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.
Re:Thank you for your efforts. (Score:5, Interesting)
I'll second that! I'll never need this info personally, but feel this is for a greater good. The voice of NYCL is a breath of fresh air compared to the hostile assholes who are waging a war on potential customers and anyone who gets in their way. To bring some fairness to the people who are getting railroaded by the RIAA and their draconian tactics is a very, very good thing. Doing something helpful for someone you may never meet is commendable.
Re:Damn it! (Score:5, Interesting)
That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments.
No problem. You can keep on making snarky comments.
Now my replies need to be thought out!
Don't start on my account.
I mean, you look like one of us
I am one of you.
(except for the monkey suit).
I only wear the monkey suit for special events such as funerals, bar mitzvahs, and court appearances. I.e., just like you.
Question for NYCL... (Score:5, Interesting)
--Validity of Plaintiffs' Copyright Infringement Claim--
"Without actual distribution copies . . . there is no violation distribution right."
--William F. Patry, Patry Copyright, 2007.25
I assume that MediaSentry has some sort of signed agreement or license that gives the copies that they make in the course of thier "investigations-ha-ha-ha" the status of "authorized duplications". Without such a license or assignment of duplication rights, MediaSentry would be guilty of infringement themselves, would they not?
If said licenses or assignments do in fact exist, why can the "evidence" of the download transaction (a copy being made) be termed an act of "Unauthorized Distribution" if the party actively making the copy is explicitly "authorized" to make said copies?
Re:Thank you for your efforts. (Score:4, Interesting)
Admissable (Score:5, Interesting)
This is the problem with the court systems in America. We use things like precident instead of common sense. Judges are too scared to make decisions that aren't supported by the actions of other judges (though someone had the balls to set the precident in the first place). Common lawyers are too inept or lack proper experience to understand the rights that their clients have as defendants in a civil suit (the old movie cliche of a worthless public defender comes to mind here).
I understand common-sense is something most people don't have anymore, but when my life or livelyhood is at stake, I would hope the person defending me has a little.
Re:Thank you for your efforts. (Score:5, Interesting)
I think we need a -1 asshole option
Honestly, this doesn't make it 'easier' to do, this makes it more just to people. Regardless of your position on downloading music, you can't sanely argue that it's right that someone pays upwards of 2000 times what the damage is; there is no 'deterrence' feature to these rulings, as it is a civil matter. In fact, the only point of such rulings is retribution and punishment; there is no legal basis, as far as I am aware, for allowing civil rulings to include a deterrence factor.
+5 Insightful? +3 Informative? (Score:3, Interesting)
Re:Hey NewYorkCountryLawyer (Score:3, Interesting)
Yeh, we all thought you were fighting the good fight from your Mom's basement*.
On a serious note though, nice work, Mr NYCL. You are the first and only legal eagle I've come across who is well-grounded and rooted in reality. I hope others will follow your lead (if they aren't already).
Some men are pioneers and others are followers. You Sir, are a fine pioneer and for that we commend you. Man, you're like the legal profession's Columbo. Do you have a Mac? ;)
Interesting... (Score:5, Interesting)
FTA: Only a single case in four years, Capitol v. Thomas,11 has ever gone to trial, and that one only because the judge denied the defendant's attorney's motion for leave to withdraw.
The possible reasons behind this interest me:
It seems that only the most unconscionable, reckless, and irresponsible corporate officers would authorize settling a debt for pennies on the dollar, yet this is exactly what the likes of Vivendi, Sony, etc... propose with their settlement offers. For this to be a legitimate debt, the CEOs of said corporations are breaching their fiduciary responsibility to their shareholders.
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?
I'm waiting for them to get sued under RICO.
Re:Thank you for your efforts. (Score:5, Interesting)
Some courts have made pronouncements to the effect that the court does not "understand the technology" well enough to make the dismissal determination, and that therefore the determination should be made after completion of pretrial discovery. I submit that, if the court does not understand the technology well enough, it means that the plaintiffs have not pled their claim well enough and their complaint should be dismissed.
Thanks, NYCL.
Re:Question for NYCL... (Score:3, Interesting)
It doesn't matter if MediaSentry is allowed to make copies, the person uploading the file still does not have permission to distribute the file. It doesn't matter who they are distributing to, it matters that they can't legally distribute the file. Unless the copyright holder explicitly gives me permission to distribute the file, I can't legally make a copy for anyone, even if they can legally have or make a copy.
Re:Great paper, still reading... (Score:3, Interesting)
OK. Your immediate question would seem to have a parallel in books and similar things. There are any number of books, bibles, collections and whatnot that include some sort of language up front that says something to the effect that you may copy and use up to so many words.
