RIAA Brief Attacks Free Software Foundation 554
NewYorkCountryLawyer writes "The RIAA has requested permission to file a response to the amicus curiae brief filed by the Free Software Foundation in SONY BMG Music Entertainment v. Tenenbaum, the Boston case against a Boston University grad student accused of having downloaded some song files when in his teens. In their proposed response, the RIAA lawyers personally attacked The Free Software Foundation, Ray Beckerman (NewYorkCountryLawyer), and NYCL's blog, 'Recording Industry vs. The People.' The 9-page response (PDF) — 4 pages longer than the document to which it was responding — termed the FSF an organization 'dedicated to eliminating restrictions on copying, redistribution, and modifying computer programs,' and accused the FSF of having an 'open and virulent bias against copyrights' and 'blatant bias' against the record companies. They called 'Recording Industry vs. The People' an 'anti-recording industry web site' and stated that NYCL 'is currently subject to a pending sanctions motion for his conduct in representing a defendant' (without disclosing that plaintiffs' lawyers were 'subject to a pending motion for Rule 11 sanctions for their conduct in representing plaintiffs' in that very case)."
Things I found interesting (Score:5, Informative)
I am not a lawyer but my understanding that amicus curiae briefs came from parties not directly involved with the case but are very rarely neutral. From wikipedia [wikipedia.org]: "The role of an amicus is often confused with that of an intervener. . . The situation most often noted in the press is when an advocacy group files a brief in a case before an appellate court to which it is not a litigant. . . Non-profit legal advocacy organizations such as the American Civil Liberties Union, the Electronic Frontier Foundation, the American Center for Law and Justice or NORML frequently submit such briefs to advocate for or against a particular legal change or interpretation."
Again from wikipedia: "Amicus curiae or amicus curiæ (plural amici curiae) is a legal Latin phrase, literally translated as "friend of the court", that refers to someone, not a party to a case, who volunteers to offer information on a point of law or some other aspect of the case to assist the court in deciding a matter before it." Offering additional information is the point of amicus curiae.
Re:First they ignore you... (Score:3, Informative)
We've been on stage 2 for a looong time now. Perhaps even on the beginnings of stage 3, depending on who you ask.
Re:Not completely inaccurate. (Score:2, Informative)
It's actually from The Open Directory (DMOZ) [dmoz.org].
Re:Anti-Copyright? (Score:3, Informative)
Not really. FSF created the GPL to use copyright to enable it to specify the terms to keep code open and free. If there were no such thing as copyright, there would be no need for the GPL in the eyes of the FSF (or, at least, in its founder's eyes). I think it's pretty safe to say RMS would agree that he has an "open and virulent bias against copyrights." Actually, he'd probably be more likely to not say that, but to turn it around on you and accuse you of having an "open and virulent bias against freedom"... Here's an excerpt from the summary of his upcoming speech [fsf.org] in Austin:
Copyright developed in the age of the printing press, and was designed to fit with the system of centralized copying imposed by the printing press. But the copyright system does not fit well with computer networks, and only draconian punishments can enforce it.
Stallman would, if he had his way, abolish copyright as we know it and replace it with a system that forbids closed source and gives users rights to modify and share source code. This really isn't the same thing as what we call "copyright." But this is unlikely to happen, so the GPL uses copyright law against itself to try to guarantee some of those things for code that is GPL licensed.
Re:Not completely inaccurate. (Score:5, Informative)
I think most of us concede that the GPL is a case where the FSF is using copyright law in a novel, unintended way to accomplish their goals.
That's why they call it the "copyleft" - not out of some right/left ideology, but to indicate that the GPL is a hack of copyright - the definition of hack being a novel and unintended use.
Re:Things I found interesting (Score:5, Informative)
I am not a lawyer but my understanding that amicus curiae briefs came from parties not directly involved with the case but are very rarely neutral.
Of course you are correct, UF. If the amicus curiae felt 'neutral' on the subject, why would they be filing a brief? We were not asking to be appointed judge; we were submitting a brief which would help the Court see why the plaintiffs were dead wrong.
Re:Anti-Copyright? (Score:2, Informative)
If that's the case, then why don't they use a BSD-like license? Because that's all they will have if copyrights are eliminated -- anyone can take FSF code, modify it, and lock away their modifications.
In such a world, the "locking away" would be through technical, not legal, means. If someone did that, you could still reverse engineer their software, distribute their software, etc., but this wouldn't be possible today with the BSD license.
Re:Well, is he? (Score:5, Informative)
So, is Ray "subject to a pending sanctions motion", and if so, what does that mean anyway?
There is a link to the term "pending sanctions motion"; if you follow the link you can read all about it. They made a motion to withdraw their own case, and joined it with a motion for "discovery sanctions" against Mrs. Lindor and myself. The motion was based on nothing but lies. It is still pending. Our Rule 11 motion against them is strictly based on the fact that their motion for "discovery sanctions" was based on nothing but lies, so the 2 motions are closely interrelated.
