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RIAA Brief Attacks Free Software Foundation
Posted by
timothy
on Tue Apr 21, 2009 04:10 PM
from the but-copyleft-needs-copyright dept.
from the but-copyleft-needs-copyright dept.
NewYorkCountryLawyer writes "The RIAA has requested permission to file a response to the amicus curiae brief filed by the Free Software Foundation in SONY BMG Music Entertainment v. Tenenbaum, the Boston case against a Boston University grad student accused of having downloaded some song files when in his teens. In their proposed response, the RIAA lawyers personally attacked The Free Software Foundation, Ray Beckerman (NewYorkCountryLawyer), and NYCL's blog, 'Recording Industry vs. The People.' The 9-page response (PDF) — 4 pages longer than the document to which it was responding — termed the FSF an organization 'dedicated to eliminating restrictions on copying, redistribution, and modifying computer programs,' and accused the FSF of having an 'open and virulent bias against copyrights' and 'blatant bias' against the record companies. They called 'Recording Industry vs. The People' an 'anti-recording industry web site' and stated that NYCL 'is currently subject to a pending sanctions motion for his conduct in representing a defendant' (without disclosing that plaintiffs' lawyers were 'subject to a pending motion for Rule 11 sanctions for their conduct in representing plaintiffs' in that very case)."
Related Stories
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NYCL Responds to RIAA Accusations 231 comments
NewYorkCountryLawyer writes "You may recall that when the RIAA decided to run away with its tail between its legs in the long running Brooklyn case against a home health aide who has never used a computer, UMG v. Lindor, it decided to take some parting shots at the defendant and NewYorkCountryLawyer, asking for 'discovery sanctions,' and blaming them for its inability to prove its case. Today NYCL gave them his response, accusing the RIAA lawyers of persistent misstatements of fact (PDF) throughout their motion papers, and of flouting the rules and misstating the law (PDF). Although the RIAA's motion papers took a number of shots at NYCL's copyright law blog, 'Recording Industry vs. The People,' NYCL confined his response on that subject to a single footnote."
[+]
FSF Files Amicus Brief In RIAA Case 73 comments
NewYorkCountryLawyer writes "The Free Software Foundation has requested permission to file
an amicus curiae brief in an RIAA case, SONY BMG Music Entertainment v. Tenenbaum, defending the defendant's Due Process defense to the RIAA's claim for statutory damages. In the brief [PDF], FSF cites some of the leading authorities for the defense, including the 2003 decision of the US Court of Appeals for the 2nd Circuit in Parker v. Time Warner, which held that excessive statutory damages are subject to the same due process test applicable to punitive damage awards by juries. Additionally, the brief cites three district court decisions, including UMG v. Lindor, and two law review articles — all of which deal specifically with Copyright Act statutory damages applicable to infringement of an MP3 file — to like effect."
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"anti-recording industry website" (Score:5, Insightful)
Re:"anti-recording industry website" (Score:5, Insightful)
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Re:"anti-recording industry website" (Score:5, Insightful)
Of course, they fail to mention that the FSF is dedicated to doing this through legal means.
Hell, it isn't just through legal means, it is through practising what they preach with their own creations. Something RIAA members haven't been so keen to do themselves what with all of their shady accounting schemes to bilk creators out of their copyrights.
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Re:"anti-recording industry website" (Score:5, Insightful)
Unless, of course, I've completely misunderstood the FSF's goals. Which is entirely possible.
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Re:"anti-recording industry website" (Score:5, Insightful)
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Bias? (Score:5, Interesting)
'open and virulent bias against copyrights' and 'blatant bias' against the record companies.
Funny. I always thought the RIAA has an open and blatant bias against Fair Use. (yes, I know file sharing is not F/U, but those guys don't even want you copying your own stuff even if you never share it)
Anti-Copyright? (Score:5, Insightful)
The FSF's centerpiece, the GPL, depends wholly on copyright for enforcement.
So saying that the FSF has an "open and virulent bias against copyrights" clearly demonstrates either a lack of research, a lack of understanding, or a lack of honesty on the part of the RIAA's lawyers.
Not completely inaccurate. (Score:5, Interesting)
On the other hand, saying that the FSF is "dedicated to eliminating restrictions on copying, redistribution, and modifying computer programs" is extremely accurate. In fact, though I didn't see it on the home page, it's the quote that comes up in the Google blurb [google.com] when you search.
Also, just because the GPL requires copyright to function doesn't mean that the FSF isn't against copyright. I think most of us concede that the GPL is a case where the FSF is using copyright law in a novel, unintended way to accomplish their goals.
If the FSF could rewrite copyright law, it'd be completely different. I'd say they have an open dislike (maybe not "bias") against the current typical use of copyright, especially for computer programs.
