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RIAA Gets Nervous, Brings In Big Gun 423

Posted by Soulskill
from the headlines-that-would-be-better-if-they-were-literal dept.
NewYorkCountryLawyer writes "I guess the RIAA is getting nervous about the ability of its 'national law firm' (in charge of bringing 'ex parte' motions, securing default judgments, and beating up grandmothers and children) to handle the oral argument scheduled to be heard on Monday, August 4th in Duluth, in Capitol v. Thomas. So, at the eleventh hour, it has brought in one of its 'Big Guns' from Washington, D.C., a lawyer who argues United States Supreme Court cases like MGM v. Grokster to handle the argument. This is the case where a $222,000 verdict was awarded for downloading 24 songs, but the judge ultimately realized that he had been misled by the RIAA in issuing his jury instructions, and indicated he's probably going to order a new trial. But, not to worry. A group of 10 copyright law professors from 10 different law schools and several other amici curiae (friends of the court) have filed briefs now, so it is highly unlikely the judge will allow himself to be misled again, no matter who the RIAA brings in as cannon fodder on Monday."
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RIAA Gets Nervous, Brings In Big Gun

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  • Nervous? (Score:5, Insightful)

    by DesScorp (410532) <DesScorp.Gmail@com> on Friday August 01, 2008 @07:51PM (#24442783) Homepage Journal

    I think they're just bringing in the best hired gun that they can. No different from any other company or organization in that respect. This case is absolutely huge to them. Of course they're going to get the best counsel they can. Wouldn't they be foolish if they didn't?

    • Re:Nervous? (Score:5, Insightful)

      by seanonymous (964897) on Friday August 01, 2008 @07:54PM (#24442817)
      Apparently industries are a bit like stars, in that the larger they are, the more they take with them when they collapse.
    • by Nymz (905908) on Friday August 01, 2008 @08:19PM (#24443029) Journal
      ...and here is his unique game plan.

      1) Ban reporters from courtroom
      2) Turn off the lights
      3) Win!!!
    • I'd even argue that it's un-American. And the good, Jeffersonian kind of American. Every entity in court should have the best representation possible. Monetary issues obviously come into play, but that's the "possible" part.

    • by xs650 (741277)
      "Wouldn't they be foolish if they didn't?"

      They have already established the foolish part by using unlicensed PIs etc.
    • Yes, Nervous. (Score:4, Interesting)

      by schon (31600) on Saturday August 02, 2008 @12:05AM (#24444615)

      they're just bringing in the best hired gun that they can

      OK, so then why didn't they bring this guy in for the other parts of the trial?

      Of course they're nervous.

  • by 4D6963 (933028) on Friday August 01, 2008 @07:58PM (#24442857)
    Sounds pretty epic! Do they allow people to take pop-corn into the court?
  • by grolaw (670747) on Friday August 01, 2008 @08:00PM (#24442883) Journal

    And, this seems like a good stopping point. As of 1976 we had 2 26 year terms for a copyright, the act was amended that year and has been amended so many times since that whole treatises exist just to explain the changes in the law over a 32 year period.

    What is particularly outrageous is the Sonny Bono extension - or, Save Mickey from the Public Domain Act. That crazy amendment brought material that was in the public domain back into copyright!

    The great argument was that the authors would be more motivated to create with longer royalty periods - the only problem: I haven't heard any new creations from George and Ira Gershwin - the lazy bastards (ok, they're dead). The real reason to extend and extend these terms is to allow the corporate assignees to continue to profit. Disney was a strong backer because Mickey was about to become public domain - and that mouse is worth millions to its corporate masters.

    The RIAA has been raking in the loot for 10-15 years now - and it is about time to put a stop to this kind of bs. I think that Monday will be the beginning of the end of the RIAA's tactics.

    • by TheLink (130905) on Friday August 01, 2008 @09:27PM (#24443519) Journal
      "That crazy amendment brought material that was in the public domain back into copyright!"