Lemme look... Yup. NIV states the following:
The NIV text may be quoted in any form (written, visual, electronic or audio), up to and inclusive of five hundred (500) verses without express written permission of the publisher, providing the verses quoted do not amount to a complete book of the Bible nor do the verses quoted account for 25 percent or more of the total text of the work in which they are quoted.
Notice of copyright must appear...
So... If what you're suggesting has any validity, it would seem to undercut the ability to provide this provision. That is, why would anyone need to care? It would seem the distribution (not clear about downloading) of the chunk would still violate copyright. And remember, these days with P2P apps, most folk are uploading and downloading the same file simultaneously.
Now, having said that, a much more interesting angle of your question is how anyone would handle your original question were it recast a bit...
For example, if I scramble the tar out of the original file and parse it into scrambled chunks and provide a program to put it back together. All these chunks and the program are similarly distributed across a typical P2P application. Now, who's doing what that violates copyright?
If I take a bunch of these chunks and turn them into bitmaps, png files or whatnot and distribute these, then what? Things get much, much more interesting in a digital age where the same byte-stream could theoretically be any number of things. If I download the first billion digits of pi and this somehow includes the byte stream of a copyrighted song, has anyone violated the derivative works of copyright?
What options do WE have? (Score:3, Interesting)
The article does raise a question for me, however, as a standard person that could get caught up in something like this. If I were to get a judge who turns a blind eye to these seemingly common sense parts of a due process, would there be anything I could do to demand that I be given the rights to a fair trial, or would such demands be seen as contempt of court? I'm assuming it'd be poor sport to tell the judge that he's not doing his job, and even if granted a retrial, wouldn't win me many points with his replacement.
tl;dr: what's the best way a man can proceed if he doesn't get a fair first trial?
Re:Great paper, still reading... (Score:3, Interesting)
Even better yet, I can say for certain that for each video, there is an exact number assigned to it. A hundred byte file has a number not exceeding 2^800.
This number grows rather large when we talk about 600MB files. However, these numbers are either prime, or composed of multiples of prime. Aside the difficulty of factoring out primes in big numbers, would trading the primes and frequency violate copyright?
Or worse yet, we can describe film data as a 3d graph. If we approximate the set of equations, we can create a "close enough" set of pictures that could be indistinguishable. Would disseminating these equations violate copyright?
Re:Hey NewYorkCountryLawyer (Score:3, Interesting)
The key thing is that the message is getting to the right ears. NYCL's work puts him in a unique position to put the pieces together to show the bigger picture. Hopefully things will improve as a result, at least until the RIAA and MPAA get the law changed. And yes, I'm THAT pessimistic about it.
Re:God Bless Ray Beckerman (Score:3, Interesting)
...I have been joined in this fight by many fine men and women all across the country, lawyers and defendants alike. We learn from each other, and help and support and get strength from each other.
I would be curious to know what sort of network of support is available to defendants. The tone of the article led me to believe it's almost hopeless:
The RIAA's expert witnesses have been deposed only once so far in these cases.
and:
In the contested cases, the defendants are without the resources needed to challenge the plaintiffs' pleadings...
and especially:
Only a single case in four years, Capitol v. Thomas,11 has ever gone to trial, and that one only because the judge denied the defendant's attorney's motion for leave to withdraw.
Re:Judges, Justices, or Department of Justice? (Score:5, Interesting)
A few of the Supreme Court appointees have actually been people without law degrees, and some more have been people who didn't actually first serve as judges in any lesser capacity. In fact, it used to be fairly common for the president of that time to appoint former governors or cabinet members to the court, and some of these had never practiced law, either from the bench or in front of it. What's surprising is that during those times the SCOTUS has been led by someone who wasn't ever a trial lawyer, they dealt with, on average, about 35% more cases per session, and whenever at least one justice wasn't, about 20% more.
Sweet piece of writing, mate (Score:5, Interesting)
I may be a wee bit out of your jurisdiction but I maintain the appeal to fairness and reason presented in your paper holds universal appeal.
(Shakes head, walks away whistling.)
*Yeah, deliberate troll, on the basis that you're allowed to insult your friends. Deal.
Re:Thank you for your efforts. (Score:3, Interesting)
It's always entertaining to see RIAA trolling Slashdot.
Re:Thank you for your efforts. (Score:5, Interesting)
My favorite passage is related to yours.
Allow me to observe that if the court and the court's law clerks and law secretaries (many of whom are "digital natives") do not understand the case, that may be a sign that the plaintiff has none.
Re:Well done (Score:3, Interesting)
They have to. If they didn't, they couldn't win a single case.
When you tried to fight out a "normal" case, with real commodities instead of virtual ones, with the threadbare evidence they have, you'd be thrown out of the courtroom before you're done putting down all those cutsy "exhibit A" tags.
