RIAA Says "Wanna Fight? It'll Cost You!"

jeiler writes "Ars has the details on an RIAA strategy to double the cost of settling copyright infringement suits for students who try to quash the group's subpoenas in court. In a nutshell: settle early, pay $3,000; try to quash the subpoena and the settlement cost rises to $8,000."

Shouldn't matter...

If half the RIAA's claims are as bogus as some say they are, the cost to settle shouldn't matter. Because you should win if you haven't done anything wrong. Right?

Right?

Re:Shouldn't matter...

This is good news. Rather than "Fight and it'll cost you" in reality they are offering a discount to people who settle. See, the thing is, one man cannot fight the RIAA in court. But now they are faced with hundreds, even thousands of people challenging them. And they haven't been winning, usually due to lack of evidence that any infringement actually occured. So they aren't recouping the cost of their really expensive teams of corporate attorneys, long discovery sessions, return after return to the courtroom, etc. If we ALL fought at once, they would go out of business or be forced to change their model. They are starting to recognize it, and now they just want to capture as much as they can to pay their lawyers huge bills.

Re:Shouldn't matter...

Go look up the meaning of the tragedy of the commons. Specifically, although it would benefit the whole public to challenge the RIAA collectively, what you're going to end up with is a bunch of people who are intimidated into a settlement for that most selfish of purposes, self-preservation. You're not going to see everyone fight together, it's not in human nature.

And remember

This is a civil case. That means it isn't so easy to defend yourself. In a criminal case the standard is beyond a reasonable doubt. That is a fairly high standard because it means, just as it says there must be no reasonable doubt that you committed the crime for the jury to convict. That means that the prosecution actually has to prove their case, the defense needn't do anything at all if they don't. Also in a criminal trial, you get a lawyer, even if you can't afford one. Public defenders generally aren't as good as high paid lawyers, but they are lawyers none the less who can help you navigate the complexities of the legal system.

A civil case has a much lower standard, the preponderance of the evidence. More or less that means whoever has the more convincing argument. There can still be reasonable doubt, so long as one side seems to present better evidence, then they win. Also, you aren't given a lawyer, you have to pay for one yourself.

So even if you are innocent, paying the extortion money can be the easy out to take. It'd be real hard to mount a defense for $30,000, much less $3,000. Even if you do, they could still win.

That's the problem here. It isn't one of these "Oh you are innocent so you have nothing to worry about." No, you have a lot to worry about. Either you pay a ton of money to hire a lawyer to try to defend yourself, or you do it all by yourself and almost certainly lose just because you don't understand the legal system.

Re:And remember

Mod parent up.

This thread is going to be full of people saying "When you win in court..."

Assuming no special legal knowledge, the average person with no lawyer will lose to the RIAA in court. And as for hiring a lawyer,

It'd be real hard to mount a defense for $30,000, much less $3,000. Even if you do, they could still win.

Re:And remember

So? I'll be broke after the lawsuit anyway. And before my money goes to the RIAA, I'd prefer it to be in the hands of a lawyer with the chuzpah to fight them.

Don't forget what amounts of money we're talking here, and what people. We're not talking about the average 50ish person building a nestegg. The average defendant is someone who is in or just out of college, deeply enough in debt that they have to work their way out for 20 or so years anyway and for whom it doesn't really matter if you stack 8k or 80k on top of that. He is in bankrupcy after that.

So why not fight it? Any good reasons?

Re:And remember

Or ask the EFF.

I'm not sure how it work, wether they just defend you for free (if they think your case is relevant to their fight), or if they just get paid low rate, but either way you'll probably get the most competent people for that precise matter, for far less than a top lawyer's fee.

Plus, you might get NYCL's autograph :)

Re:And remember

Congrats. You've written the best summary I've yet read on how the US has two legal systems, one of which has major flaws but is basically OK, and the other of which needs to be rewritten from scratch.

