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US Dept. of Justice May Intervene To Help RIAA 215

Posted by kdawson from the big-guns-in-the-wings dept.
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."
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US Dept. of Justice May Intervene To Help RIAA More

US Dept. of Justice May Intervene To Help RIAA

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  • An excellent idea (Score:5, Funny)

    by Anonymous Coward on Tuesday July 31, 2007 @01:59PM (#20060431)
    As well they should! It is well known that pirates are destroying the Intellectual Property of our Great Nation. They avoid detection using illegal hacker tools like poxie servers [shelleytherepublican.com]. They try to impose their communist agenda by using European software like Linux [shelleytherepublican.com] and satanic browsers like Firefox [shelleytherepublican.com]. Also, the DOJ is under grave pressure from activist judges who don't like the fact that Alberto Gonzales is a Mexian immigrant [shelleytherepublican.com]. This should give the lie-beral Democ-rats something to think about!

    • Re:An excellent idea (Score:5, Insightful)

      by SoulRider ( 148285 ) on Tuesday July 31, 2007 @03:10PM (#20061487)
      Damn, if that site isnt satire Im buying a gun.

    • Re: (Score:3, Insightful)

      by merreborn ( 853723 )
      The reader comments on STR are pretty sad. Apparently your average blog reader is too dim to grasp satire.

  • Two (Score:5, Funny)

    by Himring ( 646324 ) on Tuesday July 31, 2007 @02:02PM (#20060507) Homepage Journal
    "Who can resist the union of the two towers." --Saruman

    • Re:Two (Score:5, Funny)

      by Tackhead ( 54550 ) on Tuesday July 31, 2007 @02:17PM (#20060767)
      > "Who can resist the union of the two towers." --Saruman

      "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:5, Funny)

      by Anonymous Cowpat ( 788193 ) on Tuesday July 31, 2007 @02:26PM (#20060885) Journal
      plot spoiler:

      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.

  • Burden in counterclaim? (Score:5, Insightful)

    by EveryNickIsTaken ( 1054794 ) on Tuesday July 31, 2007 @02:04PM (#20060527)
    Is it now the responsibility of the RIAA / US DOJ to show that the $750/song is constitutional? Or is it the defendant's responsibility to show it is unconstitutional? How would this work?

    • DoJ is helping out a huge corporation?! (Score:5, Interesting)

      by FatSean ( 18753 ) on Tuesday July 31, 2007 @02:07PM (#20060581) Homepage Journal
      How funny that our tax dollars are being used to help a beligerant corporation make it's case, but why doesn't the common citizen get such help?

      Maybe I'm missing something here...

    • Re: (Score:3, Insightful)

      by JamesRose ( 1062530 )
      Generally the person making the claim has to prove that the claim they are making is true, not the otherway round. If it were used in the persons defence against the RIAA that 750/song was unconstitutional then it may be the other way round, but IANAL.
      • Never the less, it seems like a high bar for the defendant to meet (having set it up for himself). The only argument that I can think of that goes in his favor is an argument concerning the "equal protection under the law" clause whereby he would argue that he is unfairly being singled out for a higher amount than would usually be demanded of any other defendant in a similar situation due to some factor which is external to the matter at hand. However, the RIAA appears to treat all of its targets with equal

    • Re:Burden in counterclaim? (Score:5, Informative)

      by Anonymous Coward on Tuesday July 31, 2007 @02:08PM (#20060603)
      IANAL. However, I don't believe that this should be unexpected. The Department of Justice occasionally intervenes in cases when someone challenges a federal law in a civil lawsuit. Federal law in some cases requires a party to notify the Attorney General when they intend to challenge the constitutionality of a federal law. The defendant, having challenged the law, has a burden to show that the law is unconstitutional, and then the government has the burden to defend the law.

      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.

      • "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."

        How funny... On my country, the government has the burden to defend the constitution.

    • Re: (Score:2)

      by cfulmer ( 3166 )
      That's a little confused:

      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

    • Re: (Score:2)

      by nurb432 ( 527695 )
      The tables turn when the people involved have lots of money and have paid off key people in washington.

      This is just nuts.

