US Dept. of Justice May Intervene To Help RIAA 215
NewYorkCountryLawyer writes "In a Corpus Christi, Texas, case, Atlantic v. Boggs, where the defendant interposed a counterclaim alleging that the RIAA's $750-per-song file damages theory is unconstitutional, and the RIAA moved to dismiss the counterclaim, the US Department of Justice has sought and obtained an extension of time in which to decide whether to intervene in the case on the side of the RIAA. What probably precipitated the issue is that the constitutional question was raised not just as a defense as it was in UMG v. Lindor, but as a counterclaim, thus prompting a dismissal motion by the RIAA."
An excellent idea (Score:5, Funny)
Re:An excellent idea (Score:5, Insightful)
Re:An excellent idea (Score:4, Funny)
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Re:You forget you can't spell DMCA without the *D* (Score:5, Insightful)
Unlike the Soviets, the Republicrat Party has convinced the citizens of the USSA that their vote does indeed count (at least the 45% of the citizens of the USSA who actually go to the polls). And they have convinced the 45% who go to the polls that the 55% who don't are apathetic. Well actually they are, who cares which one wins when neither has our interests at heart?
The corporations, each and every one of them, finance the USSA's elections 100%. Each corporation "contributes" to both wings of The Party.
When that great American corporation Sony can "donate" to both major parties of an election, it doesn't care who loses, Sony wins.
Shortly after they start snowball fighting in hell there will be two laws passed.
-mcgrew (splitting my vote vetween the Libertarians and Greens. I won't waste my vote on someone who not only doesn't represent me, but represents those whose interests are diametrically opposed to mine).
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Reporter: "Will things get better now that the Taliban have gone and the N.Alliance has taken control of this area?"
Refugee: "The Taliban ask questions and shoot. The N. Alliance shoot and ask questions." (paraphrased)
Two (Score:5, Funny)
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"Sure, the high tech industry produces more revenue and innovation than the entertainment industry, but when it comes right down to it, we still prefer to snort our cocaine from between Titney's Pears than from the Commander's Taco. Can you really blame us?"
- Bipartisan Statement: Sen. Porkin' Hitch (D-isney), Sen. Serious Tubes (R-IAA)
Re:Two (Score:4, Funny)
* or Microsoft, Sony, MPAA, SCO, rms,
Re:Two (Score:5, Funny)
The forces of Rohan destroy the army of Eisengard. The Ents destroy Eisengard itself. A bunch of ghosts destroy the armies of Minas Morgol and then two little guys with furry feet cause Mordor to implode by destroying a ring.
Which leads us to the conclusion that if the US DoJ & the RIAA represent Isengard and Minas Morgol, they will eventually lose, although Sean Bean will die in the process.
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Samwise went on to be mayor of the Shire for 49 years after the ring was destroyed. He died several years later.
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Perhaps someone fears allusion over illusion...
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It was meant to be part funny, but mostly serious. To me, the RIAA and DoJ are juggernauts. What chance does the little guy have? I think more and more, entities are having to choose a side in this thing. It will be the little guy, at the end of the day, who will decide the final outcome. No matter how huge and seemingly impossible to defeat these powers may be, they cannot stop the change in media that has been happening, and that will
Burden in counterclaim? (Score:5, Insightful)
DoJ is helping out a huge corporation?! (Score:5, Interesting)
Maybe I'm missing something here...
Re:DoJ is helping out a huge corporation?! (Score:5, Informative)
Simple. It's the golden rule: he who has the gold makes the rules. Translated another way, those who pay the most in bribes^H^H^H^H^H^Hcampaign contributions and protection money^W^Wtaxes get the most protection.
*sigh*
Re:DoJ is helping out a huge corporation?! (Score:5, Insightful)
Anything that's Good For The Economy is what Must Be Done. All other pursuits, goals, and ideals of this country are secondary to The Economy.
