ABA Judges Get an Earful About RIAA Litigations 349
NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article.
Queue RIAA press release... (Score:4, Insightful)
about the unfairness of the article in three, two...
All that needs to be said (Score:5, Insightful)
You are a hero.
Thank you for your efforts. (Score:5, Insightful)
They are greatly appreciated.
Of all 3 branches (Score:0, Insightful)
Re:Thank you for your efforts. (Score:4, Insightful)
Wow (Score:5, Insightful)
Awesome read. I wish this was required material for any judge presiding over the cases in question. I also wish for a pony.
Re:Of all 3 branches (Score:4, Insightful)
judges (Score:3, Insightful)
Re:Great paper, still reading... (Score:3, Insightful)
I started reading and then a question occurred to me. In the Napster days you found someone with a song and downloaded it. With a torrent, you are getting a chunk. I don't see the chunk as having any copyright since you need to assemble the file with the header to listen / view it. IANAL, To prosecute someone, wouldn't you have to prove that you got each chunk from the same computer / person? Just because someone is seeding a file doesn't mean that he is supplying all of the pieces to you to recreate / duplicate a copyrighted work. Without the whole file it's just a bunch of semi random bits.
It seems to me that a little defense could go a long way. To bad that defense will cost you your house. Oh yeah, it's the US (I'm in Canada). You guys are walking away from your homes anyway. Just give your keys to the RIAA and say thanks for the tunes and move to Canada.
Real question (Score:5, Insightful)
I have read the copyright law, but since I am not a trained lawyer I am confused on one part.
Is downloading infringement? or is it distribution?
Distribution makes sense to me, downloading(receiving) doesn't.
Am I to be liable if it turns out the book I bought from a bookstore is actually a copy of something some else wrote?
Where doesn't it say downloading is infringement?
AFAIK, All the cases had people whose software was downloading also had 'sharing' turned on.
Well done (Score:5, Insightful)
I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say...
Oh, and well done Ray, I will be saving this article as an example of why we need due process.
Re:Well done (Score:5, Insightful)
I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say... Oh, and well done Ray, I will be saving this article as an example of why we need due process.
Yes it's pretty astonishing the lengths to which they will go to make sure the defendant doesn't have a fair shake in court.
Re:Damn it! (Score:5, Insightful)
And a sense of humor, as well?
Ray - Not only do you do great things for "The People", but I believe your work is helping to fix the typical feeling of mistrust that most Americans have for lawyers.
I, for one, feel better knowing that not all lawyers are as portrayed in the movies.
And I am glad you can make jokes about yourself. I have long believed that this ability is one of the more noble qualities that a person can have... and somebody who can pull it off well is worthy of a great deal of respect.
Thank you.
Re:Of all 3 branches (Score:3, Insightful)
under a lot of scrutiny because of its political bias
Now, let apply the same to the other branches of Government please ....
Political Bias = Republicrat and Demican parties, where 2/3 of the people can want something and one person can hold it up because they "want to save the planet", or "protect us against evildoers"!
I'll probably get modded down as "redundant" (Score:5, Insightful)
But I'll post this anyway. Your efforts are sincerely appreciated by many of us. I've read the article, and I hope that judges who read it will take a serious look.
I am currently actively involved in supporting a blogger in the UK whose right to free speech was recently threatened. I would not have had the interest or courage to become involved in this effort if I had not been exposed to the RIAA issue on Slashdot. Though the two types of cases differ greatly, the underlying message is the same: Individual freedoms must not be tampered with or trampled. You have expressed that basic truth very eloquently, and I hope you will continue to do so for a very long time.
Re:Real question (Score:5, Insightful)
Is downloading infringement? or is it distribution?
OK, I am not Ray, and I am not a lawyer. Make of this what you will. All of the following applies to US law.
Distributing other people's copyrighted files may violate 17 USC 106(3). Downloading other people's copyrighted files may be considered "reproducing" said file, which may violate 17 USC 106(1).
The big problem is these laws were written before p2p sharing existed, so we don't really know for certain how the law applies to these issues. The RIAA (and other groups such as the MPAA) is arguing that 17 USC 106 be applied very broadly, so as to definitely condemn downloading and uploading files. Ray, the EFF, and other organizations are arguing (among other things) that 17 USC 106 does not apply as RIAA thinks it should.