  • So much for the government working for the people (Score:5, Interesting)

    by ZorinLynx ( 31751 ) on Tuesday July 31, 2007 @02:06PM (#20060553) Homepage
    Unless you're an executive for a major coporation of course...

    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?)
    • You know the REAL problem here? Is they DON'T work for you, and they don't really CARE what you say you want. And the kicker is, they will likely STILL get reelected.

    • Re:So much for the government working for the peop (Score:5, Insightful)

      by krgallagher ( 743575 ) on Tuesday July 31, 2007 @02:31PM (#20060979) Homepage
      "We voted for you."

      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)

        by Danse ( 1026 ) on Tuesday July 31, 2007 @03:00PM (#20061359)

        They only work for voters and supporters
        No, they only work for supporters. They will comply with voters if enough of them raise a big enough stink. That's largely what's wrong with government today. It's all about the money. Career politicians, corporations and lobbyists are running the show, and people keep voting them back into office, or at best replacing one career politician with another. This is, in turn, largely due to the ridiculous election system we have, along with gerrymandering to keep incumbents safe. We need a lot of changes if things are ever going to get better.
      • Congressmen do not read their emails. *maybe* a staffer will read the email and send a form response. But if you think sending emails makes a difference, then you're living in a fantasy land. Campaign donations can make a difference, but only if you making large enough contributions to get invited to some of their fundraising dinners and get some face time. If your congressman does not recognize you on sight, your not making any difference in their policy decisions.
        • "Congressmen do not read their emails. *maybe* a staffer will read the email and send a form response. But if you think sending emails makes a difference, then you're living in a fantasy land. Campaign donations can make a difference, but only if you making large enough contributions to get invited to some of their fundraising[sic]dinners and get some face time."

          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

      • In the US they can't determine who you voted for, only whether you did or not.
    • That is not how this system works.

      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

    • Re: (Score:3, Insightful)

      by goldspider ( 445116 )
      This [slashdot.org]

      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.
    • Are you kidding?

      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.
  • The old music business model is over RIAA... Yes, I know that for a while you made allot of money by forcing overpriced albums down the throats of the consumer who never wanted just albums, but it is over now... Technology and communication has destroyed you business of "we make our money by making it available to you" type distribution model... To fear to bad, as most software companies are realizing the same thing... The key thing to remember, though, RIAA, is that no matter how hard you sue, or the sheer

    • Re: (Score:3, Interesting)

      by shark72 ( 702619 )

      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

      • I doubt the record industry will ever go away.. There is a definite need for music as everyone you see is listening to music. If I was to guess, though, you will see further consolidation and contraction until it eventually goes back to the early days of a large number of artists making niche market music. In fact, many of the artists you see today are definitely moving down this path.. I also do not think that the record companies will go away because there definitely is a need for them as well. They ar

    • Re: (Score:3, Interesting)

      by shrikel ( 535309 )
      Okay, this is just ridiculous. How many times on Slashdot have I heard the argument that the RIAA "forc[ed] overpriced albums down the throats of the consumer"? People have a choice whether to buy the album or not. If you buy music that way, you are supporting the business model. If you download the music, you are breaking the law. But there are other options available to you. You can buy independent lables' music. You can listen to the radio (at least for the moment). You can choose to do other thi
      • First, all downloading music is not illegal... Meaning, I have bought allot of songs from iTunes and I certainly would not consider myself stealing music.... :-)

        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)

    by conspirator57 ( 1123519 ) on Tuesday July 31, 2007 @02:10PM (#20060641)
    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)."

    • Re: (Score:2)

      by Knara ( 9377 )

      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)

      by zarkill ( 1100367 ) on Tuesday July 31, 2007 @02:23PM (#20060843)
      I think using the word "intervene" makes it sound like the DoJ is taking it upon themselves to step in, say "no, you can't countersue the RIAA", and that will be the end of the story.

      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)

        by conspirator57 ( 1123519 ) on Tuesday July 31, 2007 @02:41PM (#20061113)
        Actually, the defendant is challenging the Constitutionality of the damages portion of the Copyright Act. Since this has broad and sweeping consequences, the result is an engraved invitation to the DoJ to attempt to preserve the status quo. This assumes that the status quo is generally desirable, and in many areas of law, it is.