Re:DoJ is helping out a huge corporation?! (Score:4, Insightful)
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Well, that's what happens when you proceed to take anti-economical actions (e.g. anything political) "for the good of the economy". Just because economic improvement is their excuse (and maybe their goal) does not mean that political means are suited to achieving such an end.
The use of economic (non-aggressive) means strengthens the economy. P
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Now and again he does: Civil Rights Act of 1964 [wikipedia.org],
Re:DoJ is helping out a huge corporation?! (Score:5, Insightful)
Re:DoJ is helping out a huge corporation?! (Score:5, Insightful)
Maybe I'm missing something here...
You're not missing anything.
The government doesn't even pretend to be on the side of the 'little guy' anymore.
They used to at least give lip service to the idea, but now they don't even try to hide their kleptocracy.
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Re:Burden in counterclaim? (Score:5, Informative)
While on one hand this is a case where the government is defending a law that helps the RIAA, the intervention would have happened regardless of whether the record companies were involved because the government has a duty to defend its laws.
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How funny... On my country, the government has the burden to defend the constitution.
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Whether the law is constitutional is really a question of law, not a question of fact. Normally, when we talk about the "Burden of Proof," we are concerned with questions of fact. So, for example, "Did the suspect kill the victim" is a factual question that goes to the jury. "Is murder illegal?" is a legal question, and stays with the judge.
This is a question of law: both sides will say why it is/isn't constitutional, and the judge will have to pick which side is correct (or come
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This is just nuts.
So much for the government working for the people (Score:5, Interesting)
This is disgusting. The RIAA goes around harassing random people on the net (with no real evidence to show they were filesharing) and demands an outrageous amount of money per song, and the government continues to *HELP* them do this?
ARRRGGHHH!!
Hello politicians:
We voted for you.
You work for us.
We want you to tell the RIAA to f**k off.
These thugs are harassing people YOU represent and you are letting them.
Stop being corrupt money-grubbing assholes and help us.
(of course I'm not so naive to think politicians will ever actually listen to us, but one can dream right?)
Re:So much for the government working for the peop (Score:5, Insightful)
Re:So much for the government working for the peop (Score:5, Insightful)
Did you really vote? If so it is a matter of record that the politicians can look up.
"You work for us."
They only work for voters and supporters. The best way to get your opinion heard is to vote and contribute to campaigns. BTW, contributing to the opposing candidate works too. Campaign contributions are a matter of public record. If you say "I will support your opponent in the next elections." they can check if you have ever supported any candidates before. If not they will treat it as an empty threat.
"We want you to tell the RIAA to f**k off."
Have you actually told your congressman this? I email [house.gov] my congressman regularly on issues that are important to me. I hope you do as well.
Re:So much for the government working for the peop (Score:5, Insightful)
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I disagree. My father was a career politician. I know some congressmen. It is true that they do not read all their email. A staffer reads it and
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Instead of asking for donations for ads in the Times, you could all pool your money and buy a legislator.
Buy enough of those and you could form the "Geek Caucus".
Re:So much for the government working for the peop (Score:2, Interesting)
The RIAA campaigned for laws that were in the best interest of their respective shareholders. Copyright laws were passed. The RIAA issues lawsuits based on those laws. The Department of Justice carries out the letter of the law. There is no reason to complain about entities that continue to function as they were intended.
Personally, I would be displeased with actions of the RIAA if I was a shareholder. I do not believe that I ever will be, however, as the standard bu
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I understand; Slashbots are supposed to react to both the RIAA and politicians with knee-jerk indignation, regardless of how little they understand the matter at hand.
Re:So much for the government working for the peop (Score:2)
You and I common Citizens are only allowed to live free because of our >50% probability of making rich people richer. Our society is set up so that as soon as it looks like we are not going to be a net positive benefit to the wealthy/powerful we are conveniently found violating some law and thrown into jail.
I am just going to state the obvious... (Score:2)
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Folks around here have been saying that the "sell stuff for a profit" model is dead for the record industry for almost a decade now. But I rarely see people hazard a guess as to when this will happen. Legitimate download resellers like iTunes are making a ton of cash, and I think most Slashdotters would claim that piracy doesn't actually significantly affect record sales, so we can't say that it's piracy that will kill the beast.