The problem with just condemning civil cases outright is that without civil courts, corporations would be subject to no law whatsoever. If I neglect basic responsibility and allow someone to be killed, I'm a manslaughterer, and my freedom (and ability to do business) is halted for decades. When a corporate legal person does the same thing, all they have to fear is fine by court. Take that away or cap the fine, and they are not just inhuman market entities, but also without law.

It's complicated

So yes, copyright infringement can be criminal. However, the RIAA's evidence is extremely weak, not nearly enough for a criminal case. What's more, not all infringement is criminal, some is civil. Same sort of thing with traffic tickets. Some can be criminal, but many are not. If you get a simple speeding ticket, that's not a criminal ticket, it's a civil one.

Now also many crimes can have a civil component as well. Take a hypothetical situation: Suppose you are the owner of Evil Corp, and my wife works for you. Because you are evil, you don't give two shits about your employees and knowingly put my wife in a very dangerous situation. This causes her death. You end up getting charged with reckless endangerment and plead to manslaughter. Ok, great, however I'm still now a single parent trying to raise kids. Something that might help is some of the vast amount of money Evil Corp has made. So I file a civil suit against you for wrongfully causing her death. I win this, and thus get a large portion of your money.

OJ Simpson had something similar happen. He was acquitted of first degree murder charges. However he lost a civil suit charging him with causing wrongful death.

There's good reason for the system to work like it does, and to have civil and criminal components to a given case. However the RIAA is abusing it. They are trying to use civil suits to be able to go after people on extremely shaky, and often outright incorrect, evidence.

It is certainly a loophole that needs closing, but you have to be careful. While the civil system does allow for things like this, it also gives you the ability to go after people like the hypothetical Evil Corp, and does so even if the DA refuses to bring criminal charges.

Re:It's complicated

If you get a simple speeding ticket, that's not a criminal ticket, it's a civil one.

Uhhh, this is completely wrong.

Civil cases are about injury, where one party injures another and the injured party sues for relief. Copyright law is mostly a civil issue (e.g. you created illegal copies of my recording, and damaged my ability to make money with it), though the legislature has recently added some criminal provisions in the last few decades.

Crimes are about protecting public interests. All moving violations are part of the criminal code of your state; they're laws passed to restrict certain driving behaviors in the interest of highway safety. Traffic court is generally a little different from other criminal court, in the interest of efficiency, but that doesn't change the fact that it is a criminal court.

The difference between traffic violations and most other crimes is that most traffic violations are treated as minor crimes. Crimes fall into one of three categories: infractions, misdemeanors and felonies. Most states also define various grades within those categories. Most traffic violations are infractions, which means that you cannot go to jail for them. However, there are some more serious traffic crimes which are misdemeanors, which can carry jail time, and even felonies, which can carry a lot of jail time and remove other privileges. Reckless driving is a misdemeanor, for example.

Re:Shouldn't matter...

2) You don't live in a deserted island. Injuring yourself will have a cost for society. There will be minor inconveniences to a few people who are counting on you (boss, coworkers, clients...); there will be a lot of people who'll get late to work because you're body is blocking the road; depending on where you live, society will have to pay for cleaning up the mess, repair on public damage, hospital...

I understand what you're saying here, and there is a point to it.

That being said however, giving government power to control behavior and write laws based on this principal can be a very dangerous thing to do. I believe that any costs to be assessed against an individual on these grounds should only be a result of a civil action between citizens.

Once you've opened the door to government control of, and given it the ability to pass legislation concerning, ones' own personal behaviors and activities as it affects ones' own health and safety and/or costs to society, such laws, regulations, and legislation are subject to subsequent interpretation and re-interpretations later that tend to unnecessarily restrict peoples' normal activities and behaviors far beyond the intentions of the original framers of said laws/regulations/legislation.

Every human activity engenders some form of risk and cost to society. Parachuting, gun ownership, exploration (terrestrial and space), swimming, and riding a motorcycle to name but a few examples, all engender personal risk that will add costs to society if one is hurt or killed.