Re:Question for NYCL... (Score:5, Insightful)
My understanding is that the RIAA downloads from their victims, then sues them for making those files available.
That's exactly right. Pretty pathetic, isn't it?
fishing with a net... (Score:4, Insightful)
Seems to me that the RIAA's quote in the appendix is quite interesitng:
when you fish with a net, you're gonna catch a few dolphins
Especially since you can see from the list of people they sued, that they have only sued dolphins(casual defenseless infringers), and not a single barracuda(large scale industrial pirates)...
Re:Thank you for your efforts. (Score:4, Insightful)
I'll second that! I'll never need this info personally...
Don't be so confident about that, since many of the people being sued are no more guilty than you.
Re:Thank you for your efforts. (Score:3, Insightful)
"I'll never need this info personally, but feel this is for a greater good."
Don't be too sure. Remember that the RIAA has sued people who have never even used a computer. In America, just because you're not guilty doesn't mean you won't have to defend yourself.
Re:Hey NewYorkCountryLawyer (Score:3, Insightful)
I couldn't fail to disagree more[0] :)
It's all very well us bitching about things on Slashdot, but people need to be out there making a difference (I'm just as guilty as anyone at being too lazy sometimes so I'm not on my high horse here).
In that vein it is great to see someone like NYCL - someone so obviously in tune with rational thought and even posting on Slashdot no less! - grabbing this opportunity to address the right ears with both hands.
I'm pessimistic to some extent too but nonetheless this gives us more hope than there would be otherwise.
[0] That is, I agree - for the benefit of any hard-of-thinking, shoot-from-the-hip modsters out there ;)
Re:Question for NYCL... (Score:4, Insightful)
Re:All that needs to be said (Score:5, Insightful)
Well, everybody has to make money. As a lawyer who has had a couple of RIAA cases referred my way, I can honestly say that there is no upside at all to taking the cases and doing any fighting in court. The costs of doing discovery and filing responses in the court will add up quickly enough that the defendants better option is just to pay the settlement and be done with it.
Even if there was a chance that the defendant would prevail, they'd be in a deeper hole than if they settled. And the RIAA has demonstrated that they'll fight an award of attorney's fees for a defendant, making any eventual payout years down the pike.
If I didn't have student loans that needed regular payments, and the ordinary costs of living, taking on one of these cases and fighting tooth and nail seems like a worthwhile thing to do. But I can't afford to do it.
We should be glad that NYCL is fighting this fight, and God bless whoever is paying him (or if he's been successful enough in his practice up to this point to be bankrolling it himself.)
Re:Real question (Score:4, Insightful)
Re:Real question (Score:3, Insightful)
Re:Wonderful article (Score:5, Insightful)
A very thorough yet accessible article. Very well done- a wonderful job of putting together a complex set of factual and legal issues. Do you suppose someone at the RIAA will read and (in any way) react to this?
My guess is that they've been reading it, and preparing a public relations counterattack. It's not in their nature to learn something from it; they're not programmed to learn.
Re:Of all 3 branches (Score:3, Insightful)
My understanding it is considered in bad form to invoke cloture in the Senate even if one has the votes to do so. That means that a fair amount of legislation can be blocked by committees/filibusters/etc just by the virtue of everybody caring more about being polite than democracy.
I think that half the time representatives use these maneuvers as excuses, as in "well, I would have voted for it but those evil (somebody else)'s didn't let it come up for a vote." They're just as happy that it didn't come up for a vote - because then they'd need to go on the record and tick somebody off...
Re:Great paper, still reading... (Score:3, Insightful)
A statement like that in the NIV can give you rights in excess of fair use, but cannot ever curtail your fair use rights. Copyright law is what it is. A statement like that in a bible is probably intended as something of a "gift" to its users in the sense that part of the purpose of a bible is to quote/discuss in services/etc. No one needs to think twice about quoting it within that guideline. But, it doesn't necessarily mean that going outside those bounds is actually not permitted, that'd depend on the legal interpretation.