Perhaps you're claiming that this will be the case because the market will be
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Second, yes, individual song purchases are what are hurting the music industry right now... There is little doubt here on the investor side.. Eventhough their gross margins has plunged > 10% per year, the number of individual song downloads have grown > 500% last year. The accepted reason for the margin contraction, though, is that the increa
the DoJ is required to consider it (Score:5, Informative)
from the Plaintiff's answer and counterclaim:
"Rule 24(c) further provides that "[a] party challenging the constitutionality of legislation should call the attention of the court to its consequential duty" to notify the Attorney General of the United Sates under 28 U.S.C. 2403. Defendant Boggs therefore is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c)."
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Just as the Plaintiff is required to notify the court and the DoJ
from the Plaintiff's answer and counterclaim:
"Rule 24(c) further provides that "[a] party challenging the constitutionality of legislation should call the attention of the court to its consequential duty" to notify the Attorney General of the United Sates under 28 U.S.C. 2403. Defendant Boggs therefore is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c)."
I'd give you mod points if I had them.
Re:the DoJ is required to consider it (Score:4, Informative)
If I'm understanding the scenario correctly, the counterclaim is saying to the RIAA "you have done something unconstitutional, and now I am going to seek damages from you because of it"; but the RIAA is replying "well, what we've done is federal law. If you say it's unconstitutional, we've got to get the Department of Justice involved".
Am I grossly misunderstanding this? It sounds more like the DoJ is "getting dragged into it" than "intervening" unless "intervene" is the proper legal term for this situation. I can see where there might be confusion caused by the use of that word.
Re:the DoJ is required to consider it (Score:5, Informative)
Here is the paragraph above the one i initially posted wherein the defendant challenges the whole copyright damages provision:
"Pursuant to Rule 24(c) of the Federal Rules of Civil Procedure, Defendant Boggs is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c). Pursuant to Rule 24(c), "when the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28 U.S.C. 2403." Section 2403 of Title 28 requires that when the constitutionality of a federal statute "affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.""
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It's why most littering fines are in the "outrageous" category. Does it cost $1,000 to pick up an em
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On topic, those of us in Virginia are variously upset over civil penalties for a variety of traffic violations. They start @ $1000 and go up from there.
So, yes moderately disproportionate penalties are a deterrent, but at a certain point they becom
Will someone PLEASE mod the parent up? (Score:5, Interesting)
FWIW, this document is wonderful reading. The lawyer is throwing every book on his shelf at the RIAA, and when he runs out he heads over to Barnes and Noble and keeps chucking. He's got everything from Lachs, Estoppel, Waivers, Unclean Hands, Racketeering, Statue of Limitations, Failure to Mitigate, Copyright Misuse, Failure to register copyrights, Failure to prove copyrights, Failure to provide notice of a subpoena, insufficient service of process, failure to join necessary and indispensable parties, lack of standing, failure to state a claim, and good God my fingers are getting tired.
If this document is any indication of the caliber of lawyer Mr. Boggs has hired, than I'd say the RIAA will soon be running away at top speed with its tail between its legs. Huzzah!
MOD PARENT UP (Score:2)
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I'll say. You've got the lawyer tossing some guy named Lachs and a hefty Statue of Limitations at the plaintiffs. That's gotta smart.
How is $750 per song unconstitutional? (Score:4, Interesting)
Re:How is $750 per song unconstitutional? (Score:5, Interesting)
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The federal government can't cruelly or unusually punish you, this doesn't apply to civil situations between individuals.
The language is:
Of course, the sentence is in the passive voice, so it relies on interpretation, but its in the middle of a bunch of laws that spell out limitations of federal power, so this is probably how it gets interpreted. Amendment VII, which guarantees just about every
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The $750 isn't a criminal fine imposed by the government, it's the RIAA's claim of damages. They can sue you for a billion dollars for talking smack about Moby if they want, and if you ignore the summons, they'd win.
