike, who want to understand what is happening here, and who don't need to be told what to think.
I think the 'laymen' at Slashdot are pretty good readers.
Under the Copyright Act, the prevailing party may be awarded attorneys fees. In Capitol Records v. Foster, the defendant has made a motion for her attorneys fees.
Thanks, punkrOx.
If I may be forgiven for answering my own question, I've obtained, and posted, a copy of the complaint. It accuses Lime Wire of fostering copyright infringement by discouraging what it termed "freeloaders".
Does anyone have a copy of the complaint yet?
We are specifically adding coverage of the Shawn Hogan case. http://recordingindustryvspeople.blogspot.com/2006 /08/recording-industry-vs-people-initiates.html
Just to let you know that selected litigation documents in Shawn Hogan's case will be made available online here
The amount in controversy is $2500. It could cost $50,000 or more to fully litigate a copyright infringement case.
If you read this, you'll get it. The trade associations for the computer and internet industries explained it eloquently. Your analogy is right on the money, so maybe you do get it. Your disbelief that that could be the law is lovely, but if you read the Fonovisa decision, you should get it: this is really happening. This is really the law if it doesn't get shot down in the courts.
Lest you continue to think what I said, about how the RIAA is rewriting copyright law in such a way as to destroy the internet as we know it, is "hyperbole", why don't you read the court's decision in Fonovisa v. Alvarez, which came down just the other day?
There you will see the kind of nonsense the RIAA is feeding judges who have "incomplete understanding" of technology... and how the judges are actually buying it.
My friend, it takes money to fight this stuff.
And if the technology community doesn't get behind the RIAA victims, it will be a bloodbath that will affect everyone -- not just p2p music file sharers.
Meanwhile, I am gratified to say that the technology community is getting behind these folks.
The "Defective by Design" campaign of the Free Software Foundation has launched a fundraising drive to help the RIAA victims.
And the U.S. Internet Industry Association and Computer & Communications Industry filed an amicus brief in Elektra v. Barker.
So there is hope.
I have seen reports that Kazaa has entered into a settlement with the RIAA, under which it will seek to sell "licensed" RIAA music throught p2p technology. The terms of the settlement have not been disclosed. I am assuming that the settlement does not in any way affect the thousands of lawsuits against Kazaa customers. If that is so, it's wrong. Many of the fine people who are being terrorized by the RIAA are in this mess because of Kazaa, and a settlement which gets Kazaa off the hook with the RIAA but doesn't do anything for the good folks who took Kazaa at its word, is not something I find comforting in the least. I would have thought that Kazaa would have done something to end the reign of terror against its customers. If the settlement doesn't provide for the cessation of RIAA litigation against Kazaa customers, and if Kazaa will be working with the RIAA to sell licensed distribution, I would call upon all members of the public to boycott the 'new Kazaa' to the same extent that they are boycotting the RIAA. And I would call upon all defendants in RIAA cases, who are being sued because of Kazaa, to consider -- if they have the means to do so -- cross suing Kazaa.
The RIAA's argument is that merely 'making something available' is in and of itself a copyright infringement. I.e the only people known to have accessed the shared files folder are the RIAA's own investigators. If this rationale is accepted, it would mean, e.g. : -I write a story and license you to publish it on your web site but not to sell reproductions or reprints; -You publish the story on your web site as your are licensed to do; -I then go to your web site and make a copy of it; -I then sue you for copyright infringement because, due to your publication of it, I was able to make a copy.
The subject of how the RIAA's 'making available' argument would, if accepted by the courts, shut down the internet, is explored in depth and with great cogency and urgency in the amicus curiae brief submitted by the United States Internet Industry Association and the Communications & Computer Industry Association in Elektra v. Barker in Manhattan federal court.
They argue
In the UMG v. Lindor case, we are attacking the constitutionality of the RIAA's argument that it should be awarded $750-per-song statutory damages for 70-cent downloads.
You're exactly right.
The copyright fee award is discretionary, not mandatory.
If it is granted it is unlikely to be for the full amount of what was expended.
Lawyers cannot afford to represent defendants in the hope that they will be compensated by the attorneys fee award.
Getting a lawyer is problematic.
Representing onesself is very very hard, and most people just couldn't do it.
The deck is stacked.
A solution: the technology industry must start supporting those defendants who are willing to fight if they can get financial help; otherwise the RIAA and MPAA will rewrite copyright law in such a way as to destroy the internet as we know it.