That said, I think the grandparent poster's idea, while it might work from a very letter-of-the-law standpoint, probably *shouldn't* work if you agree with the basic concept of copyright. At some point, someone creates something that causes a copy of the bits to be reassembled into a copy of the copyrighted work and someone initiates that process. There is a guilty party or parties in that process no matter how thinly you slice it -- either as direct infringement or conspiracy to do so.
That said, I don't necessarily think it *should* be illegal to do this. When it starts becoming necessary to go to enormous technical lengths to prevent people from doing things, I think that's a sign that perhaps it's not practical for it to be illegal in the first place...
Re:Real question (Score:4, Insightful)
1. Some 'copying', i.e. from from drive to RAM, has already been held to be legally exempt from the very definition you are trying to give it, in reference to various EULA's and such. While some courts are still wrangling over just what does and doesn't count, such actions as sending data to a printer buffer and then printing it definitely don't count as multiple violations of copyright.
Your claim that 'every time you open the file after that, another set of copies gets made" is absurd, and has gotten inexperienced lawyers censured for invoking it in actual courts. It would make every person reading an electronic book they had legitimately paid for a criminal, as they have purchased only one copy and no rights to reproduce it.
2. By your definition, you have made a copy of a written document by looking at it (a copy then exists as an inverted image on your retina.) You have then made another copy by retaining that image in your brain, and by your brain's having converted the data to an interpreted set of ideas and not just an image in the visual cortex, you have made a third copy. If you even consider speaking the words you have seen, a fourth copy has just been made, in your brain's speech processing regions. So, your argument apparently makes all reading illegal.
Re:Thank you for your efforts. (Score:5, Insightful)
I would say the larger the settlement the less deterent it is.
If I were charged $50 per time getting caught I would probably be petrified. If I were charged $10,000,000,000 per time I would just view it like dieing "hopefully it won't happen but if it does it's pretty much over."
The lower the fine the more likely they are to be able to pass sweeping legislation which makes it easier to charge people. If downloading were like parking tickets and as easily enforceable then I think you see a much larger drop in piracy than threatening to sue millions of dollars.
It's like "disaster syndrome" your brain can't quantify the damages so it just gives up and ignores it all together. My brain can perfectly understand $50 and its effect on my wallet.
Re:Thank you for your efforts. (Score:5, Insightful)
Never want to see RIAA again? Then don't steal the dream - don't steal the music. Buy your "tunes" at a reputable record store instead of just stealing them off the Internet.
The RIAA and other entertainment lobbyists have been stealing from the public on a massive scale for decades. Beyond the repeated price-fixing convictions (which they never seem to get punished for), they've been taking works that should have become public domain and extending the duration of their monopoly rights over them, even retroactively so that the public never gets any return on the copyright bargain in their lifetime. You could wrap all those industry execs in bacon and drag them through an alligator moat and nobody would shed a tear.
Re:Thank you for your efforts. (Score:5, Insightful)
No more? They're less guilty. He at least has a computer, he could at least somehow do it.
Re:Interesting... (Score:2, Insightful)
Re:this is excellent news (Score:4, Insightful)
It doesn't so much make a mockery out of the legal system but abuses it to browbeat its opponents.
The MAFIAA has a lot of money to back it. When someone with money wants to get you to submit, he uses the courts. For many rather simple reasons:
First, money. It takes a LOT of money to stand up in court against someone. Now, of course it costs both sides a lot of money, but as I said, they have more than you. Almost invariably so. And they choose their opponents carefully, I'm fairly sure they wouldn't go after, say, Donald Trump. Check their records and you'll see that you almost invariably have "regular Joes" on their target list. They don't even have to make remotely sure that they have a case at all. It's a FUD campaign, with the courts as the "muscle".
They drag you to court into an expensive battle. You have the choice now. Back down and pay their insane claims, whether you're guilty or not, or fight them and pay insane amounts of money for lawyers. Your choice, you're broke either way.
Oh, you mean suing them for expenses. Sure, you can. Unless of course they suddenly drop your case, leaving you empty handed, or drag the settlement of expenses for months and years. Tell me, how long do you think your creditors will want to wait? For the verdict that will come in a year or two? Anyone who thinks so doesn't deal with banks too often.
