Judge Says RIAA "Disingenuous," Decision Stands 195
NewYorkCountryLawyer writes "Judge Lee R. West in Oklahoma City, Oklahoma, has rejected the arguments made by the RIAA in support of its 'reconsideration' motion in Capitol v. Foster as 'disingenuous' and 'not true,' and accused the RIAA of 'questionable motives.' The decision (PDF) reaffirmed Judge West's earlier decision that defendant Debbie Foster is entitled to be reimbursed for her attorneys fees." Read more for NewYorkCountryLawyer's summary of the smackdown.
The Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true." This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly.
Nice to see... (Score:4, Interesting)
Finally! (Score:5, Interesting)
Re:Sadly.... (Score:2, Interesting)
Question (Score:5, Interesting)
Why don't "we the people" (Score:4, Interesting)
Re:Finally! (Score:5, Interesting)
Same goes for the original recordings of some classic albums. I don't want the greatest hits copyrighted from 2006, I want to buy a brand new CD with the same record that I grew up with. Take THAT Corey Hart, you stupid Canadian money grubber. You had what, two records? And one of them was a hit? I want to buy your "First Offense" CD, not the Corey Hart greatest hits. It's absurd that you've even got a greatest hits anyway, when "First Offense" had all of hits anyway.
If copyrights were limited as they should be, Corey Hart would be in the public domain by now, or soon, and I could just get a copy of the CD from anybody.
Right now, I don't have any way to get a legal copy of the CD I want to buy. Thank god I already have the entire run of "The Golden Girls" on DVD, or I would have to wait until the next century for my masturbation material.
Judges, no... (Score:5, Interesting)
Unequal income litigation (Score:5, Interesting)
Re:Hey, RIAA (Score:5, Interesting)
Re:fscking A!! (Score:3, Interesting)
This is why I really wonder about the sanity of some of the developers of these ripping apps--if you know there's a real, tangible threat from the industry, why-oh-why do you never release your source? DVD Decrypter, DVDFab, and DVD Shrink are all (at least, at one point I thought they were) closed-source even if some are/were free.
I understand the desire for notoriety in the warez scene, but sometimes the greater good must be served. Open the source.
Finding common ground in a new age (Score:5, Interesting)
My own stance is often conflicted on digital media. I've never deluded myself into thinking I'm striking a blow for justice by downloading a game, software, song, show, etc. gratis. But the often clumsy DRM does sometimes make me regret a legitimate purchase. With BT games, I can take my machine to a LAN party without bringing a single disc. With a legitimate game, I'd either have to bring the discs or patch it as if I had obtained an illegal copy. Hell, I wanted a few songs right away to exercise with, so I downloaded the MSN service and bought a few bucks worth of songs: Easy as pie...until I restore my system, or until MSN folded into URGE without properly supporting legacy customers.
Even this far into the Internet age we still haven't developed proper analogues to physical media. You can loan a book to a friend; the only DRM is the security sticker removed at the store. How do you easily loan an audio book to a friend, without making it easy to endlessly provide perfect copies? The business model needs updating, but to what? As it stands, we are buying encrypted paper books that can only be read with a cipher key licensed to an individual.
But even that metaphor breaks down easily, since paper books employ near-universal formats that anyone literate in the language can read. Since the format is interpreted by the human mind, not a computer, any irregularities in the format (i.e. manga style graphic novels) can be adapted on the fly. We don't have to consider if a book comes in
Ease of use is key to adoption, but what is the balance between business and consumer? Is it fair that iTunes limits players or is it fair to demand that iTunes support an open format? Damned if I know the answer.
Re:Unequal income litigation (Score:5, Interesting)
As to damages based on respective income level, dear god no. That change would completely and utterly overwhelm your first point - if McDonalds injures me to the tune of an actual loss of $1 out of my pocket, I shouldn't be able to claim $1000 just because they're a big company. That creates an enrichment in me and a huge incentive to sue big companies over frivolities. Conversely, if someone backs into Bill Gates' car, he should get less than the cost of fixing it why, exactly? If I have a $1 loss, it is perfectly reasonable to say megacorp defendant who caused the loss need to pay me $1, my filing fees and a reasonable amount on top of the real loss for my discomfort/trouble/pain/annoyance, but as a matter of legal and economic theory, I should *never* come out ahead by suing. A lawsuit is not a jackpot and god help us all if it ever becomes such (though many would argue the US is already there). Now, having said that punitive damage awards do happen- those enrich the plaintiff and are economically questionable, especially on the scale sometimes seen in US courts. But the theory is, megacorp can afford to lose $3 to cause a $1 injury if they actually make $3.25 by doing it or if they only get caught at this one time in ten, so sometimes you need to put a thumb on the scale, as it were. Punitive damages are intended to send the clear message not to do the complained of act again and avoid hundreds or thousands of other people having to sue to make the same point. They are also meant to be rare and in Canada, actually are.