Think about it, what do they have (at best)? A log, telling them that some machine accepted (not even initiated) a transfer of a data chunk. This machine may or may not have done this under the control of the defendent. Provided it was under his control, it may or may not have been his intention to get this file (ever wanted to download a blockbuster and got some gay porn instead? Now imagine this in reverse). And provided it arrived at the IP Address in question, we should still check his WiFi router for piggyback riders...
And so on. Would you want to court with this kind of evidence in your hands to a fair and equal trial?
MediaSentry is the active agent (Score:1, Interesting)
No they don't. MediaSentry downloads from them.
There is a big difference, in that one party is passive and the other is active.
In this instance, MediaSentry is the active party, by virtue of having chosen to download a specific item from a specific other party, and then having initiated the transfer. The other party was passive in this.
The issue hinges on whether "making available" is illegal or not. The actual copying was performed by MediaSentry, and is completely legal since they are authorized by the RIAA to make such copies. No illegal copying has been performed (and hence there can be no claim for copyright infringement) since the copying party is authorized to do so.
The only issue at stake is the status of "making available". MediaSentry only makes authorized copies, so copyright infingement cannot occur.
Re:Admissable (Score:4, Interesting)
Did I just do something bad? (Score:1, Interesting)
Did anyone notice the disclaimer in the PDF's footer?
> This information or any portion thereof may not
> be copied or disseminated in any form or by any
> means or stored in an electronic database or
> retrieval system without the express written
> consent of the American Bar Association.
Re:All that needs to be said (Score:3, Interesting)
Re:Well done (Score:3, Interesting)
Compare
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.
with
Worst of all, in some cases they are richly rewarded for having abused said system so skillfully.
I at least could see a reason why they did it.
Is it unethic? Yes. Are they a shame for their profession? Oh yes, very much so. But there ain't only lawyers who are in the biz for the big buck and don't give a rat's ass about ethics, their clients or the reputation of their trade.
You have the same kind of people in so many professions. Never had a doc that tried to prescribe certain drugs, whether you need them or not, just because he just happens to be in some good standing with a certain pharma corporation, and as long as they didn't really harm you, you had them in your medics. How about taxi drivers that take tourists on an unwanted sightseeing tour across town? And let's not start about the perpetual sale for closure on persian rugs.
But we needn't look that far, we got our share of crooks. Remember Kim "Kimble" Schmitz [wikipedia.org]? Now, I guess few people consider him some sort of "real" computer expert, but what do you know? Maybe lawyers have the same contempt for Jack Thompson and don't consider him a "real" lawyer?
Re:All that needs to be said (Score:1, Interesting)
Now that my dear friend , is exactly the problem.
The government has created a society in which everybody either rolls over belly-up and plays it their way, or faces some serious (money) troubles.
Free speech is only for those who can afford it, or care more about making a change than about maintaining their current lifestyle...
To NYCL.. Questions and a comment... (Score:2, Interesting)
Now that you've published this document, to what extent do you believe that it will be read and absorbed by the judiciary?
What is the liklihood of the judiciary taking notice of your publication rather than reading it one night before bed and waking up the next day as if it had never been written, as they approve their next misjoinder?
Given that it has been targetted at the judiciary and that attorneys aren't judges, is it reasonable to expect that your local attorney will be aware of this publication and thus able to use it as a source of references in defense?
Given the mounting criticism of the RIAA's tactics, especially with publications such as this by yourself, if one were to find themselves in court facing the RIAA after this publication, is it possible to ask for a mistrial or challenge the court's process/decision that has allowed the plantiff to get to where they have? (i.e. challenge the competency of the judge and the decision that was made landing you where you are.)
Finally, a comment - it appeared to end too quickly and there weren't too many typographical errors (I think only "wal" caught my attention.)
Great stuff!.
Re:Thank you for your efforts. (Score:5, Interesting)
Ummm...Then how do you explain this:
http://p2pnet.net/story/3773 [p2pnet.net]
A choice line form that same article...
Re:All that needs to be said (Score:3, Interesting)
RTFA. He's mostly working for free on these RIAA cases. I, for one, salute his efforts.
Am I the only one who notices a resemblance between NYCL's photo (in TFA) and Isaac Asimov? [wwu.edu] If Ray grew a set of insane giant sideburns he'd be a ringer for Asimov!
What happens when the dust settles (Score:3, Interesting)
Somewhat OT, but one thing I've been wondering for awhile. Suppose the RIAA loses a number of cases, gets whacked around in court a fair bit for their dubious legal practices, and in the end clues in that they've alienated a hefty portion of their customer base. What happens next?
What kind of cases did you work before the RIAA shenanigans, and what would you see for the future? I don't see the RIAA finding a cure to their current case of cranial-rectal inversion anytime too soon, but should that ever happen what cases would you focus on in the future. IP? IT?