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Re:Not completely inaccurate. (Score:5, Informative)
I think most of us concede that the GPL is a case where the FSF is using copyright law in a novel, unintended way to accomplish their goals.
That's why they call it the "copyleft" - not out of some right/left ideology, but to indicate that the GPL is a hack of copyright - the definition of hack being a novel and unintended use.
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Re:Anti-Copyright? (Score:5, Insightful)
The FSF's centerpiece, the GPL, depends wholly on copyright for enforcement. So saying that the FSF has an "open and virulent bias against copyrights" clearly demonstrates either a lack of research, a lack of understanding, or a lack of honesty on the part of the RIAA's lawyers.
Picky picky.
The truth has never been seen as an obstacle by the RIAA's lawyers.
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Re:Anti-Copyright? (Score:5, Insightful)
Heh, I just want them to stop this nonsense so I can go back and buy some CDs. With all the time this is stretching out there's a huge number of albums that I haven't been able to buy without breaking my boycott.
But, I'm sure they've just recharacterized that tiny drop in sales as "due to pirates" and used it as an excuse to waste even more money on piracy prevention and buying elected officials.
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Re:Anti-Copyright? (Score:5, Funny)
The FSF's centerpiece, the GPL, depends wholly on copyright for enforcement. So saying that the FSF has an "open and virulent bias against copyrights" clearly demonstrates either a lack of research, a lack of understanding, or a lack of honesty on the part of the RIAA's lawyers.
I agree with the first sentence of your comment. As to the second sentence, I question your use of the word "or". The correct word should be "and". With that minor correction.... respect.
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Re:Anti-Copyright? (Score:5, Funny)
Darn it, Ray... now I'm beginning to suspect that YOU have some sort of bias against the RIAA too! ;-)
How dare you say that? I have nothing against them. I wish them the best in their lives. I hope that, after they serve their time in jail, they succeed in finding honest work, and live out their days in peace.
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Who cares about the length? (Score:5, Insightful)
"4 pages longer than the document to which it was responding"
And?
Things I found interesting (Score:5, Informative)
I am not a lawyer but my understanding that amicus curiae briefs came from parties not directly involved with the case but are very rarely neutral. From wikipedia [wikipedia.org]: "The role of an amicus is often confused with that of an intervener. . . The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is not a litigant. . . Non-profit legal advocacy organizations such as the American Civil Liberties Union, the Electronic Frontier Foundation, the American Center for Law and Justice or NORML frequently submit such briefs to advocate for or against a particular legal change or interpretation."
Again from wikipedia: "Amicus curiae or amicus curiæ (plural amici curiae) is a legal Latin phrase, literally translated as "friend of the court", that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it." Offering additional information is the point of amicus curiae.
Re:Things I found interesting (Score:5, Informative)
I am not a lawyer but my understanding that amicus curiae briefs came from parties not directly involved with the case but are very rarely neutral.
Of course you are correct, UF. If the amicus curiae felt 'neutral' on the subject, why would they be filing a brief? We were not asking to be appointed judge; we were submitting a brief which would help the Court see why the plaintiffs were dead wrong.
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Re:Things I found interesting (Score:5, Funny)
If the amicus curiae felt 'neutral' on the subject, why would they be filing a brief?
Here's a neutral amicus curiæ: tell the court I said "Hello."
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Uh, they are LAWYERS! (Score:5, Funny)
I am shocked! (Score:5, Interesting)
As far as the "pending sanctions motion", anybody can _request_ sanctions against opposing counsel - I've done it myself, when somebody suing me for $500,000 couldn't even be bothered to meet the court imposed deadlines. A pending motion is standard operating procedure. Get back to me when a judge actually imposes sanctions -- that is much more rare.
My favorite quote (Score:5, Insightful)
And then in the very next sentence:
I mean... unless something has changed in their pattern, they only have documentation of one legal download and that being from an investigation team that may or may not be licensed.
Why has no attorney ever taken a look at the finances and circumstances associated with one particular song - how much revenue did this earn in the year prior, the year during, and the year after the alleged infringement. Most of the songs that I've noted have been out for at least a decade if not two, with little or no marketing, and zero spins on any of the radio stations I listen to.
Another argument I never see in any of these is the challenge the RIAAs ownership of the material. A 20 year old song may or may not have a clear ownership record, and with the history of the industry, you really should establish that the recording artists, the producers, and the songwriters all have given the RIAA authority willingly and contractually prior to the filing of any individual lawsuit.
Idiots (Score:5, Funny)
Or, to put it another way, Richard Stallman's cock is larger than the the cock size of everyone associated with the RIAA combined! What are they going to do in the face of such an enormous penis? What can they do?
Yeah I could make a serious post on the subject, but I'm giving the RIAA all the respect they and their shrill complaints deserve.
