RIAA Gets Nervous, Brings In Big Gun 423
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."
Nervous? (Score:5, Insightful)
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:Honestly... (Score:3, Insightful)
They'd sue the hell out of McDonalds if McDonalds offered Starbucks coffee without a license.
Re:Nervous? (Score:5, Insightful)
The abuse of Copyright has gone far enough (Score:5, Insightful)
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.
It proves how stupid they were to begin with (Score:3, Insightful)
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
Re:Honestly... (Score:5, Insightful)
And if this was about people actually selling pirated DVDs, it'd be a different story.
This is closer to suing one person for over $10k per cup of coffee they stole.
I'm going to stick with that for the moment, as it's equally unfair to both sides -- stealing a cup of coffee actually deprives someone of potential revenue, whereas stealing a song is just a copy. But stealing a cup of coffee only feeds you (or your caffeine addiction) for a day -- you'll be back later, either to steal or to buy -- whereas stealing a song means you can listen to that same song again, as many times as you like.
But no matter how you want to spin it, stealing a cup of coffee does not carry a $10k fine. Stealing a song shouldn't, either.
And this is surprising because? (Score:5, Insightful)
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.
Re:Friend of the court? (Score:5, Insightful)
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.)
Re:Honestly... (Score:4, Insightful)
Actually stealing a CD doesn't get you into that, it's copying that does.
Re:Friend of the court? (Score:5, Insightful)
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:Honestly... (Score:5, Insightful)
Re:Honestly... (Score:5, Insightful)
Back before the Internet, copying a song from a record onto a cassette might deprive the RIAA member of a single sale. If that was what we were talking about, you would be correct.
This is not suing someone for downloading a song. This is about putting the song up for everyone on the Internet to download - potentially at least thousands or tens of thousands of people. So comparing it to stealing a single cup of coffee isn't quite correct. It is a lot closer to stealing hundreds of cups of coffee, maybe more.
The problem is, nobody knows how many people downloaded from Ms. Thomas. Nobody. Not even Ms. Thomas. Could be nobody. Could be the entire Internet-using population of the world. Nobody can find out. According to some, this means her liability should be ... nothing. I'm not sure that makes sense either.
Re:It proves how stupid they were to begin with (Score:5, Insightful)
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:Honestly... (Score:5, Insightful)
This is not suing someone for downloading a song. This is about putting the song up for everyone on the Internet to download
I was going by TFS, which says, and I quote:
This is the case where a $222,000 verdict was awarded for downloading 24 songs
Furthermore, "making available" has, in fact, failed in court, at least once -- which means that they would have to show that he was actually distributing it.
The problem is, nobody knows how many people downloaded from Ms. Thomas. Nobody. Not even Ms. Thomas. Could be nobody. Could be the entire Internet-using population of the world. Nobody can find out.
Not strictly true. Depends what kind of logs the filesharing program kept, or her ISP.
According to some, this means her liability should be ... nothing.
I like to call it "innocent until proven guilty", but apparently, this doesn't apply to civil cases.
Re:Honestly... (Score:3, Insightful)
Analog 'copies' have long been considered copies, even thought they really aren't. Dancing around and pretending that you could possibly engineer an encoder that does what you state without ever referring to the original slutmix is just silly non-sense.
Re:Honestly... (Score:4, Insightful)
Their main revenue stream is out-of court.
Really? Is that true anymore? I haven't bought a single RIAA CD in 10 years and I don't think anyone I know has either.
Re:Honestly... (Score:3, Insightful)
And when you throw in fair use, the same string of bits that might be used for 3 different things. Face it, our laws were meant for an analog world, when you use them in a digital context they just are plain stupid
Re:The abuse of Copyright has gone far enough (Score:5, Insightful)
I wouldn't go so far as to end it. A reasonable time - say 30 years - ought to be enough. Romeo & Juliet became West Side Story. Now, Leonard Bernstein's music is still in copyright as is Arthur Laurents (book), and Stephen Sondheim's lyrics....