      Now that is what I call stealing.

      Anyway, if people think the pace of progress is getting faster and faster (or want it to be so), and that marketing and distribution is better than years ago, then it makes no sense that copyright terms should be getting longer and longer.

      Logically they should be getting shorter and shorter.
      • by Jah-Wren Ryel (80510) on Friday August 01, 2008 @09:45PM (#24443657)

        "That crazy amendment brought material that was in the public domain back into copyright!"

        Now that is what I call stealing.

        Hell, just extending the term of copyright is blatant theft from the public domain. The works were created under the terms of the social contract that existed at the time. The creators agreed to the terms, the public agreed to the terms when it paid the creators and their distributors. Then the lawyers yanked the rug out from underneath us, kept the money and kept the creations.

        • by Reziac (43301) * on Saturday August 02, 2008 @01:12PM (#24448791) Homepage Journal

          "Hell, just extending the term of copyright is blatant theft from the public domain. The works were created under the terms of the social contract that existed at the time."

          That's a very good point. How is this different from retroactive punishment for a crime that didn't exist when you committed the act? A: it's not -- the only difference here is that the PUBLIC, rather than an individual, is being "punished" by a retroactive penalty which did not exist at the time the "crime" (creation of copyrighted work) was "committed".

          So -- extending copyright extends the "punishment" the public endures for allowing content owners their limited monopoly (ie. copyright).

          (That didn't come out as clear as I'd hoped, but you get the idea...)

    • by Blackhalo (572408)
      "What is particularly outrageous is the Sonny Bono extension" I concur. The most egregious theft of public property in the history of the nation, IMHO.
    • by Blackhalo (572408) <jmattj@NospAM.ix.netcom.com> on Friday August 01, 2008 @09:41PM (#24443625)
      Of course the real breadwinner for Disney is Pooh. Also saved from public domain by Bono, may he burn in hell for his crimes against the people he should have served.
      • Re: (Score:3, Informative)

        by Dun Malg (230075)

        ...Also saved from public domain by Bono, may he burn in hell for his crimes against the people he should have served.

        It's a bit unfair to blame the Sonny Bono Copyright Act on im, as he died 9 months before it passed--- it was named after him posthumously. However, his burning in hell is still appropriate, as (in his stated opinion) he thought copyright should last forever. What a fucking greedy shithead moron. The dangers of electing entertainers to public office...

  • by LM741N (258038) on Friday August 01, 2008 @08:04PM (#24442911)

    1. Using a crappy law firms
    2. Using unlicensed PI's to supposedly download songs
    3. Using a business model from 50 years ago in a post Y2K world
    4. Not figuring out for years how to make money off of music the old fashioned way- by earning it through new ways of distribution, not by suing people.
    5. By potentially generating so much case law that even the MPAA will have to give up as well

    • by cdrguru (88047) on Friday August 01, 2008 @08:34PM (#24443137) Homepage

      I think you miss the point with #4. There is no revenue in recorded music anymore. I know I'm not buying any, and nobody I know is buying any. Anyone that knows how to is downloading it for free. Some folks think they are clever by saying they will eventually buy something when it is the right price and right quality. In the meantime, they are downloading as well and not paying.

      I'd like to hear about a business model whereby the artists produce the music and put it out on the Internet for free. Where is the "business" here? If I download and never, ever even think about going to a concert or buying an overpriced T-shirt, where exactly is the "business"? I surely do not see one.

      I think the "business" of music is pretty much over. There are the people that know the world owes them an audience because they are so great, and there are the people that love the idea of singing or playing and will do it no matter if anyone pays them or not. We don't need more of the first sort - watch the beginning of the American Idol season for some examples. We may benefit in the end from the latter sort, but they gotta eat too. So there will be very few of them. Too bad, really.

      • Re: (Score:2, Informative)

        by entrigant (233266)

        I have membership accounts with emusic.com and magnatune.com. There, now you know someone who is buying music.