Funny accounting..... (Score:5, Interesting)
Also remember that both the movie & record distributors have been caught repeatedly doing some very funny accounting in reguards to what makes a 'profit'. Most of the contracts issue an advance followed by royalties after a net-profit has been gained.
ISTR that a producers new Ferrari was once considered an 'expense' in calculating net profits. For a modern example of this look no farther than New Line Cinema & Peter Jackson - LOTR1 is showing $100M+ discrepency in the audit. That's a lot of money to be 'disputed' as an expense - like 2 more movies. Worse, although it's in the contract, NL is trying to bar Jackson from auditing the books on the other 2 movies. We are talking potentially 1/2 of $1B in profits being swept under the table & hidden from the 'Artists'.
Re:Sadly.... (Score:5, Interesting)
Yes, you could possibly justify an anti-trust argument, but how about this broader one. If artists are still entering into contracts with a group of companies that have all been caught cheating on contracts, there must be some unfair advantage to keep them doing it. Whether it's a monopolistic trust that leaves them no better options, or the group otherwise enjoys selective immunity from paying the full price of their contract violations is irrelevant. The government could vigorously prosecute where conduct crosses the line to criminal accounting practices, lieing under oath, and so on, and this would help a great deal whether there is a proven monopoly or not.
Sure, some of it, at least a little, can be blamed on various artist's stupidity. Put a clause in your recording contract that says there will be bowls of all green M&Ms available at all times on the soundstage, and you can expect to pay very dearly for it. Fair enough, but not nearly all the artists are that stupid. Which seems more likely, that there are so many artists too stupid to realize the risks, or that many of them do know they are going to get screwed, but feel like all better alternatives are closed off to them, and hope to be the one who isn't screwed too badly.
Prior post amounts to saying "show me a successful white collar criminal who turned to blue collar methods when they didn't have to, or agree I'm right!" I'm rather surprised you're rebutting only one part of it and letting the rest stand.
Re:Sadly.... (Score:3, Interesting)
"It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales."
It's much worse than you think. I'm at the director level for a company that makes PC peripherals. I'm in charge of $40MM of business a year, yet my employment contract (which I was "forced into" in the same sense that artists are "forced into" recording contracts) includes a salary that isn't one hundredth of that amount. I've probably been responsible for half a billion dollars of sales, yet I'm firmly in the middle class.
I believe that everybody should pirate as much music as their hard drive will hold, if they feel that it's the right thing to do. "I pirate to save money" or "I pirate because I give fuck all about respecting the rights of somebody whom I haven't even met" are good rationalizations for doing so. Inequities in contract negotiations aren't a particularly good rationalization, as that's something that we all have experience with -- on both sides of the desk.
Re:Question (Score:3, Interesting)
How far can it go before a judge orders the Sheriff to go down to the RIAA headquarters and begin to auction off their property to pay the judgement? That's what would happen if an individual "just sat on a judgement" against him.
Re:Hey, RIAA (Score:5, Interesting)
And for the past decade or so, they've been succeeding.
Re:Sadly.... (Score:3, Interesting)
The industry of identifying and distributing recorded music no longer requires the billions of dollars currently invested in it. Recording is cheaper than it's ever been -- not that that was responsible for most of the markup in the first place -- and the problem of distribution is more solved than the RIAA would care to discuss. If it weren't for the RIAA's additional efforts to stifle online and independent radio, and other forums for finding new music, that source of value in the industry would also be considerably leaner.
Now, identifying who's good and who sucks has value. We're used to seeing creative content spoonfed to consumers by some industry, since that's how music, movies, and print publishing have always been. But what about websites? The Web is a content industry that sprung up without an industry to be its cheerleader: You wouldn't expect a WWWAA to select the "best" websites for us, advertise them, and tack on a commission for the service -- and still be the primary way to access web pages. You can use a search engine, can't you?