        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.""

        • Re: (Score:2)

          by shmlco ( 594907 )
          Damages are always excessive because they're applied after the fact, as a punitive measure, and because they're also intended act as a deterent. If all you paid was the actual cost of goods your tried to steal, then you might as well go into Best Buy and try to walk out with that disc under your coat. Best case, you get a free disc. Worse case, you pay no more than you would have paid at the checkout counter.

          It's why most littering fines are in the "outrageous" category. Does it cost $1,000 to pick up an em

          • Re: (Score:3, Insightful)

            by conspirator57 ( 1123519 )
            Yes, but there is a soft societal limit to "outrageous." For moneylenders, we call this usury. Obviously this varies according to your society. In Japan, usury used to begin @ 100% interest. In the US, it's typically ~30%. A bit off topic, but a good example.

            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
    • It wasn't the plantiff (RIAA) that called in the federal dogs, it was the defendent. I'm reading through the defense's response and counterclaims right now. The issue is that the law requires that the Feds be notified about an accusation of an unconstitutional claim. The dependent therefore demanded that the government intervene to decide on the RIAA's claimed price of $750.

      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!
      • If only I had mod points for both you and the post above right now.

  • How is $750 per song unconstitutional? (Score:4, Interesting)

    by CyberBill ( 526285 ) on Tuesday July 31, 2007 @02:12PM (#20060665)
    Sorry guys, but I agree with the judges. There is nothing in the constitution that says the RIAA can't sue you for however much they want to. It doesn't mean they'll get it (that amount is up to the judge) but there is no way its unconstitutional. I think they should charge people $1 per song, thats how much you can buy a fucking song for on iTunes. If I steal a box of twinkies that costs $5, and people see me do it and they go and steal another 99 boxes, I don't have to pay $500 to pay for them all, just the $5 for the one I stole.

    • Re:How is $750 per song unconstitutional? (Score:5, Interesting)

      by AuMatar ( 183847 ) on Tuesday July 31, 2007 @02:15PM (#20060721)
      They can only sue you for what the law allows them to. You could make an argument that $750 a song, when the songs are sold for $1, is cruel and unusual punishment. No idea if this would work, but you could definitely argue it.

      • Re: (Score:3, Informative)

        by iluvcapra ( 782887 )

        The federal government can't cruelly or unusually punish you, this doesn't apply to civil situations between individuals.

        The language is:

        Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

        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

        • Re: (Score:2)

          by AuMatar ( 183847 )
          I think excessive fines imposed is arguable. $750 per song, when the song is sold for $1? A 750x damages award? The argument here isn't that the RIAA is acting unconstitutionally, but that the law which allows such high fines is unconstitutional.

          • 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

            • Re: (Score:2)

              by terrymr ( 316118 )
              There is case law to support the notion that statutory damages which are grossly disproportional to the damage caused are in essence fines rather than damages - these "fines" are then subject to constitutional review.

              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"

          • Re: (Score:2)

            by RingDev ( 879105 )
            I haven't read this case specifically, but most of the suits deal with people sharing music, not downloading. So even given the realistic cost of $1/song, they could claim that you shared that song in part or full with 750 people over a bit torrent. The $1/song argument does not apply to distribution.

            -Rick
      • Cruel and unusual punishment only applies to criminal cases, where the freedom of the accused is at stake. It does not usually apply to civil cases, where the only thing at stake is money.

        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

    • Sorry guys, but I agree with the judges. There is nothing in the constitution that says the RIAA can't sue you for however much they want to.
      Sorry, guy, but what "judges" are you talking about? The only judges I'm aware of who have ruled on the subject have said that the RIAA's $750-per-song file damages theory may well be unconstitutional [blogspot.com]. See also In re Napster Inc., 2005 WL 1287611 at *10-11, 77 U.S.P.Q. 2d 1833, 2005 Copr. L. Dec. P 29,020 (N.D. Cal. June 1, 2005). And legal scholars have said it is [ssrn.com] unconstitutional.
    • You obviously don't steal many Twinkies (or at least you don't often get bust for it).

      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

      • Re: (Score:2)

        by jedidiah ( 1196 )
        I've got a novel idea... how about charging the perp with ACTUAL DAMAGES.