      • by LM741N (258038)

        Sorry, but I'm going all vinyl. So music files in my computer are of little importance. I love looking around in used record stores, occasionally finding some gems on the cheap.

      • Re: (Score:3, Informative)

        by dahitokiri (1113461)
        Nine Inch Nails "Ghosts I-IV".

        A week after the album's release, the official Nine Inch Nails site reported over 750,000 purchase and download transactions, amassing over US$1.6 million in sales. Pre-orders of the $300 "Ultra-Deluxe Limited Edition" sold out in less than three days of its release.

        Ghosts I-IV [wikipedia.org]

      • I think you miss the point with #4. There is no revenue in recorded music anymore. I know I'm not buying any, and nobody I know is buying any. Anyone that knows how to is downloading it for free. Some folks think they are clever by saying they will eventually buy something when it is the right price and right quality. In the meantime, they are downloading as well and not paying.

        Apple Apparently Turned $570 Million Profit from ITunes Last Year [wired.com]

        Quote: "So when revenue is brought back to the States, Billb
      • Re: (Score:3, Insightful)

        by smoker2 (750216)
        The recording industry as we know it has been going for around 60 years. And in all that time, all that has changed (that they have provided) is the packaging. Vinyl, 8 track, cassette, cd, all of which needed specialist manufacture. Now they have nothing left to offer the artist, except maybe an advance - which they won't get if there is no "product" to recoup the advance from.
        <Something deep here>
      • by dpbsmith (263124)

        "I'd like to hear about a business model whereby the artists produce the music and put it out on the Internet for free."

        The same business model whereby writers write books, the publisher sells a single copy to a library and fifty people borrow it for free.

        The existence of the public library doesn't stop people from buying books. On the contrary, libraries creates book-lovers and sustain the book business.

      • by Jah-Wren Ryel (80510) on Friday August 01, 2008 @09:56PM (#24443741)

        I'd like to hear about a business model whereby the artists produce the music and put it out on the Internet for free. Where is the "business" here?

        Patronage. Mass patronage.

        Where anybody who would like the artist to produce another creation (album/song/book/poem/architectural design/movie/etc) for whatever reason can put money into a group escrow account. When the escrow account balance reaches the creator's asking price, the money is pocketed and the artist puts the work out on the internet for free.

        As for how the artist gets started? Gives it away for free, just like they do today. The only difference is that instead of giving away their first four albums to the MAFIAA for free, they give one (or more if the first one sucks too much to generate an audience) directly to the public.

      • by bill_mcgonigle (4333) * on Friday August 01, 2008 @10:56PM (#24444215) Homepage Journal

        I know I'm not buying any, and nobody I know is buying any. Anyone that knows how to is downloading it for free.

        I buy plenty of music. On CD if I care about the quality (maybe 4-5 CD's a year). On Amazon if I don't (maybe an mp3 a week, though Pepsi has been upping that a bit for me). On P2P if it's otherwise unavailable (out of print, not digitized).

        What possible reason could there be for not spending 89 cents for a song you want that's easy to find, of good quality, and immediately available? I mean, unless you're morally opposed or a hoarder.

        I'd like to hear about a business model whereby the artists produce the music and put it out on the Internet for free. Where is the "business" here? If I download and never, ever even think about going to a concert or buying an overpriced T-shirt, where exactly is the "business"? I surely do not see one.

        I wrote this [slashdot.org] here about 8 years ago. It mostly still applies. Concert tickets are too expensive - that means there's more demand than supply. So even if you don't go to concerts and buy $40 T-shirts, that has no bearing on the music economy in general. Seriously, if a band you liked was in town playing the local theatre for $10 a seat you wouldn't go?

    • by Amorymeltzer (1213818) on Friday August 01, 2008 @09:19PM (#24443445)

      I hate the RIAA as much as the next /.er, but let's not forget - that business model fucking rocked. Not for the artists, but for them. And they're not the artists, they're themselves. I know if my seven-figure paycheck depended on screwing everyone else, I'd just ask where the condoms were!

