Judge Orders RIAA to Show Cause in DC Case

NewYorkCountryLawyer writes "The RIAA's 'bumpy ride' in its 'ex parte' litigation campaign against college students just got a whole lot bumpier. After reading the motion to quash filed by a George Washington University student, the Judge took it upon herself to issue an order to show cause. The order now requires the plaintiffs to show cause, no later than November 29th, why the ex parte order she'd signed at the RIAA's request should not be vacated. She's also requested information showing why her ruling should not be applicable not only to John Doe #3, but to all the other John Does as well. p2pnet called this a 'potentially huge setback' for the recording companies."

"Potentially huge setback"

[crowbarsarefornerdyg]

Sure, it's got a lot of potential. But until the RIAA responds, we're not going to know how much. It could even end up helping the RIAA.

Re:Simplify this legal language

[therealgrumpydog]

"Show Cause" technically means, to prove oneself right" or as to "justify one's actions within the best interests of all concerned." Either way the RIAA can kiss my arse. I get promotional music and play it. This is the way I see things, if you want free Airplay, one needs radio stations and DJ's. No Radio Stations, no DJ, no plug for your new tune! If you like it then buy it. The RIAA is supposed to protect Artists, or are they really just another money making scheme, purporting they are protecting you, as the artist, so you get your Royalties? I think not! Record companies and they're PR dept knows who they have sent out promotional music to and therefore should be immune from Royalty charges. The same applies to PPR. In all honesty, the RIAA is more of a hinderance to the Music Industry, rather than supports it. Whether some people use p2p in order to get the latest tune is another matter. People will use p2p to try and get the latest music as we are a consumer driven society.

Re:The bigger picture, Mr. Beckerman?

[ScrewMaster]

Even if all I have is a time and IP address, shouldn't I be able to seek appropriate civil action against the infringing party?

No. Now, if you had me on camera downloading music and heard me listening to said tracks ... that might be different. But if you're going to be throwing a lawsuit at someone that will cost both sides tens or hundreds of thousands of dollars, you'd goddamn well better be required to have more than a server log. Otherwise what you're doing is not redress of grievance but ... well, I'm sure there are a hundred legal and non-legal terms for what the RIAA is doing but justice isn't one of them.

Re:The bigger picture, Mr. Beckerman?

[peterd11]

In the motion to quash, the defendant's lawyer makes the point that while the court may be sympathetic to the RIAA's attempt to prevent copyright infringement, "playing by the rules" is what the court must enforce. If the rules, i.e. the DMCA, are flawed, that's not something the court can correct. Congress has to update the DMCA, taking into account the competing interests at stake.

Re:The bigger picture, Mr. Beckerman?

[S point 2]

Maybe it's easier to take an example outside of the music industry. For example, say that I write a creative text, and publish it online as a PDF file that I sell, and that I do not grant the right to redistribute my work. If I later discover that someone who legally obtained my work is now hosting it online for others to obtain, and even have evidence that an actual unauthorized redistribution has taken place (i.e. someone linking to it with a comment suggesting they've downloaded it), do I not have a right to protect my intellectual property? Even if all I have is a time and IP address, shouldn't I be able to seek appropriate civil action against the infringing party?

No. Legally yes, you have the right to. But morally? Ethically? No, I would say probably not. The problem is you don't have any control over it once it is published in a reproduce-able format. And especially after it goes online. Practically speaking, suing one person does nothing to prevent another form doing the same or downloading it. So it doesn't protect your intellectual property. I even have a problem with the idea that it is yours to begin with: a copyright is all well and good, but I have a problem with the idea that you own something that I have already bought. I'm not leasing the pdf, I own it. It's mine, and I'll do what I want with it. Copyright isn't going to change it. It's a piece of paper somewhere that I may or may not agree with. And in any case there's nothing you can do about it except try to sue me, which won't prevent anyone else from doing the same, and is certainly not going to encourage me to cooperate with you. Besides, I own the pdf. I have direct control over the file and can do whatever I like to it. Copy it, Modify it, send it to Tajikistan, whatever. Litigation doesn't prevent it and then,after the fact, doesn't even discourage it. This has been proven by the music industry. At best it pisses people off. At worst you loose customers and waste a lot of money on pointless litigation and look like an ass in the process. So this really isn't helping the music industry. It gets back to the old MIT hacker argument: How can you sell something that can easily be copied, distributed, and re-produced for free? It is possible (people make millions selling bottled water) but you can't sell things people don't want. people don't want to pay 15 bucks for a cd that cost 10 cents to make with 12 songs they don't want and one they do. And they don't have to. They can download it for free. And that's the bottom line no matter what they (RIAA) say.