Re:Relevant... how? (Score:3, Informative)
Let's just assume that everything they said were accurate accusations and that the FSF is anti-copyright, anti-RIAA, anti-whatever... How is this relevant to their case?
It's not. The amicus brief simply brought certain legal authorities to the Court's attention. Either the authorities are in the book, or they're not. What FSF's personal opinion of the RIAA is, or what my personal opinion of the RIAA is, is completely irrelevant to anything.
Re:People disagree with you from time to time (Score:4, Informative)
Looking over the summary, at least, I'm left with one question: Are there any actual legal ramifications to this, or does this more or less boil down to "Mommy, make them stop saying mean things about meeeeeee!"?
There are no legal ramifications to the ad hominem attacks; the RIAA was merely saying "Mommy, make them stop saying mean things about meeeeee!".
As to the rest of the brief it grossly misstates and misunderstands the law regarding the jurisprudence of Due Process scrutiny of statutory damage awards.
Fortunately, Judge Gertner -- unlike the RIAA's lawyers -- can read.
Re:First they ignore you... (Score:4, Informative)
You missed a step. The original Ghandi quote was thus (except for the bulleted list format):
But I agree, we're on stage 2-3 now.
Re:Well-structured ad hominem attack (Score:5, Informative)
I've noticed that people resort to ad hominem when they haven't a better argument to use. The 9-page brief looks like a very nicely structured ad hominem attack, but that's all it is.
Exactly, Nefarious. Except I would question whether it was "nicely structured". It was the work of an incompetent, untrained lawyer who has no respect for the law, and no understanding of what a lawyer is supposed to be. By filing such a brief he merely reinforced the fact that the law is against him. There is not a federal court in the land that will sustain the constitutionality, as against a due process challenge, of a statutory damages award equal to 2100 or more times the actual damages sustained.
Re:Maybe I haven't been paying attention... (Score:3, Informative)
"W and the neo-cons are no longer in control"
I'd remind you it was Clinton that signed the DMCA into law.
It's now Obama that is putting the RIAA in charge of the justice department.
And you're talking about a guy who no longer has any political power? As to the rest of your thoughts about manufacturing and oil prices, it seems at best a simplification, and at worst a series of non-sequiturs.
Re:Only Terrorists... (Score:5, Informative)
I read the 9-page brief, then I went to www.fsf.org (after adding the third "w" - more evidence the RIAA fails simple maths) and read their front page. Nowhere does it advocate infringing copyright. Nothing can be construed as a recommendation to violate the law or infringe on other people's rights. Nothing. I see the liberal use of terms such as "free" and "open" and other keywords of the dream of American democracy. I may see a little bit of throwback to Tom Paine and Ben Franklin, ancient and pernicious bomb-throwing anarchists that they were, but I see nothing that advocates moving to the dark side of the law.
I don't support RIAA music for the same reason I won't watch The Sopranos. Mafiosi scare me.
Re:Well, is he? (Score:5, Informative)
You must be new here
You must be new here if you're saying that to NYCL.
Re:No "Duh" Tag (Score:3, Informative)
I'm not saying I don't agree with the message getting across, however with the amount of resources they have to bear, we may be "biting hard" to use my own analogy, but what is it truly accomplishing? They are still a factor, they still have money and influence, and they still have the ability to do stupid, assinine things like this without any true reprisal. I am proud of the work that you do good sir, and wish you and the FSF the best of luck in everything you do, I just think that shifting the focus in this campaign towards true information dissemination, in a sense of making it more accessible and understandable to the masses, would be beneficial in a sense of passing on the outrage these morons perpetuate into the public realm, by educating people on just WHY this is wrong and evil. I think if you get the public more aware of this matter, and more involved in the vocalisation of their anger towards these fools trying to steal our rights, then you create a self sustaining constituency of supporters who will add their voice to ours in seeking the downfall of the RIAA and their associated ilk, not to mention garnering more people and more voices in relation to Congress in letting their reps know just how much they hate the idea of the DMCA and the existance of the RIAA may help in having more legislation enacted to reverse or at least amend these ignorant laws.
I don't disagree that there are other things which should be done. But I'm doing the only things that I'm equipped to do: (a) fight them in court, and (b) tell the world about what's going on in these cases.
Re:Maybe I haven't been paying attention... (Score:5, Informative)
That's an XKCD reference, boy. You know what we do to XKCD referencers around here?
We link [xkcd.com] to them!
Re:Unethical submission (Score:3, Informative)
It's been a few years since law school, so I may not be remembering my legal ethics class fully--but it seems at the very least highly questionable for a lawyer involved in a case to be submitting articles about that case to Slashdot.
I don't ever have to attend a legal ethics class to be absolutely certain you're wrong. There's nothing remotely unethical about submitting news articles about your own amicus curae brief. Quite the opposite. Such briefs are almost invariably filed by advocacy groups that exist for the purpose of publicizing such things.