      To quote Upton Sinclair,

      It is difficult to get a man to understand something when his salary depends upon his not understanding it.

  • Friend of the court? (Score:5, Interesting)

    by Opportunist (166417) on Friday August 01, 2008 @08:05PM (#24442931)

    Well, I didn't know the phrase amicus curiae before, so I looked it up in Wikipedia and... I can't help it, it sounds a tad bit like "lobbying for courtrooms".

    How do courts keep this from happening? Or do they, actually?

    • by Atlantis-Rising (857278) on Friday August 01, 2008 @08:15PM (#24442993) Homepage

      The Court can decide what briefs it accepts or not.

      Arguably, I think the briefs are misfiled and that the process of the amicus curiae is being abused; A good amicus brief should, in my opinion, not be filed in support of any particular side, but in defense if a particular argument of law or explanation of fact.

    • by adminstring (608310) on Friday August 01, 2008 @08:16PM (#24442995)
      Unlike letters to members of Congress from lobbyists, amicus briefs are generally not sent with a check stapled to them.

      This means that they are not really a problem the way lobbying Congress is a problem, because amicus briefs contain nothing to influence a judge other than the merit of their arguments (and maybe a bit of the perceived prestige of whoever wrote them.)
    • by 99BottlesOfBeerInMyF (813746) on Friday August 01, 2008 @08:21PM (#24443041)

      Well, I didn't know the phrase amicus curiae before, so I looked it up in Wikipedia and... I can't help it, it sounds a tad bit like "lobbying for courtrooms". How do courts keep this from happening? Or do they, actually?

      For the most part, amicus curiae briefs are encouraged, much like pro bono work. Anyone with enough money can hire lawyers to exhaustively research legally grey areas looking for precedents. Friend of the court briefs are generally used to help even the odds for people without those kind of resources. In this case, for example, an important precedent being discussed and high priced lawyers funded by a huge cartel (convicted of criminal actions) is suing an individual with no real resources. When concerned experts volunteer their time to help the court have all the information from the other side, well I think that is a good thing.

      • Re: (Score:3, Informative)

        For the most part, amicus curiae briefs are encouraged, much like pro bono work. Anyone with enough money can hire lawyers to exhaustively research legally grey areas looking for precedents.

        This situation is extremely unusual. In this case the judge actually invited amicus curiae briefs [blogspot.com].

  • by Anonymous Coward on Friday August 01, 2008 @08:13PM (#24442977)

    Having good lawyers on both sides can really cut through a lot of the fluff and the misery in a case like this. Of course, if the lawyers deliberately want to exacerbate the problem and the judge isn't on the ball, they can make things worse. But otherwise, why would the RIAA not want the best lawyer it can get?

    They've already had their expert "ambushed" with Daubert in the previous UMG vs. Lindor deposition that Ray Beckerman posted. This is 100% a rookie mistake. A competent firm would have briefed the expert and all related parties extensively on Daubert to ensure this doesn't happen. The downside for the opposition is that a better lawyer has a better chance of avoiding these rookie mistakes, so you have to actually argue facts rather than procedure.

    Do all of you who rail against the RIAA really want them defeated because they hired crappy lawyers, or do you want them defeated on the merits? I fear that the answer from the Slashdot crowd at large is "either way, doesn't matter" but I think that's a little intellectually dishonest.

    In P2P file sharing, copyright infringement is taking place. It is almost certainly NOT fair use. If you don't like it, you really need to be writing your members of Congress to change Copyright law. An issue like Capitol v. Thomas, where the issue seems to have shifted toward the magnitude of damages, is something that can be fought in the courts. And if it is to be fought in the courts, let it be fought on the essence of the issues and not on accidental factors such as the quality of the attorneys involved.