Commerical Copies

[hhawk]

I read through both the judges order and the motion filed by Doe #3; it's good reading.

The two most strong points for me are:

a) they can't lump all the Does together; that wouldn't hinder the RIAA much but still having to file 25 or 100 or 1000 or 50000 cases, each one with filing fees, would have some effect but as Doe #3 claims, it would also serve and advance the interest of justice for each of the Does to be treated on a case by case basis, with their own juries, lawyers, etc. [A Doe who actually illegally sold copies of music wouldn't get lumped in with someone who had their ID stolen or their IP address spoofed].

b) that for someone to violate the copyright law, one of the major tests is you have to do it for a) commerical gain and b) merely offering to sell a copy isn't a violation (you have to actually sell it). It's clear that the P2P system is anything but a commerical sales system; everyone admits the copies are free; it's also fairly clear, to anyone who wants to really research the matter, the only party that gets commerical gain out of the P2P sharing of media is the copyright holders.

PS.

Many decades of radio station play of records as well as song "play" on MTV, VH1, etc. has shown that when people are exposed to new sounds/songs, etc. they buy them; this was the novelity of MTV, kids started buying songs that didn't get played on the local radio.

So even if there wasn't any evidence that P2P directly boosts sales of songs, CDs, etc, 50+ years of radio play has proven that point; listening to a song boosts its sales.

It has proven it to the point that many members of the RIAA have illegally (in the past and in the present) used a system called Payola, which pays radio stations to play songs by a particular artist repeatedly more than other artists for commerical gain; they do this because they believe the more their songs are played the more $$ they will make.

Copyright holders spend 100's of thousands to mulitple millions of dollars to produce "music videos", engage in Payola, advertise to DJs and radio station programmers, etc. all for the purpose of allowing the music to be played on the air or on TV/Cable all in the hope that people will buy the music. Clearly they could save those $$, let P2P do it's work, and accrue the savings in production, Payola, etc. to any lost of royalities.

In fairness not deserved by the RIAA, their is a difference between listening to a song on the radio and making a copy of it via P2P but in fairness to the public, owning a physical copy of a song is not the same as having a 3rd rate digital copy, that may or may not be 100% as the artist intended.

Re:The bigger picture, Mr. Beckerman?

[S point 2]

I hate DRM, but I've never heard a good argument for why we should just throw all of intellectual property rights out the window.

Because they don't work. It is an illusion of control. An illusion. I do not think that intellectual property rights should be thrown out, But in certain areas, with certain things, they should be changed. Utility patents expire after 10 years. That's a patent, for some great invention or piece of engineering or whatever. But copyrights for sound recordings last 50 years from the date of recording. For films it's even more absurd: 70 years from the date of the last major player(director, producer,screenplay author, sound director,etc) involved to die. 70 years after the last one of them dies the copyright expires. That's ridiculous. 50 years is to much too. Ten. Ten years. Thats it. That's long enough. And the litigation laws regarding this should be changed too. There is no reason why someone should be sued for millions of thousands of dollars over the loss of one infraction. That's just stupid. And as the laws currently stand, I have no pity for those who would be ripped off and lose money over copyright infractions epecially in the music and film industry. They are acting like jerks and have not stopped the loss one bit. That's why the laws should be modified: they don't work. They don't help the creator of the item, nor do they help the consumer or end-user. They just don't work.

Re:The bigger picture, Mr. Beckerman?

[Kierthos]

See, that's a good point. If the RIAA came down with the jackboots and the truncheons on some operation that was cranking out hundreds or thousands of pirated CDs and wanted to impose the same scale of penalties on them as they are trying to burden these college students with, I don't think anyone on Slashdot would even defend those pirates.

But trying to sue a college student into the poorhouse because they shared some tracks off of a Beyonce CD using the same scale of penalties is ridiculous. And the RIAA should know this. But they don't seem to care.

Re:The bigger picture, Mr. Beckerman?

[NewYorkCountryLawyer]

It is you who have lost sight of the big picture. The big picture is that we are a nation of laws. The reason I went into the legal profession is because I believe in the rule of law. Bringing frivolous cases based on misstatements of existing law and bogus evidence is contrary to the law.