First they try to browbeat you into submission by using a lot of legal mumbo jumbo, a lot of bullying with exaggerated claims and a "moderate" settlement fee (this alone shows that they don't even consider their case good enough to win with a verdict, why should they be interested in a short trial? They have the time and money on THEIR side!), and should you fight it out, they wear you down by dragging it out like some well chewed gum, letting your bills pile up and simply and plainly trying to bleed you dry.
Re:Interesting... (Score:4, Insightful)
Hmm... let's see the possible outcome...
1. Defendent knows he's guilty and settles -> RIAA wins
2. Defendent knows he can't afford to fight, no matter if he's guilty -> RIAA wins
3. Defendent knows he's innocent and decides to fight, RIAA drops case -> Defendent wins
In total, I think it's quite a good chance for the RIAA to win their case without ever going to court. I wonder why they don't just randomly pick people and sue ... nevermind.
Re:Well done (Score:5, Insightful)
No, it's really fucking not! Attorneys are also "officers of the court," and have the responsibility and obligation to uphold proper court procedure. The RIAA's lawyers are absolutely failing in their duty to the court, and should be sanctioned for it!
Re:The suggestions from TFA (Score:3, Insightful)
(Disclaimer: I'm not a lawyer; Mr. Beckerman is a fine lawyer with principles and courage.)
After reading the article, some observations about the content companies' counsel:
1. Misjoinder and other violations of procedure/precedent: Counsel has taken one cue too many from the Bush White House, and has decided to simply ignore anyone telling them to cease and desist from behaving badly. Contempt of court and other sanctions may apply, but due to the fast file-and-drop nature of the John Doe suits, they are rarely, if ever, exercised, reinforcing the end-run behavior of counsel and plaintiffs.
2. Counsel is consistent in its strategy of playing dirty, as evidenced by the aforementioned disregard of orders and procedures, filing in federal jurisdictions less "friendly" to the defendants, filing multiple times against the same defendant, using evidence that is at best disingenuous, stacking the deck in its favor in discovery, etc., etc.
3. Counsel bases ex parte discovery on two fallacious claims: that the evidence can only be brought forth in such a discovery, and that plaintiffs would suffer "irreparable harm" if ex parte discovery is denied. Counsel fails to both reasonably support either claim or show that this "irreparable harm" is in fact the inflated loss figures* concocted by the plaintiffs' marketing/finance/legal departments.
4. Counsel expunges its conscience and common sense, believing the plaintiffs' claims that there is no such thing as a legal download of copyrighted content, and that anyone even remotely implicated by its driftnet investigation should be pursued to the depths of poverty and hardship. Should they be brought before the bar association for misconduct, I believe they will invariably invoke the Nuremberg defense (if not the Chewbacca defense) for their zealous representation of their plaintiffs.
* They claim: 'Unauthorized' digital copy = lost sale = lost revenue. This is the basis for every ridiculous claim by the plaintiffs, e.g. "ripping a CD = unauthorized", because if you made a copy, it must be for some insidious purpose. IMO, Every MBA who insists that these are true does not deserve their degrees.
Here's hoping that enough district judges will gain enough wisdom to stop the MPAA from using these same tricks in its own litigation campaign.
Re:What options do WE have? (Score:4, Insightful)
The article did have a few "think of the poor" phrases that seemed a little obtuse (in comparison to the rest of the article, which was impeccable), as justice meted for violation of copyright laws should be, ideally, blind -- listening to what's right vs. wrong instead of who is right vs. wrong.
Personally I think Ray made a good case for this (see page 2 in particular). The judge's job, he argues, is to make sure that the trial is equitable. As he points out, there's an awful lot of ex parte stuff going on, and most times the defendant actually appears it's pro se or else the defendant's representation is only there because they have to be; given that, the only way to make sure that the trial is equitable is for the court to rest a finger lightly on the scales. I hope the article's intended readers find that half as persuasive as I do.
Re:All that needs to be said (Score:5, Insightful)
Quick? NYCL has been posting on this stuff for years and is by far the most informative voice on slashdot for this type of thing - I can only assume you are a new AC around here.