NYCL strikes again (Score:5, Funny)
Wow, perfect grammar in a /. story summary! I can't recall seeing such an exquisite exposition of the proper usage of nested quotation marks.
It's almost as if /. found a professional editor!
Oh wait...
I am not a lawyer.... (Score:5, Funny)
...but I'd really like to know how to file one of those amateur circus briefs.
Re:Maybe I haven't been paying attention... (Score:5, Insightful)
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Re:Maybe I haven't been paying attention... (Score:5, Funny)
Yeah, but they probably don't know about Stallman's twin katana prowess... I certainly would never try to provoke him to anger...
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Re:Maybe I haven't been paying attention... (Score:5, Funny)
That's an XKCD reference, boy. You know what we do to XKCD referencers around here?
Cheer them on and be reminded to go check out the recent comics at XKCD? /cheer
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Re:Maybe I haven't been paying attention... (Score:5, Interesting)
Five of their lawyers are now placed in high-level positions [wired.com] within the Department of Justice?
I dunno. It could be something else, or just a coincidence, but this does seem to be the simplest explanation among those them...
Speaking abstractly, it's not a bad national strategy in a way. We're fucked economically, and have no manufacturing base to speak of. There's not much we can do except enforce "intellectual property" overseas. The downside is the implicit effect that this will have on domestic freedom and true innovation. I suspect we (as knowledge workers) will be learning some hard lessons in the next few years. I would not be surprised if the FSF and EFF (among others) are forcibly nationalized and destroyed/reorganized within four years.
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Then we're fucked (Score:5, Funny)
GNU General Public License, version 6, 2013
1. Pull down you pants.
2. Bend over.
GPLv2 or later doesn't sound like such a good idea now, does it?
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Re:Maybe I haven't been paying attention... (Score:5, Insightful)
If you can't innovate, litigate.
If you can't litigate, legislate.
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Re:Maybe I haven't been paying attention... (Score:5, Funny)
If you can't innovate, litigate.
If you can't litigate, legislate.
If you can't legislate, watergate?
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Re:Maybe I haven't been paying attention... (Score:5, Funny)
x283.
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Re:Maybe I haven't been paying attention... (Score:5, Insightful)
Note that litigation costs scale badly.
Beyond a certain threshold, it is cheaper to legislate first.
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Re:Maybe I haven't been paying attention... (Score:5, Insightful)
It is not the neo-cons that we have to worry about. It is which oligarchs have the reins of which legislators and judges. It is beginning to look like the oligarchs that control the Obama group are going to take our intellectual and cultural freedoms from us, rather than our constitutional freedoms.
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Re:Maybe I haven't been paying attention... (Score:5, Insightful)
There's always some dastardly evildoers trying to steal our freedoms, nowadays, isn't there. If it's not the extremists it's the communists, or the democrats, or the republicans or the liberals, or the PC brigade with all their health and safety mumbo jumbo, coming to take away our precious, precious freedoms (it's our freeeeeeeeeeeeeeeeeeedommmmms, preeeeeeeeeeeeeeecious). As we stare at this wonderous package of glory. Our freedoms, which we have, and those ever growing hordes of zealots - from one side of the political spectrum or another (depending on our own beliefs) - coming to rip it from our hands and hurl it in to the volcanoes of Mordor or something. Or freedoms! Please! Won't someone think of the freedoms!
It's certainly an emotive issue.
And if people actually did care then maybe they'd stop slinging shit into the eyes of fabricated enemies for 15 seconds and realise that there is a middle ground in which you can actually work together and not just boil it down to some pitiful good/evil pantomime.
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Re:Maybe I haven't been paying attention... (Score:5, Insightful)
There's always some dastardly evildoers trying to steal our freedoms, nowadays, isn't there.
Nowadays? Not a moment in Humanity's history was a calm silence where groups of people weren't trying to impose their will on others by penalty of death or disruption. It's a story that will long repeat itself and is unlikely to ever end.
The price of freedom is eternal vigilance.
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Well-structured ad hominem attack (Score:5, Insightful)
I've noticed that people resort to ad hominem when they haven't a better arguement to use.
The 9-page brief looks like a very nicely structured ad hominem attack, but that's all it is.
Or, to paraphrase, "Don't listen to him, he's just a lawyer! Whereas I am the True Friend of the Court, he's your enemy! Actually, he's mine, but I'd prefer you thought of him as yours".
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Re:Well-structured ad hominem attack (Score:5, Informative)
I've noticed that people resort to ad hominem when they haven't a better argument to use. The 9-page brief looks like a very nicely structured ad hominem attack, but that's all it is.
Exactly, Nefarious. Except I would question whether it was "nicely structured". It was the work of an incompetent, untrained lawyer who has no respect for the law, and no understanding of what a lawyer is supposed to be. By filing such a brief he merely reinforced the fact that the law is against him. There is not a federal court in the land that will sustain the constitutionality, as against a due process challenge, of a statutory damages award equal to 2100 or more times the actual damages sustained.