Secondly, even before I went into the legal profession, I was raised to believe in fairness and decency and courtesy and humaneness.

I have never once suggested to anyone that the laws regarding protection of intellectual property rights should not be followed. I have been working in the copyright field for 34 years, and I have never once said anything like the bogus points you are trying to attribute to me.

Yes the RIAA has to work a "little bit harder".... small details like

(A) identifying the right people, who

(B) actually did infringe their copyrights, and then

(C) handling the matter in a lawyerlike manner instead of an extortionate gangsterlike manner.

Re:The bigger picture, Mr. Beckerman?

[macemoneta]

This is actually the basis of the flaw in the RIAA's reasoning. An IP address does not relate to an individual. Even if there is only one person normally associated with an IP address, that IP address, for that particular (illegal) action may not relate to the individual.

If you are assuming that someone is committing a crime, you have to also consider that they may be falsely laying the blame on someone else. Cracking the password on their router, spoofing packets, botting their machine, hacking their wireless, or even physically splicing a wire. After all, people have been physically splicing into other networks for decades (cable and telephone). Why assume that the relationship is a pristine one-to-one for IP addresses?

If you are going to burden someone with thousands of dollars in legal fees, you should have to have more than an IP address. Most people will simply fold under the weight of a lawsuit; that doesn't imply guilt, just poverty in the face of huge legal fees.

Re:The bigger picture, Mr. Beckerman?

[NewYorkCountryLawyer]

This is actually the basis of the flaw in the RIAA's reasoning. An IP address does not relate to an individual. Even if there is only one person normally associated with an IP address, that IP address, for that particular (illegal) action may not relate to the individual. If you are assuming that someone is committing a crime, you have to also consider that they may be falsely laying the blame on someone else. Cracking the password on their router, spoofing packets, botting their machine, hacking their wireless, or even physically splicing a wire. After all, people have been physically splicing into other networks for decades (cable and telephone). Why assume that the relationship is a pristine one-to-one for IP addresses? If you are going to burden someone with thousands of dollars in legal fees, you should have to have more than an IP address. Most people will simply fold under the weight of a lawsuit; that doesn't imply guilt, just poverty in the face of huge legal fees.

Bingo. Plus the fact that the RIAA knows [blogspot.com] that the identifications of the IP address are often themselves wrong.

Re:Commerical Copies

[Attila Dimedici]

and so artists are starting to realize that the artist should get a larger share of the profit

Artists are starting to realize they can have all the profits, that the studios just really aren't all that relevant anymore. For that matter, they're starting to realize the sale of their music can actually have profits, if they just don't contract out to a major studio. Radiohead's recent efforts in this regard have certainly pointed the way to self-publishing on the Web as a way to make serious money.

However, in the long run, most artists will discover that they need to pay a publicist, a promoter, and a record producer (probably a couple of other roles of which I am not thinking at the moment) to maximize their profit. The best of those that do those three jobs will get a cut of the profit, not just a flat rate. Therefore the artist that wants ALL of the profit will not make as much as the one who shares it intelligently.

Re:Simplify this legal language

[Paradise Pete]

If I understand it correctly, it seems that in this case it's even stronger than that - She is saying "They haven't even asked me and I'm thinking of throwing this out."

I must say that from reading your submissions I'm less cynical about the judicial system.

Re:The bigger picture, Mr. Beckerman?

[NewYorkCountryLawyer]

Let's also remember that the term "piracy" in copyright parlance means large scale reproduction of exact copies for commercial gain. None of these cases is about "piracy" and the RIAA's and MPAA's repeated use of that term is rank propaganda.

Re:"Potentially huge setback"

[LrdDimwit]

To add a bit more: A "show cause" order means the judge wants to take some action you won't like, and is giving you one last chance to protect yourself from it (this is, after all, only fair). They are basically the judge saying 'This is your last chance to explain why I should not take [action] against you. It had better be good.' After Jack Thompson filed the 'grey prawn' in the case he's currently embroiled in, the judge in that issued a "Show Cause" order demanding to know why Jack should not be referred to a disciplinary committee. A show cause order can't possibly be good for the recipient. It means you've pissed the judge off. Particularly, the judge here has begun to suspect the RIAA pulled a fast one and got him to sign an unjust order.