It should and will be the same with any digitized content, eventually. A combination of Musician's Friend and Google can effectively replace 95% of the existing recording industry.
However, musicians still often seem a little obsessed with the glamor of the old way. It's not as fun to tour in a beat-up van for years and know you'll never be on Cribs. That's not hot. We like watching a few lucky musicians become stupidly rich, then maybe realize they don't actually have that much in the bank and go broke 3 years later. The old content industry is much better at delivering tabloid material and meteoric rise-to-fame, crash-and-burn stories, the ones that let one-hit wonders live like Al Pacino in Scarface for exactly 18 months, nail twins, and burn their own mansions to the ground. That's why I learned guitar in the first place. It's probably why most people pay attention to popular music. We'll have more independent music in the new digital era, but we won't have the flagrant, unsustainable insanity that piques the public interest. E! will die.
Re:Sadly.... (Score:3, Interesting)
I hope internet radio isn't part of the new and unexpected threat, since recent changes in royalty rules (retroactive to 1-Jan) are going to put most of those independent outlets off-the-net.
Re:Unequal income litigation (Score:3, Interesting)
This won't work, and here's why:
Most cases, say 98% or so, never make it to trial. Why? If the lawyers figure out that one side or the other had a clear advantage, they will settle, because it's in their clients' respective best interests. So going to trial is (usually, roughly) a coin flip. Which is how it should be: you go to trial because both sides have good arguments and you need a neutral third party to analyze (judge) the relative merits of both sides and render a decision. (And don't forget, the overwhelmingly vast majority of the RIAA cases settle. Why? Because the defendants really did violate the copyright law, and they know it.)
Now on top of that you want to impose a system-wide penalty, where if you lose the coin flip you're out twice as much? That's going to act as a disincentive for people with legitimate problems to seek help in the courts. People will only sue if they think they have such an overwhelming advantage that they must win (and the case will likely settle anyway). This keeps close cases out of courts, which is exactly contrary to a primary purpose of the court system (namely, to decide close cases).
Plaintiffs do this already.
Criminal cases are about more than the harm the defendant allegedly did against the victim, they're about the harm to everyone else. If you are robbed, that sucks for you, but it also sucks for your neighbors who are now scared about being robbed, property prices fall, more cops are needed to patrol your area, etc. etc. Which is why criminal cases are brought by the State, not the victim. The public policies behind crime have little to do with the defendant's ability to pay.
Go down to your local District Attorney's office some day. Really, call up and schedule an appointment. I'm sure they'd be thrilled to know that a random member of the public is taking personal interest in what they do. Ask them how many cases they've called dozens of expensive expert witnesses on. Heck, ask them how many cases they've called more than three witnesses on, where two were at the scene and one was the cop who wrote up the report. They just don't have the money.
Seriously, more people should do this. Courts are open to the public, but the public doesn't show up. Then people say the system is all wrong and needs to change.
Leaving aside the argumentum ad lazarum [infidels.org] implication, I ask you this question: would you rather have a justice system where everyone can afford quick-and-dirty justice, where complex issues are resolved by each side getting 5 or 10 minutes to talk, where judges take a few minutes and rule from the bench? Or do you want a system where people take the time and energy and money to do things fairly, where both sides have the chance to address all of the issues, where everyone has a chance to be heard?
Being fair and impartial is HARD. For the most minuscule example, read the Federal Rules of Evidence [cornell.edu]. An example: hearsay. In order to avoid the problem of "he said-she said", the rules are that witnesses can't generally talk about what someone el
Re:Sadly.... (Score:2, Interesting)
What the RIAA...MPAA & other outdated business models fail to understand is the role history will play in their demise. The prime example is that of rail & bus passenger travel in America. Any question about this...look at the train/bus routes & the cost of traveling these ways 20-50 years ago.
The RIAA HAS no principles (Score:3, Interesting)
Re:Sadly.... (Score:2, Interesting)
Actually, I think it's kinda sad that the GP, easily the most insightful post I've seen in several weeks on an RIAA thread, is rated funny, and that he will get no karma and little respect for his ironic insight.