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Pound on the table (Score:5, Insightful)
When you don't have the facts on your side, pound on the law.
When you don't have the law on your side, pound on the facts.
When you have neither on your side, pound on the table.
When an opposing party start attacking people on their beliefs, you know they are in bad shape.
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Re:Their aim is improving (Score:5, Insightful)
Targeting lawyers instead of, say, people who don't even know how to defend is "getting better at picking targets" when it comes to law suits that are not far from simple harrassment?
Dunno if I can follow your train of thought.
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Re:Their aim is improving (Score:5, Insightful)
NYCL is not just a harder target to hit, he is also a much more valuable one. If the RIAA can take him out of the equation, then they can go back to pushing around children and crippled grandmothers, but like any bully they can't properly operate with anyone actually standing up to them.
What comes next is the lawyer equivalent of meeting at the playground after school. If the RIAA can put enough hurt on NYCL, RMS and anyone else who has been willing to take a stand, then they go back to stealing lunch money... otherwise it is quite likely that they'll be shown for puffed up cowards and never be taken seriously again.
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Re:RIAA has it right (Score:5, Insightful)
As it has been pointed out above, and despite being modded redundand I want to stress it again, the FSF relies on copyright law. One of its cornerstones is the GPL, and like all licenses it does depend on enforcable copyright law or code protected by it could deliberately be used in proprietary software and neither the FSF nor anyone else could do anything about it.
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Re:RIAA has it right (Score:5, Insightful)
I would say that the aspersions cast concerning Beckerman and the "pending sanctions motion" would be inaccurate. If I were in a lawsuit, I could potentially move to have sanctions entered against my opponent for various miscellaneous reasons, such as making out with the court reporter while the judge's back was turned, etc., regardless of whether any of those things were true or not. For the two seconds it would take the judge to deny my motion, that motion would be pending. At that very moment, someone could file a brief in another court involving the person who is my opponent in my case, stating that there is a pending sanctions motion against that person.
In Beckerman's case, while the motion isn't based on pure ridiculousness as in my straw man above, it's still based solely on allegations made by the RIAA against Beckerman with no consideration of any evidence.
While the assertion may not be "incorrect", as there is a pending sanctions motion against Beckerman, the fact that the RIAA frames it as a reason to discredit Beckerman makes it inaccurate.
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Re:Well, is he? (Score:5, Informative)
So, is Ray "subject to a pending sanctions motion", and if so, what does that mean anyway?
There is a link to the term "pending sanctions motion"; if you follow the link you can read all about it. They made a motion to withdraw their own case, and joined it with a motion for "discovery sanctions" against Mrs. Lindor and myself. The motion was based on nothing but lies. It is still pending. Our Rule 11 motion against them is strictly based on the fact that their motion for "discovery sanctions" was based on nothing but lies, so the 2 motions are closely interrelated.
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Re:Well, is he? (Score:5, Informative)
You must be new here
You must be new here if you're saying that to NYCL.
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Re:Well, is he? (Score:5, Funny)
You must be new here
You must be new here if you're saying that to NYCL.
You must be new here if you're not used to people saying 'you must be new here' to NYCL.
Question: how long do I have to be here before I can be said to no longer be new here? In Soviet Russia I would probably be considered old here.
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Re:Over-reaching much? (Score:5, Insightful)
You describe the backlash as though it hasn't already happened. Remember Tower Records? Virgin Megastore?
The music industry is dying, and this is their last stand.
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Re:Over-reaching much? (Score:5, Insightful)
The music industry is dying, and this is their last stand.
You are correct. The existing music industry infrastructure is dying. Music won't.
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Re:Over-reaching much? (Score:5, Insightful)
the art of music in western civilization may even come alive again if we can get rid of these cartels.
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Re:Ok . . . (Score:5, Insightful)
They act like a government agency but they can only take civil action, regardless of the FBI's doting on copyright abusers. If they were to stay silent a moment too long then what little power they do bear would dissolve.
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Re:Only Terrorists... (Score:5, Informative)
I read the 9-page brief, then I went to www.fsf.org (after adding the third "w" - more evidence the RIAA fails simple maths) and read their front page. Nowhere does it advocate infringing copyright. Nothing can be construed as a recommendation to violate the law or infringe on other people's rights. Nothing. I see the liberal use of terms such as "free" and "open" and other keywords of the dream of American democracy. I may see a little bit of throwback to Tom Paine and Ben Franklin, ancient and pernicious bomb-throwing anarchists that they were, but I see nothing that advocates moving to the dark side of the law.
I don't support RIAA music for the same reason I won't watch The Sopranos. Mafiosi scare me.
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