        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)

        by vux984 ( 928602 ) on Tuesday July 31, 2007 @02:53PM (#20061255)
        You obviously don't steal many Twinkies (or at least you don't often get bust for it).

        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.

        • Re: (Score:2)

          by PCM2 ( 4486 )

          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.

          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

      • the fine for stealing $5 in twinkies is around $1000 in most jurisdictions last I checked. plus the hassle and cost of having to go before a judge.
    • There are two things at play here that make your analysis wrong:

      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

    • Re: (Score:2)

      by mark-t ( 151149 )
      No, but if you steal a box of twinkies that cost $5, you can still pay a $500 fine for shoplifting. The penalty for committing the crime is _always_ significantly higher than taking the legal route, so that there is financial incentive to do things legally unless one is willing to risk getting caught.
      • The point others have made is that stealing 1 Twinkie results in a fine of $500, and stealing 50 twinkies in a box results in a fine of about $600. However, the RIAA argues that pirating 1 song is a $750 fine, and pirating 50 songs is a $37,500 fine. When there is less liability in stealing CDs from a store than sharing them, it hardly encourages proper behavior.
    • Good luck in court arguing that you shouldn't be liable for more than $5. If that were the case, nobody would ever pay for anything - either they don't get caught (and get it free) or they do get caught, and have to pay what they would have paid anyway.

      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.)
    • I believe that he is not arguing about the amount per se, but rather the defendant is suggesting that the law upon which the case of the RIAA is built (i.e. Federal Copyright Law or some portion thereof) is unconstitutional, which would make the precise amount of damages a moot point (provided the defendant prevails, although that is probably a long shot).

  • This is so not news. (Score:5, Informative)

    by Quadraginta ( 902985 ) on Tuesday July 31, 2007 @02:22PM (#20060823)
    If you read the motion in question, you'll see one thing this is not is Big Evil Government joining forces with Big Evil Recording Industry.

    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 /. editors), that this is utterly routine and has about zero bearing on whether or not he'll win the case.

    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!
    • I think it is an extremely important challenge. The concept of "punishment fitting the crime" is more than just an ideal to be upheld in American law, it is actually part of the Constitution. You know, the whole "nor excessive fines imposed, nor cruel and unusual punishments inflicted," thing. Seems pretty easy to argue that the statutory fines in copyright cases are excessive in relation to the actual harm. Would be the same kind of deal if a simple speeding ticket for going 5 miles an hour over carried a

      • Re: (Score:3, Informative)

        by ajs ( 35943 )

        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

        • Re: (Score:2)

          by sconeu ( 64226 )

          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.

          If the GP is interested, the case is Eldred v. Ashcroft [wikipedia.org].
  • IANAL, so this may be a stupid question...

    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

    • IANAL, so this may be a stupid question...
      There is no such thing as a stupid question. A stupid answer however...
  • I would love to know the machinations that got the DOJ on _this_ case.

    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)

    by Is0m0rph ( 819726 ) on Tuesday July 31, 2007 @04:18PM (#20062467)
    Suing Apply now saying they should be paying his publishing company and not the record labels only: http://news.com.com/Report+Eminem+sues+Apple+for+c opyright+infringement/2100-1030_3-6199888.html?par t=rss&tag=2547-1_3-0-5&subj=news [com.com] "All the publishers are rankled that they have to go after the record labels to collect their fees," Sloan said. "Sometimes these fees may not be accounted for properly. The publishers would prefer to collect directly from the source instead of the labels."

  • Counterclaim: RIAA = Cartel (Score:4, Interesting)

    by Anonymous Custard ( 587661 ) on Tuesday July 31, 2007 @05:06PM (#20063055) Homepage Journal
    I thought this was quite interesting from the counterclaim [ilrweb.com]:

    The Plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, in an attempt to expand their monopoly power into the area of online digital music, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have. As such, the Plaintiffs are guilty of misuse of their copyrights.

  • These Cases Should Never Be Getting This Far (Score:5, Interesting)

    by Nom du Keyboard ( 633989 ) on Tuesday July 31, 2007 @06:52PM (#20064277)
    Defense Lawyers Take Note:

    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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