But, from 1957 when the play opened on Broadway, only Sondheim is still alive. That show is 51 years old and by our current copyright laws it could remain in copyright (for one or more of the three creations) for at least another 50 years. What makes a fine derivative work like West Side Story so special that another Bernstein or Laurents or Sondheim couldn't build onto West Side Story and create another masterpiece - but not for another 50 years?
As for that damned mouse and its creator - Disney needs less income - it owns so much now that it can't keep track of it all.
Re:Only on Slashdot (Score:4, Insightful)
Actually... he's an incredibly respectable lawyer who is incredibly knowledgeable on the subject, and writes the entire story based off good, solid facts. His only fault is for using a good lead-in sentence to get you hooked.
Re:Honestly... (Score:5, Insightful)
but it could be argued that the torrents on the site because they are MP3s and not the original CDs, are different.
No, it couldn't. Regardless of the format, be it MP3, CD, cassette, 8 track cartridge, vinyl LP or Edison phonograph, if the order of notes and chords, lyrics, style, and performance are the same, it's the same as far as copyright is concerned.
Or, to put it another way, if the listener can identify it as the same song, it's the same song. The actual order of 1s and 0s is irrelevant, because they're only a storage medium that has to be translated back to something you can hear. CD and MP3 differ only in the accuracy of reproduction; if encoding to MP3 changed the fundamental nature of the music it would be an utterly useless format.
Re:And this is surprising because? (Score:5, Insightful)
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:Honestly... (Score:5, Insightful)
Oh please. I challenge you to come up with a string of 1000 bits that has 3 different (meaningful!) meanings, let alone a string of 4 million bits, which is much more representative of mp3 compressed audio. If you manage to accomplish that, I challenge you to find 9 more.
(Note that there are [301 digit number starting with 1 that the lameness filter will not accept] different 1000 bit numbers...)
Copyright terms and so forth do not fit current technology, but the digital/analog divergence that you are arguing is the worst kind of logical contortion (the kind where you simply ignore inconvenient facts and information).
Precedent (Score:5, Insightful)
.
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.
Re:And this is surprising because? (Score:5, Insightful)
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.
Re:Honestly... (Score:3, Insightful)
No, this is actually like buying the newspaper and then leaving it on a bench in the park, for (potential) people to read.
You don't get sued if you leave the newspaper now, do you?
Not all people that see the newspaper will read it (download but never play or not download at all).
One person may actually take the newspaper and throw it in the trash (download and delete right away).
Other person may take it from the bench simply because he spilled coffee on his copy and he wants a better newspaper (download for backup or improvement over original copy).
Also, just because the song is available for others to download, it doesn't mean the owner intended to have other steal it (in some cases).
Re:It proves how stupid they were to begin with (Score:5, Insightful)
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.
Re:Honestly... (Score:3, Insightful)
Yes, all that and even if it wasn't, an MP3 would certainly be a derivative work of the CD.
Re:It proves how stupid they were to begin with (Score:3, Insightful)
<Something deep here>
Re:Honestly... (Score:1, Insightful)
Innocent until proven guilty does apply to civil cases in the sense that jurors are not to come to a conclusion about the case until the end after the judge's instructions have been given and closing statements made. If you serve on a trial of any length you'd hear the judge say that to keep an open mind at least twice daily.
It does not apply in the sense that it's not beyond the shadow of a doubt and the outcomes are often about liability rather than anything that could reasonably be considered guilt.
Sometimes for one reason or another a summary judgment will be entered on a particular issue, but as far as juries go who is found to be responsible or at fault is held to the end.
I'm just posting this AC style because I'm on the jury for a current case and I'd rather not have the one off chance of this screwing with things.
Re:The abuse of Copyright has gone far enough (Score:5, Insightful)
No. A law that tries to control the right to copy makes no sense in a world where everyone has every day access to copying machines. The direct social benefits of copying cannot be denied by the naive backwards belief that restriction of that copying is the best way to encourage the creation of new works. We now know that is wrong. We now know that, in fact, the exact opposite is true - people create more new works when they have free access to the work of others. Some of us have known this for centuries, but we tolerated the nonsense of the singers and song-writers because there really wasn't much harm being done. Now this absurd conspiracy against the public interest must be stopped.