Giving government the ability to restrict behavior financially and/or imprison people for taking risks gives the government the power to restrict or forbid practically any activity it chooses, and veto power over any proposed action or endeavor. All government needs, once the door to control these activities and behaviors is legally opened, is to find a friendly court to interpret the legislation how they wish.

As the saying goes, any power given to the government will at some point be abused by those in power for their own ends. Our only defense as citizens is to grant the government as few powers as possible, and to keep the government weak enough to not be a danger.

One need look no further for proof of this concept than the US government (and most other 1st-world governments) in its'/their current state(s), and changing the figureheads or the legislative puppets for a 'D' or 'R' (or whatever the mainstream political parties' initial or insignia happens to be) by their names will not change this once a certain threshold of government size and power has been passed.

This characteristic of human governments, I believe, is where Thomas Jeffersons' concept of the Tree of Liberty needing to be refreshed from time to time with the blood of Patriots and Tyrants comes from.

Cheers!

Strat

But...

How is this different from any other type of corporate lawsuit? Raising settlement costs if the other party prolongs the case is hardly new.

Re:But...

I keep hearing that this is turning into a business model, but has anybody really figured out the economics of it? All those lawyers, plus the risks they're taking every time they go to court, plus having to pay out a chunk of the winnings to the artists, the labels, etc....

I find it much more likely that the whole thing is an expense for the record companies, but that it is worth it to save their dying business model.

But I also have no real numbers on how many cases actually settle, lose, win, etc., much less the cost of filing the suits in the first place.

Re:But...

Wait wait wait, they pay the artists?

Re:But...

The secret to their business plan is that they never pay out any chunks of winnings to the artists.

It is a business model, but not like you think

The lawyers don't care whether the long term effect of suing their Client's Customers is good or bad.

They've convinced their Clients this legal service and the lawyers are rackin' up the billable hours.

Realize that an organization (any organization) becomes less self-aware (right hand knows what left hand is doing) as it becomes larger. Once it gets to a certain size, behaviour becomes fragmented--you'll often see one department working at cross purposes to another in the same company.

Ask anybody who's ever worked for the government (even a city government), or a Fortune 100 company.

The answer to the question "Why do they do something that is clearly self destructive?" is that there is no "they", and the folks that are doing the suing know *exactly* what they're doing.

I'd have thought it would be more...

I understand that raising the cost of settling out of court is meant to deter people from fighting in the first place, but considering the ludicrous fines they expect people to pay, it's a little too low. Looks to me like they're just trying to highlight their low, low prices, to avoid people setting a precedent in court, against them.

Keeping up with the times

Excluding the illegal downloads arena (which I know is what they're suing over), I think half the problem is the *AA not keeping up with technology.

At home I have a sizeable DVD collection (around 230 at last count), but with the release of Blu-Ray I'm starting to realize that my collection will eventually be obsolete (such as when DVD first came out, and people with a reasonable VCR collection realized that their collection would eventually be worth squat).

I think this is one of the reasons people download (the other reasons being ridiculous prices, etc). People realize that technology changes - CD collections have been superseeded by portable MP3 players (ipod and the likes), VCR's replaced with DVD's which will eventually lose out to blu-ray (once the prices down).

And people realize this - why should you pay for a CD/DVD, which will eventually become obsolete, when you can get what you want in a digital format (for a cheaper price)?

In the make-it-while-you-can dept.

The RIAA is a sinking ship and they're trying to make as much as they can as long as there are judges and courts that are still sympathetic to their rhetoric.

The four major record corporations fund the RIAA. These companies are rich and obviously well-represented. Recording artists and musicians don't really have the money to compete. The 273,000 working musicians in America make about $30,000 a year. Only 15 percent of American Federation of Musicians members work steadily in music. But the music industry is a $40 billion-a-year business. One-third of that revenue comes from the United States. The annual sales of cassettes, CDs and video are larger than the gross national product of 80 countries. Americans have more CD players, radios and VCRs than we have bathtubs. Story after story gets told about artists -- some of them in their 60s and 70s, some of them authors of huge successful songs that we all enjoy, use and sing -- living in total poverty, never having been paid anything. Not even having access to a union or to basic health care. Artists who have generated billions of dollars for an industry die broke and un-cared for. And they're not actors or participators. They're the rightful owners, originators and performers of original compositions. This is piracy." - Courtney Love [salon.com]

ARAG

Two words: Legal Insurance.