    • by wrook (134116) on Friday August 01, 2008 @09:03PM (#24443323) Homepage

      Do all of you who rail against the RIAA really want them defeated because they hired crappy lawyers, or do you want them defeated on the merits? I fear that the answer from the Slashdot crowd at large is "either way, doesn't matter" but I think that's a little intellectually dishonest.

      Personally (and I don't think I'm alone in this) I want to see them defeated because of the tactics they are using. It's not so much that they have crappy lawyers (I couldn't say one way or the other), but that they are using crappy evidence in order to intimidate people into coughing up money. I couldn't say how many people who get hit with these lawsuits are *actually* infringing copyright. But what I can say with some conviction is that the evidence the RIAA is presenting should not be enough to decide the case. Couple that with the shotgun approach to selecting defendants (targets), and it really makes me want them shut down.

      Many people on Slashdot (possibly even most) make their living from creating copyrighted works. The people here are in an interesting position of being creators *and* users. Many of us would prefer to see different business models emerge that make life better for users. This, despite the fact that we are creators (imagine that!). Given our position, I don't think it's terribly unusual that we have a bias against distributors, who are neither creators nor users. We would prefer that the link between creator and user be shortened -- to 0 if possible.

      So while I understand your point, I think it's quite reasonable for many of us to despise the RIAAs tactics, fear their use of shoddy evidence *and* wish that they (and their ilk) disappear for good. From our perspective, life only gets better without the distribution cartels.

    • Re: (Score:3, Interesting)

      by Celarnor (835542)

      In P2P file sharing, copyright infringement is taking place. It is almost certainly NOT fair use.

      All of the times I have downloaded music via torrents, I either already own the piece that it was ripped from, or the music was licensed in such a way that this form of distribution was allowed.

      Fair use says (or it should, at any rate; it may not have been tested in courts yet) I can have a copy of my music that isn't encumbered with DRM crapware; if I've bought my music outright, then I'm sure as hell entitled to play it on anything I want--not just in itunes and on my iPod Touch.

      The RIAA wants you t

    • In P2P file sharing, copyright infringement is taking place. It is almost certainly NOT fair use.

      I think most /.'ers want "Fair use" to be extended to include any copying/distribution that is profit free.

      I know I do.

    • by magus_melchior (262681) on Friday August 01, 2008 @09:14PM (#24443405) Journal

      Do all of you who rail against the RIAA really want them defeated because they hired crappy lawyers, or do you want them defeated on the merits?
      I realize that the case law precedent would be stronger if they were defeated on a thorough review of their arguments, but if a loss by a technicality grants an injunction against their driftnet attack on their own customers, I for one am all for it.

      And, aside from the idiots who screwed up in UMG vs. Lindor, they're not crappy lawyers, IMO. They are lawyers who know the law and procedures enough to avoid following the intended purpose. That's not easy to do, unless you divest yourself of your conscience and common sense. After reading NYCL's article summarizing their tactics, I am sure many here would agree that they should at least be investigated and sanctioned, if not disbarred.

      That said, if this big-shot lawyer plays by the rules and if he's defeated by reason in the Capitol hearing, this will effectively ice the RIAA's campaign and crush any hope of the same tactic by the MPAA and BSA. I'm thinking NYCL's excited about this, as the RIAA has spent time and resources to try to keep the courts from seeing that they are acting much like the stereotypical mafia boys roughing up innocent people for payment. I'm sure you'll agree that while there are legions of downloaders grabbing infringing content, there are far more people who only use the Web and email without any clue what a P2P application is.

    • by Blackhalo (572408)
      I just want them defeated. On merit would be a bonus.
    • by ProteusQ (665382) <dontbother@nowhe r e . c om> on Friday August 01, 2008 @11:08PM (#24444279) Journal

      In P2P file sharing, copyright infringement is taking place. It is almost certainly NOT fair use.

      Responding to the above (and not your post in general), it's worth noting that:

      1. We have a international cartel engaged in price-fixing their product.
      2. This cartel uses their profits to have laws rewritten so that their ownership is extended ad infinitum.
      3. This cartel uses the weight of the law to prop up a revenue model that has been outdated by current technology.
      4. When all else fails, they claim that they are "victims" of "piracy".