I'll go even further. It's not unethical for a lawyer to publicize elements of a case he's involved in as a representative of one of the litigants when the lawsuit isn't under seal. The court filings themselves are public documents, in law and in fact. They always have been. So quoting them in their entirety, verbatim, is not only perfectly legal and ethical, it's also useful to the practice of law. Discussing them in detail is similarly useful. Summarizing and commenting on them likewise.
Perhaps you think that law commentary outside of the Law Review publication is unethical. You're sadly mistaken. It is both legal and ethical for anybody to discuss matters of public record. The day it's not is the day the USA becomes a fascist totalitarian state.
Re:Things I found interesting (Score:3, Informative)
NYCL, honest question here, is there a real procedure to file a response to an amicus curiae? I thought they were wholly independent input from outside observers to the Judge and that the litigating parties didn't have authority to "respond" to them? Maybe I'm naive on this but it seems to me that outside observers offering input should be off the table for responses from either of the litigants as the brief is filed by someone not affiliated with the case which the Judge is fully aware of. If this is legit to do, how often would you say litigants officially file responses to amicus curiae briefs? And if it's not very common how do you think a Judge would respond to receiving one (either negative, positive or neutral)? And finally, don't they have to ask permission before filing the brief?
They have asked for permission. The judge hasn't yet granted them permission.
Re:"anti-recording industry website" (Score:3, Informative)
KutuluWare said it well [slashdot.org]:
[...]
What RMS and ideologically similar people have proposed is this: software should not be covered under copyright law. You can see this ideal most clearly if you head over to http://www.gnu.org/philosophy/philosophy.html [gnu.org] and read the two articles called "Why Software Should {Be Free,Not Have Owners}". While I disagree with his philosophy, he makes a pretty solid empirical case for why software should not be "owned" in the same sense that books are "owned" by their author or art is "owned" by the artist.
[... A] key point about the GPL and why it exists: because there is copyright law, the FSF must use copyright law to accomplish their goals. If software was suddenly declared ineligible for copyright, there'd be no need for the GPL because no proprietary software company could prevent people with access to their source code from modifying or redistributing it, nor could they prevent people from modifying or distributing binary copies of the software. This is a small step back from the current state where the group of people with access to the GPL'd source code includes everyone with a copy of the binary, but it's a giant leap forward in eliminating all the complex legal issues around who can copy what and where.
Re:"anti-recording industry website" (Score:3, Informative)
Without copyright, there'd be no proprietary software, by definition. The competition would then be between FOSS and closed-source "freeware", with FOSS having a clear competitive advantage.
No, you're confused (Score:2, Informative)
You've been listening too much to the "IP is property" mantra. Copyright is an artificial monopoly which is granted by a national government --- you cannot transfer it to another nation. The "other nation" is often respecting the some kind of international treaty which makes it recognize the original nation's copyright status for your work, but that would be automatic, in general.
Re:Not completely inaccurate. (Score:3, Informative)
If the FSF could rewrite copyright law, it'd be completely different. I'd say they have an open dislike (maybe not "bias") against the current typical use of copyright, especially for computer programs.
Spot on. A talk by RMS [gnu.org] states clearly what he would like. Basically, functional works (encyclopedias, software) have no copyright, personal opinion/experience works (editorials, scientific papers) have copyright, but verbatim copies are allowed, and artistic works have full copyright, but reduced to a decade or so. There are some problems defining this categorization, but copyright already has to deal with some pretty grey areas, such as fair use.
Re:Maybe I haven't been paying attention... (Score:3, Informative)
Like with most unbelievably large figures, there is "fudging" going on.
In NYC (hardly known for its lax regulations...) an on-premises liquor license (=full bar) costs a staggering $4,352 for two years. $2K/year is nothing.
The problem is that the # of licenses is capped which means that the aftermarket in trade is very steep. Up to $200K. But this is a one-time charge, and it doesn't go to the government. It could be worse - they could be non-transferable.
Anyway, it was harder to start a brewery in the 60s (not to mention the 20s), so it's not like we're on a one-way trip toward less freedom here...
Re:Well, is he? (Score:4, Informative)
I'm glad you're on these defendants' side and not the RIAA's.
It would not be possible for me, or any lawyer of conscience and professionalism, to be on the RIAA's side in these cases. The RIAA lawyers routinely sign documents they know to be false.
Re:No "Duh" Tag (Score:3, Informative)
my impression from the outside is that amicus briefs aren't usually all that central to a case and often get ignored.
Not so.
Perhaps I'm just wrong here.
Yes you're wrong on that point. This amicus brief cited 4 cases, and 2 law review articles which had not been cited in anyone else's brief.
Anyway, the fact that the RIAA feels any need to make a nasty response to such a brief reveals that they are beginning to realize that they are ... errr ... screwed ...
On that... you are dead on.