It costs about $17 a month, and I get hundreds of thousands of dollars in legal cost coverage for most situations. Basically, as long as the case does not involve a vehicle moving violation or is a conflict of interest with my employer (a major grocery chain), I am smilin' all the way to the court house.

I've had the insurance for almost a year now, and I've actually been kind of hoping for an opportunity to sue/counter sue someone... God bless America.

Go ahead, punks, make my day...

Eight grand is about what I make in a year. For a year's salary, I'd shoot a lawyer in the back of the head, cut them up, pour concrete over them, and toss them off a bridge. (Don't worry, I would never do that to an actual human being.)

There's one simple way to stop the silliness

There's one simple way to stop the RIAA, MPAA, BSA silliness...make the member companies jointly liable for the excesses of the enforcement organization. Apply the same regulations for bill collectors. As long as they're playing by the rules and obeying the law, no problem. But if you're responsible for the actions of a collection agency you hire, you might be a little more selective about who you pick. Likewise if Sony, BMG and the others found themselves exposed to liability, they might lean on RIAA to play by the rules. In fact, I'd be willing to bet RIAA membership would drop significantly overnight.

I had a dispute with Dish Network a couple years ago, they tried to blame an advertising partner for the problem.

It would change the entire outsourcing landscape. If the local hospital is responsible for the actions of outsource contractors, they might think twice before hiring medical transcription services from Abduls Discount Transcription in downtown Pakistan. As long as companies can insulate themselves from liability when trying to cut corners the silliness is going to continue.

Re:Really... Really?

How is this not racketeering and extortion? I mean, c'mon...

It's not either of those things, I'm afraid.

My girlfriend IAL; she says this particular practice of the RIAA is perfectly legal. A party to a civil litigation can alter the settlement terms basically however they want, whenever they want (subject to public policy, of course: RIAA can't alter the terms to include the forfeit of your firstborn child or whatever). A settlement is just a contract, after all.

This makes sense, so the argument goes, because a party's costs for litigating a particular case become higher and higher as the case progresses. So, the settlement costs must increase concordantly.

Re:Really... Really?

How is this not racketeering and extortion? I mean, c'mon...

It's not either of those things, I'm afraid.

My girlfriend IAL; she says this particular practice of the RIAA is perfectly legal. A party to a civil litigation can alter the settlement terms basically however they want, whenever they want (subject to public policy, of course: RIAA can't alter the terms to include the forfeit of your firstborn child or whatever). A settlement is just a contract, after all.

This makes sense, so the argument goes, because a party's costs for litigating a particular case become higher and higher as the case progresses. So, the settlement costs must increase concordantly.

Your GF might be right if they were stating that they would ask for a higher settlement if the case was prolonged but in the case mentioned here its no different then my walking into every store on the block and threatening a lawsuit for $8000 if they didn't pay me $3000 now. Remember that when the RIAA sends out their little settlement letters they have already dropped a lawsuit against Doe, have not filed the new lawsuit, and it isn't the RIAA legal team who are asking for the money.

Re:That's a RICO predicate.

RICO? Are you fucking kidding me? They aren't threatening anyone to keep them from defending themselves. Think about the kind of stuff that the RICO statutes were trying to criminalize and tell me if you can still say that with a straight face. If nothing else raising the settlement costs might encourage people to go the defense route instead of settling.

C'mon, people. Stop making arguments based on emotion instead of logic and facts. The RIAA and their army of lawyers are fucking scumbags, no doubt. And we have kind of a screwed up system here (yes, that was an understatement) which isn't making matters any easier. But spewing nonsense like this will get us nowhere.