RIAA is not the government (yet). The Constitution of the United States defines the powers of the US federal government, and defines the freedoms of individuals in terms of what the government can't do. It has nothing to do with plaintiffs in civil suits. If you can find some theory that say
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The question of the constitution specifying what the government can't do is answered by the fact that it was the government that passed the law imposing these "fines"
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-Rick
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In civil cases, the plaintiff is only allowed to recover compensatory damages by statute. At the judges discretion, the plaintiff may also be awarded punitive damages [jrank.org] based on the severity of the willful misconduct. Conduct in good faith should not be punished by punitive damages.
The word you're looking for is "excessive p
Re:How is $750 per song unconstitutional? (Score:5, Informative)
Twinkies don't work that way (Score:2)
If people just get fined retail value when they steal something, then there is no punitive/discouragement factor.
Need/want something? Try to steal it. If you get busted then you pay the ticket price and mutter something about bad luck. Clearly that won't work.
There needs to be some sort of punitive damages to discourage further activity. $750 per song is probably a bit steep, but charging any reasonable flat rate per song
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Yes, that's right. We've got rampant tort reform to defend insurance companies but never dare do the same for the common man. Companies are supposed to be rewarded for being crass and amoral. Mere mortals deserve all the punishment that the state can muster.
We could follow the model of tort suits I have alluded to and use the common standard of 3x the actual damages.
Even that would have some relation to actual harm rather than some mis
Re:Twinkies don't work that way (Score:5, Insightful)
Apparently neither do you.
If people just get fined retail value when they steal something, then there is no punitive/discouragement factor.
You are absolutely correct. A punishment component is both reasonable and required.
So for stealing a twinkie, $1.00 for the twinkie and $750 punitive fine is a perfectly reasonable judgement. However, if you stole a case of 100 twinkies instead of just one, what should your penalty be then? Would it be say, a single conviction, with a judgement of $100 for the twinkies plus $750 punitive fine or maybe even $800 or $900 in punitive damages? That seems fair to me.
Or would it be 100 convictions, each with a separate fine of $1 + $750 resulting in a $75,000 fine for stealing 100 twinkies.
THAT is how copyright infringement penalties works. There is a statutory $750 fine for each work that is infringed. The courts can't lower that amount, that minimum is right in the law.
There needs to be some sort of punitive damages to discourage further activity. $750 per song is probably a bit steep, but charging any reasonable flat rate per song is probably a crazy way to address the issue. Perhaps they should fine $1 per song plus some punitive damages ($500 for up to 10 songs, $1000 for more).
Yes. But their isn't, and the courts can't apply that scale even if they wanted to. The law requires that they be charged $750 per title infringed. Of course the RIAA is willing to 'settle' for far less... their 'good guys' after all.
But in the final analysis, a law that requires $375,000 in punitive damages for putting a few dozen cds on a web server, when the songs can be bought on itunes for $1 each is massively excessive, and that excessiveness can render it unconstitutional.
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There's one part you're leaving out, though, and that's the fact that putting a track from a CD onto a Web server is not necessarily the "final" act of copyright infringement. If you just ripped the track and put it on your iPod, that's one thing. That might
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1. What you're arguing for is that file sharers only pay compensatory damages. So if there were only 10 songs in play, then the defendant should only have to pay $10 because that's the RIAA's actual loss. The problem is that there is a good case to be made for punitive damages too, and I believe that's what the law speaks to. The FBI warning at the beginning of your DVD says that you can be fined $100,000 not because that's how much the MPAA
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You're not paying $500 per Twinkie, though (Score:2)
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If you steal the twinkies in the knowledge that there is only a 1% chance you'll be caught, then being charged $500 if you do get caught seems fair to me (although I don't think the law allows this argument. IANAL.)