Re:The abuse of Copyright has gone far enough (Score:5, Insightful)
"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.
Re:It proves how stupid they were to begin with (Score:5, Insightful)
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.
Re:Honestly... (Score:4, Insightful)
Why 1000 bits? I wasn't aware copyright has any restrictions on length. Why does it have to be "meaningful" in any human context? In the digital world, every single bit is "meaningful."
I hereby copyright "1110100100101000." In the music word, even a sample of a work is considered infringement so any file that has that binary sequence in it is infringing.
I can guarantee it appears in every single GIF image ever made.
Therefore, all GIF images - or at the very least all images created or copied after this moment - are violating my copyright. Pay me.
=Smidge=
Re:Honestly... (Score:2, Insightful)
1000 bits because that's the number that the other fella spoke (it also happens to be hilariously small and enormously variable).
As far as why it has to be meaningful in a human context, the reason is because the digital world is a whole lot less relevant than various judges are, and they tend to be human and stubborn.
Also, "I hereby copyright" doesn't actually mean anything. I can say "I hereby copyright 'Smidge'" until I turn pink and grow roses out of my ears, but that doesn't actually have any impact on your ability to use the word.
Re:And this is surprising because? (Score:4, Insightful)
Responding to the above (and not your post in general), it's worth noting that:
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.
Re:Honestly... (Score:5, Insightful)
I thought about that as I was walking out of a store last night, past a rack of CDs and DVDs for sale. If I were to swipe a DVD on my way past, and got caught, the consequences for shoplifting would be absolutely trivial, compared to getting caught downloading the same movie over the Internet, which takes longer, doesn't include the bonus features, and would probably require me to burn it to a DVD-R to free up space on my file server. And yet, stealing a DVD actually deprives the store of physical property that they paid for, while downloading via BitTorrent doesn't harm anyone.
How many people are going to switch from downloading to shoplifting because they're concerned about the possible repercussions?
Re:Honestly... (Score:3, Insightful)
We need to build a database of melody sequences which are in the public domain and use that to pry any modern melody that uses those sequences into the public domain.
The fact that a song contains elements from the public domain does not place that song in the public domain. It just means that the elements that were already in the public domain can be freely reused -- the rest of the copyrighted song is still copyrighted.
Why not both? (Re:Cannon fodder?) (Score:3, Insightful)
Re:Honestly... (Score:3, Insightful)
One thing that always gets a laugh out of me are all the people who claim they refuse to buy RIAA member released CDs thinking that will somehow stop the RIAA
I don't buy RIAA CDs, but I do buy quite a few other CDs. If more people did the same, then the non-RIAA labels would be able to say 'our sales are up' whenever the RIAA says 'CD sales are down!'
Re:Honestly... (Score:1, Insightful)
The problem is, nobody knows how many people downloaded from Ms. Thomas. Nobody. Not even Ms. Thomas. Could be nobody. Could be the entire Internet-using population of the world. Nobody can find out. According to some, this means her liability should be ... nothing. I'm not sure that makes sense either.
Actually I think that if the exact number of distributions of hte said song could not be found it would be quite fair to use the mean value.
The mean value is quite easily calculated and applies for all p2p-tecnologies I am familiar with.
The formula is (number of times the file have been transfered)/(number of persons involved)
The mean value can never be larger than 1.0 unless persons deliberatly dowloads the said file more than once. (This is not entierly true, the value can temporary be larger, but it will eventually become stable at 1.0)
If the actual number of distributions a person have made is not known, anything above 2 would be quite a claim. (More than 100% above the average of all persons involved.)
Re:Honestly... (Score:2, Insightful)
Indeed. Felony theft usually requires theft of something valued over 100 dollars, so theft of any CD or DVD would be misdemeanor theft.
Which almost never results in any jail time, and often has no fines beyond having to return or pay for what you took. Sometimes you'll get slapped with a $100 fine or so on top of that. (At least on the first offense.)
However, take a CD, rip it to your computer, put it on P2P, and not have anyone even download it, and suddenly it's $10,000.