It appears that he's getting paid for it.
Define "it". Also regardless of wether he is paid for "it", he has done far more than just sit on slashdot and bitch about the MAFIAA like the rest of us do.
Re:Thank you for your efforts. (Score:5, Insightful)
And unlike the folks that claim that copyright infringment = theft, this *really is* theft (i.e., something taken from people that they are unable to use as a result) on a massive scale.
Re:Thank you for your efforts. (Score:2, Insightful)
Isn't that intentionally misleading the Court? (Score:4, Insightful)
In a fair number of instances you mention it appears the reality is somewhat far removed from what the RIAA lawyers state, or it appears statements were made with the clear intention to mislead.
Isn't that a punishable offense? If not it should be IMHO - at a criminal level so that it cannot be insured against or subverted by some more creative lawyering. One must keep in mind that if a lawyer is prepared to step so far out of the expected modus operandi to make such statements, actual misdirection is not too much further from the accepted course of action.
It's up to the judges to safeguard the system. So far, that idea apparently hasn't worked too well..
Re:Well done (Score:3, Insightful)
And they should be more concerned about justice and the proper use of the court system rather than just winning cases. The thing is, rather than pursuing the cases, they should be telling their clients (the RIAA members) that their cases are deficient and there's not enough real evidence to continue. That's what an ethical lawyer acting as an officer of the court would do. Instead, they prefer to cash those big checks and twist the system around in an attempt to actively hinder their chosen target's ability to receive justice in the courts. Worst of all, in some cases they are richly rewarded [blogspot.com] for having abused said system so skillfully.
Re:Interesting... (Score:4, Insightful)
I'm wondering if I could buy stock in Sony and sue the CEO for devaluing the company's assets. After all, if downloading really does cost several hundred thousand dollars per infringer, why are they settling for a few thousand?
IANAL, and nor am I a music executive, but I can think of an answer to that one easily enough.
Because otherwise they'll have to spend just as much on lawyers which they're unlikely to get back; even if awarded costs you can't get a man whose total assets amount to $100,000 to give you $200,000.
Did we hold a shotgun to EMI? (Score:4, Insightful)
Did we hold a shotgun to EMI/Sony/... and steal their works?
Did we hold a shotgun to the artists and steal their efforts?
No. The artists and labels have decided of their own free will to work in a sphere that is overtaken by technology. Just like the flint-knappers and buggy whip manufacturers.
Re:All that needs to be said (Score:1, Insightful)
Re:Well done (Score:4, Insightful)
Yeah, it's called "being a good attorney". Being one yourself, you can certainly identify. The attorney's job is to present the client's arguments in the best possible light, and if he has to bend the law or ethics to do it, then that's his job. Breaking the law is OK too, as long as you don't get caught...
Maybe that's your definition of a good attorney. But it isn't mine.
Re:Thanks, Ray. (Score:3, Insightful)
I'm not a potential RIAA target (at least from anything I'VE done...),
That was also true for MOST of the people who HAVE been targeted.
Re:Damn it! (Score:3, Insightful)
I believe your work is helping to fix the typical feeling of mistrust that most Americans have for lawyers.
Actually, the one thing that fixes "the typical feeling of mistrust that most Americans have for lawyers" is needing one yourself. The lawyers that took care of my divorce and bankrupcy were intelligent, personable, dedicated, and well worth what I paid them.
Re:Well done (Score:3, Insightful)
Yeah, it's called "being a good attorney". Being one yourself, you can certainly identify. The attorney's job is to present the client's arguments in the best possible light, and if he has to bend the law or ethics to do it, then that's his job. Breaking the law is OK too, as long as you don't get caught
How can being bad possibly be good?
Re:Thank you for your efforts. (Score:3, Insightful)
The case here is not of downloaders getting punishment. The case is that people at large can get punished bacause they cannot afford the the costs of defense and/or are not even informed a case is brought up against them.
If that is so than the system in which such injustice is possible is not much different from one in which execution squads are sent out every time e.g. somebody mentions human rights or unisons or whatever. This has nothing to do with the question of downloaders being punished or not.