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This is so not news. (Score:5, Informative)
The background is that, as part of his defence (and a counterclaim), the defendant in the RIAA suit has said that (1) not only is he innocent, but (2) the act of Congress establishing the basis under which he was sued is unconstitutional. That's certainly going for the Moon.
In any case in which a Federal law might be declared unconstitutional, not surprisingly the Federal Gov't takes an interest, and might decide to defend the constitutionality of the law. Should they succeed, that does not mean the defendant loses, of course. It only means he can't get a bye, in the sense that the very law under which he was charged vanishes.
The only thing unique about this case is that the Federal Gov't asserts that it did not previously receive sufficient notice of the case to have time to decide, in the routine way, whether or not to defend the constitutionality of the law in question. So they filed a motion with the Court asking for 60 days to think it over. This motion was unopposed by the defendant, who apparently realizes (at least more so than certain credulous
I mean, unless you're so naive as to think that the argument in Court will go like this:
RIAA (pointing skeletal finger): You broke the law, fiend!
Defendant: Did not. And besides, the law's unjust and should not exist.
Judge: Really? What makes you think so?
Defendant: Well, I...
Uncle Sam (interrupting): Hold on thar a gosh-darned minute! I say that law is fair!
Judge (bowing to Uncle Sam): Well, in THAT case, it must be. Defendent, you lose.
Defendant: Curses! If only Uncle Sam hadn't known about this trial...
RIAA (twirls mustache): Ha ha ha!
While it may be going for the moon (Score:3, Insightful)
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I'm glad someone is finally pushing the issue of the excessive fines.
Me too.
Actually what I'd really like to see challenged is copyright lengths themselves. The Constitution has something to say on that as well ...
Sadly, that was already brought to the US Supreme Court, and it lost. The court found that a finite extension to copyright terms didn't actually make them "unlimited", even if they were so in practice. Ultimately, future Congresses would have to continue to decide to extend the period, or things would begin to expire, and that meant that, not only would the period always be "limited", but that it would also be re-negotiated by multiple sets of representatives of the people, each time allowing the p
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If the GP is interested, the case is Eldred v. Ashcroft [wikipedia.org].
Why not a class-action against the RIAA? (Score:2, Interesting)
Could someone file a class-action against the RIAA and/or Mediasentry since apparently everyone in the US is at risk for their extortion practices? The class would be everyone in the US, or everyone in the US with Internet access, who has NOT been targeted by the RIAA... Since the RIAA's tactics are becoming public knowledge as people have defended themselves and counter-sued, and since Mediasentry amounts to nothing more than a bunch of computer hackers, would thi
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How Exactly Does That Work? (Score:2)
1. It's likely we'll never know because few, care enough about their government enough to pay attention. They are marginalized as "special interest groups."
2. Still. Who calls who(m?) in this situation.
Similarly, I'd love to know who called who(m?) when the whole RIM patent case was in-process to have the patents in question magically invalidated.
End Note: grammar nazis, please do the following:
1. correct my usage of who/whom in this pos
And here we have Eminem suing Apply for copyright (Score:3, Interesting)
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Counterclaim: RIAA = Cartel (Score:4, Interesting)
These Cases Should Never Be Getting This Far (Score:5, Interesting)
These cases should never have gotten past the John Doe/Ex Parte stage. You know, that point where the RIAA goes to court in secret, files a case they never intend to pursue, and sues dozens of John Doe IP addresses just to force ISPs to have to release private identity information that they can't get otherwise. These cases should be opposed at that point on all of the following basis -- as well as other's I can't even think of. For a good starting point, however, attack the RIAA at this point where their case is the weakest on the following points:
Failure to state a claim upon which relief can be granted. What the RIAA is claiming is not actionable under current law.
Using unlicensed investigators in the state where the defendant resides. Media Sentry is not licensed to perform investigations in most states, and some right-minded states have laws against this. In short, any evidence provided is tainted.
The illegal joinder of otherwise unrelated defendants. This has been ruled against already by a federal judge in Texas.