      Victims? If these people had owned the telegraph companies 120 years ago, they would have sued Bell out of existence. If they had been a blacksmith cartel, cars would have been outlawed because auto owners hadn't purchased a license to use the roads, which were clearly designed for horse-drawn buggies.

      Piracy? As in rapine and murder? Really? Sounds like guilt bubbling to the surface to me. Deep down, these people know they are thieves. You can't be a middleman and take 70%+ of the profit without stealing from someone.

      Back the "good old days" of Napster, I discovered Garrison Starr, David Shutrick, and got hold of the remaining episodes of "The Goon Show". If Napster had been legalized in the same way that cable television was in the early 80's, I would have paid a subscription fee to stay on it. I would certainly pay one now. Why? Because I never would have come across these musicians and comedians otherwise. But the content providers shot themselves in the foot not because of their fear of piracy but because of their desire to control the entire entertainment market from top to bottom. That is what they held out for, that is what they still hold out for, and that is why they want to sue P2P users, censor Usenet, eliminate the public domain, and move to a model where all entertainment is leased on a per-use basis.

      In actual fact, downloading is a lot like speeding; nearly everyone is a little guilty, and a few are extremely guilty. But no one in America would claim that a $200,000 speeding ticket is justified. And in the case downloading, it's only the international cartel, clinging to it's outdated business model, that's holding us back from finding a revenue model that will allow legitimate transactions. We would not be having this discussion today if this cartel wasn't using its full force to stop the inevitable: a change in business model which they will not profit from.

    • jury nullification (Score:3, Informative)

      by falconwolf (725481)

      In P2P file sharing, copyright infringement is taking place. It is almost certainly NOT fair use. If you don't like it, you really need to be writing your members of Congress to change Copyright law.

      Going to congress isn't the only way to change laws. Probably the most important part of citizenship is on a jury and when on a jury the citizen has the most power. If a juror believes a law is wrong, and don't let any judge tell you otherwise, it's their duty to vote innocent and send the message the law is b

  • Please...think of the grandmothers.
  • to go to their level and start to use the Chewbacca defense.
  • Everyone brings in their big guns in on appeal.
    .

    Granny is not the victim - the incontinent - drooling - rocking-chair stereotype the Geek chooses to project.

    These days Granny is sitting on the Bench.

    Little Red Riding Hood has got herself a Wii and is whooping it up in the basement with the Big Bad Wolf - and don't think for a moment she doesn't know it.

    The appellate judge is quite deliberately from the removed from the pumped-up moral outrage and melodrama of the courtroom. It is perhaps just as well, be

  • Precedent (Score:5, Insightful)

    by QuietLagoon (813062) on Friday August 01, 2008 @09:14PM (#24443401)
    It is not about money, it is about precedent.

    .

    Money is strictly short-term, precedents affect the long-term.

    The RIAA want precedents to be set such that they can continue to harass innocent people without regard for the consequences of their mistakes.

  • by Kingrames (858416) on Friday August 01, 2008 @09:25PM (#24443499)

    Now we know they're almost done!

    From video game experience, we all know that the boss brings out his most dangerous and powerful weapon right before you win.

  • by viking80 (697716) on Friday August 01, 2008 @09:49PM (#24443677) Journal

    The republican party is prioritizing business interests over consumers any time the have a chance.
    And the democrats are all cozy and in bed with the Hollywood elite.

    Expect RIAA, Viacom, Hollywood and all other companiers with IP content to consistently get everything they want from Wahington. As a consumer, dont even try to get your hopes up. You will continue to get screwed.

    Just as a reminder: After entertainment became a big business with lobbyists around 1920, *no* new copyrighted work have expired. Every 10 years or so, it has been extended by at least 10 years, and is now about two lifetimes.

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