As you've become somewhat of a "crusader" here for the slashdot crowd, I'm sure many would be happy to see your name crop up in defending similar cases in the IT realm.
Re:All that needs to be said (Score:3, Interesting)
isnt that the definition of a nuisance lawsuit?
Once you add in that the likelihood that the RIAA would prevail if it did go to trial is highly questionable, then yes it is!
The evidence suggests strongly that their intent is to intimidate and shake down rather than to have a genuine wrong righted.
Re:Thank you for your efforts. (Score:2, Interesting)
I read your article, all I can say is it's great.
It's fair to say that RIAA does sometimes target the right people. However, our entire court system is not supposed to be based on the presumption of guilt.
It can also be argued that we aren't putting people in jail. However, that's a lie. If I am forced to pay even $2,000 that's a pretty big chunk of my yearly discretionary spending. Perhaps all. I'm middle class. I can't fathom what happens if the family income is lower income. I know some places that could be 6 months rent (or more).
Can you imagine someone who can't afford rent because of an unproven accusation and a court system that assumes you are guilty.
Forgetting that though, I charge that RIAA has singlehandedly hurt all Americans.
How many people have turned off their home wifi access or encrypted it rather than leaving it open as a direct result of the RIAA lawsuits and the implications that they give.
My wife grew up in a bad neighborhood in Flint Michigan. Someone was stabbed to death on her front yard. No one assumed that she or any member of her family had killed that person and left them laying there. No, of course the police asked if they saw or heard anything. However, they were never brought to court and told that since the murder occurred on their property that they would be tried for the murder, much less that the Judge and prosecutor have met, discussed the case, found them guilty, and are dispatching the police to haul them off to the electric chair for execution.
Can you imagine the kind of world we would live in if that was the case?
I turned off open access wifi thanks to the RIAA and our judges not protecting us with common sense.
Is it the end of the world? No, of course not but it is less friendly. Lock your doors. Lock your cars. Close your windows. Build a fence. Close off your WIFI.
I miss my neighborhood growing up. Very few neighbors had fences, kids played baseball on the streets, Moms and Dads would shout "It's dinner time!"
We've lost that in most places. We have our little me centered looking out for ourselves only world. It's sick and RIAA is contributing to it.
So thank you. Thank you for standing up and saying....look let some common sense prevail.
These RIAA victims are just ordinary people that are living their life doing ordinary things. Some bits of information flying through the Internet don't justify ruining even a single day of a presumed innocent ordinary persons day.
I just barely purchase any music now. I have hundreds of CD's but most of them were bought over a decade ago.
I can listen to the music free on the radio and record it straight to my MP3 player. I can listen to the music free online at places like Pandora.
Their music isn't worth $2000. They sell their licenses to play anything you want to churches, radio stations, bowling allies, and roller skating rinks for a fraction of that.
So sir, you have my respect and appreciation.
Re:All that needs to be said (Score:3, Interesting)
All to well, including spending some time in the local bars doing soundwork for various musicians and then having the chance to see the fees that they paid to just have cover tuned played.
I am working on getting a post or two formatted (actually concerning your client and your other post) as we speak. So I'm pressed for time and you'll have to get the short version.
Basically we were offered a fairly decent sum of cash to go down the coast with the "Further Festival" starters. Geffin paid for that - no one else paid us back then. The contract was the carrot at the end of the stick.
We were enticed, if you will, to perform. We had a great time and made some decent cash. At the end of it all was our dreams. This was our second attempt.
The contract basically said that they owned us. I was all for signing it so I'm not saying I was the right one here, I'm saying I was the wrong one. Our cut was to be on a sliding scale if and when we produced what we were told we could produce and our "product" had to be vetted through Geffin.
The terms I use aren't the right ones but I'll try to give the gist of it...
If we managed to reach a point where we were self sustaining and our actions were able to be considered public enough or popular enough we were financially liable in a percentage. As in, as it was explained to me by Pete who was actually a law student at one point but he mostly drank beer, if we got popular and actually made money and one of us did something stupid that some arbitrary old man decided was too immoral and thus cost the company potential revenue we'd get a lesser percentage.
So, yeah... From that view I understand. I also don't like the idea of someone saying my work has no value either so it is a conflict for me. I guess I agree with copyright within the scope of the intended meaning but not as it is being abused. Fortunately geeking and guitars went along well with each other so now that the weekend is here I'll send your client some and I'll do some posting around.
You are fighting against tyrants who have controlled and throttled the industry for years from either direction and, from an artistic view, made an impossible barrier to entry until recently and still might be considered impossible if the goal is financial benefit. If we go back to the 1950's I wonder who kept who alive... Was it the FCC that kept them intact or was it the recording industry who enabled the FCC to keep going past their expiration date?
I shall return.