The requirement to turn over identity information as justified by the Cable Act of 1984. A judge in a case against one of the colleges shot this one down, pointing out that many of these systems aren't actually cable networks, and that even if they are, that the requirement to turn over subscriber information means only to the federal government itself. The RIAA should be suing under the DCMA, which only allows them to issue take-down notices. In short, there is no law supporting the turning over of subscriber identities to the RIAA in the first place.
John Doe defendants may not reside in areas under the jurisdiction of this court, and as such the court has no right to reveal their private information. Any information turned over by an ISP should go directly to the judge, and he (she) says absolutely NOTHING about any identity outside of its jurisdiction.
The whole John Doe process from the beginning is a fraud on the court, because the RIAA has no intention of using the information gleaned in the instant case. Once they have it, they instead take it and attempt to extort money from thousands of people with threats, lies, and intimidation. The courts should be no part of this. All identity information revealed should only be allowed to be used in the case it was revealed as part of.
The RIAA's contentions of continuous and ongoing copyright infringement are not at all supported by the facts, which show only a snapshot of a single instance at one point in time. This lie was uncovered when the computer in question actually was destroyed in a fire MONTHS BEFORE the RIAA contended that the infringement they'd detected was still ongoing. This was an apparent fraud to get around the statute of limitations, which would have expired otherwise. The RIAA should be SEVERELY sanctioned, and all their cases thrown out of court, over this contention. At the very least, they should have to prove more than once instance with the same user before being allowed to make this bald faced lie!
The RIAA's arguments of irreparable harm have been ruled as exaggerations by one judge recently, on the basis of that they are easily compensated by money. In short, another exaggeration that rises to the level of another bald faced lie!
The RIAA's dogged contention that identification of the Internet account holder leads inevitably to the identification of the copyright infringer is deeply flawed. As such, they end up extorting and harassing many innocent people. Better evidence must be provided before subjecting ANYBODY to their "driftnet litigation process".
The RIAA is yet to present any evidence to show that their evidence collection methods are flawless, while there are many examples of them suing the wrong people based in this collection method. In short, they haven't provided sufficient good evidence to be allowed to continue with what they're continuing with.
The RIAA's belief
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"Why do you assume the justice dept will be on the RIAA side or even choose to intervene at all?
The docs state the 60 days were not apposed by the defendent. "
Because the site linked to says that the feds will intervene on the side of the RIAA. But really, was anyone expecting otherwise?
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It says "may intervene".
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Ray, stop it. I'm trying to foment a gallon of bile and correcting people with facts doesn't help me.
--
BMO "I have never come upon a post which makes its point so excellently, and also contains so many F-words." - Bruce Perens
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"If the RIAA questioned the constitutionality of a federal law, the DOJ would defend it."
Nope. Even the article notes that the DoJ "might" intervene - its NOT mandatory, as you imply. They can pick and choose what federal laws to defend, and how to defend them, so don't hold your breath naively expecting them to act in a non-political matter. they'll do what is healthy for their careers, not what's healthy for the public.
Re:With respect to RIVTH (Score:4, Interesting)
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"Surely theoretically, if the RIAA sues someone, and taht person had never bought an album, then there is good reason to beleive the person would never buy any of the songs, so the RIAA has lost nothing, and therefore has nothing to sue for.....?"
The whole point is whether the $750-per-work statutory damage is constitutional. Statutory is the key here. I think you may be confusing this with compensatory, or as USC17 puts it, "actual" damage.
Enforcement of copyright law does not require proof of moneta
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"That's exactly what is happening here: the RIAA is suing for 750% of the perceived value of the good stolen. This is absurd, and there are probably some judges who would agree."
Huh? That's the minimum statutory damage per work as defined by law. The RIAA is legally allowed to claim up to $30K per work.
Understand that this is per work, not per "copy of work." If you have a song in your share directory and it's downloaded 1,000 times, the RIAA is still likely to only go after you for $750 for that work
Re:What happened (Score:4, Informative)
You can blame the industrial revolution for the concentration of wealth and power in our democratic capitalistic society.
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