How RIAA Case Should Have Played Out 296
NewYorkCountryLawyer writes "If a regular 'country lawyer' like myself had taken a case like the RIAA's in Capitol Records v. Thomas-Rasset to court, he or she would have been laughed out of the courthouse. But when it's the RIAA suing, the plaintiffs are awarded a $1.92 million verdict for the infringement of $23.76 worth of song files. That's because RIAA litigation proceeds in a parallel universe, which on its face looks like litigation, but isn't. On my blog I fantasize as to how the trial would have ended had it taken place not in the 'parallel universe,' but in the real world of litigation. In that world, the case would have been dismissed. And if the Judge had submitted it to the jury instead of dismissing, and the jury had ruled in favor of the RIAA, the 'statutory damages' awarded would have been less than $18,000."
Re:I think you have it backwards (Score:5, Informative)
Your fantasy-land in which intellectual property has no value, and clearly guilty people have the cases against them dismissed... that's the imaginary one.
Did you even bother to read Ray's post? I'm guessing not.
Ray points out some extremely simple things that were overlooked. Here's one example:
The jury should have been required to make findings as to (a) the date defendant commenced using an âoeonline media distribution systemâ (Kazaa) and (b) the copyright registration effective date of each work they find was infringed. The jury could have been instructed that no statutory damages could be awarded as to any work whose copyright registration effective date was subsequent to the date of defendant's commencement of use of Kazaa [or the Court could itself have made that determination based on the answers to the verdict form].
I don't recall the exact details off the top of my head, but basically if you want to bring a lawsuit over copyright in the U.S., you need to have registered that copyright. Under Berne, copyright attaches at the moment of creation (fixation), but the U.S. requires registration of works if there's going to be a case about it (at least for domestic works). This is a simple technical detail, but if the works were registered after any copying or distribution happened, it is an important fact.
Also, Ray is not saying IP has no value.... sounds like you have an axe to grind and are just looking for a place to do it.
If you're on a jury for cases like this, NULLIFY. (Score:5, Informative)
If you're ever on a jury in the United States, the legal system will wrongly try to convince you that they're either guilty or not guilty, but there is a third way: nullification or veto powers.
This is when you think the law is bad, or you otherwise cannot convict them under it by your conscience. It still exists to this day, but simply remains mostly unknown.
http://en.wikipedia.org/wiki/Jury_nullification [wikipedia.org]
In this case, I would have absolutely nullified a potential $2 million fine. Did she do it? Sure. But it's a bad law resulting in excessive fines.
It only takes one juror who knows his or her rights to stop this kind of crap. For more information as your rights at a juror, see the Fully Informed Jury Association.
http://fija.org/ [fija.org]
-SKO
Re:Date of commencment is flawed logic (Score:4, Informative)
Re:Slashdot Tag Racism (Score:3, Informative)
I take it you've never read many comments with score < 0.
This is good (Score:3, Informative)
When your friend starts eating his toast with the buttered side down, he's just a little quirky.
When he packages his hair and nail clippings and burns them on a toy boat in the backyard pool, he's eccentric.
When he kills the neighbor's cat and wears the skin on his head proclaiming himself the beast master, he's bat-shit insane.
We've reached stage three with the RIAA, and now everyone can see it. It's time for treatment.
Re:I think you have it backwards (Score:5, Informative)
Yes, Ray is claiming that all those people did it wrong and I have no idea if he's right. But he is giving a list of arguments to support his point. So if you want to claim that he is wrong, you should show that those arguments are wrong.
My blog post was written specifically to an audience of experienced lawyers. Any regular litigator knows that the procedural errors I pointed out are correct. And any regular copyright lawyer, litigator or not, knows that the substantive legal errors I pointed out are also correct. By saying that you "have no idea if he's right" you are demonstrating intellectual integrity, something in short supply these days. So thank you.
Re:Advertise (Score:4, Informative)
Hey NYCL, maybe you'd be interested in heading up a campaign to collect some funds from those of us in the know to educate the masses. I know from experience that the biggest problem with these court cases is ignorance. The judges sound like they're catching up, but I believe the persons on jury panels are still ignorant of the real dollar values involved and the facts surrounding the RIAA's abuses of the judicial system. The first thing that comes to mind is that there are scads of advertisements from the MPAA and the RIAA that go to great lengths to equate copyright infringement with criminal theft (a very successful campaign I might point out based upon ignorant comments on this very website). What the world needs right now is not love, but balance. We're lacking *any* kind of counterpoint regarding consumer digital rights. I'd be thrilled to pieces to see one shred of advertisement (a billboard ad, paid ad time on network TV, etc.) that presented the opposition to the RIAA and the MPAA. In short, if someone were to take the lead and head up a group that took funds from the public that were then used in a campaign of this sort, then I would be the first person in line to donate some cash. I know, the EFF is *supposed* to be leading the charge on this, but I've seen not one physical manifestation of their efforts. Advertising on the Internet is cheap...but obviously not as effective as a commercial that equates stealing a car with downloading a song. Anyone?
Everything you say is right, except for the part about me being the one to do it. I'm a lawyer. That's all I am.
Re:Monday morning quarterbacking (Score:3, Informative)
Bullshit.
Reactionist.
Digital technology is digital technology. Rip the same track, compress with the same software algorithm and bitrate, and you will get the same output every time. If there's one thing digital tech is good at, it's being consistent.
Try it yourself. Rip a song several times. You will see that in fact, the copies will not be bit-for-bit identical. Consistently very close, but not identical.
If the "single" even still existed, I'd be tempted to give you benefit of the doubt. The MafiAA has been doing their best to sell "album only" setups for over three decades now.
He actually overstated the support the other way. No one who actually litigates in this area would be so downright dishonest as to claim that an individual song does not constitute a work. It's not an either/or situation. Both the individual tracks and the album are creative works. Even if you were to consider the record label copyright solely on the album, in this context, taking of complete songs would have a fair probability of being considered substantially more than de minimus use.
One of the crappiest thing about the modern legal system is that if you have any clue about the law
One of the crappiest things about Slashdot is the popular misconception that you know more about the law than you do, or that "the system" is the fictionalized construction you've built in your head to berate.
Show any indication that you are capable of understanding the law independently. People have actually been kicked off of juries for requesting a written copy of the relevant law in the jury room.
The jury isn't there to deliberate the law. They're there to establish factual findings as requested by the court. That's all. You're neither counselors nor judges; neither litigators nor legislators. Your role in the process isn't as grand editor; jury nullification (a) rarely works and (b) has never changed the law. It's a fast way to a mistrial, though. The fact that you don't understand what the jury is there for is proof enough that you're not qualified to make the legal judgments you want to make in the first place. Notice that judges, attorneys, and paralegals almost never serve on juries, either.
If you want to deal with the substantive law in question, take it to the legislature that has the power to do something about it.
Re:Monday morning quarterbacking (Score:3, Informative)
Google "AccurateRip". Exact Audio Copy plugin that compares checksums of your rips against other rip checksums so that you can re-rip if you have an error.
CD audio is digital, different rips *should* be bit for bit identical, if not there was an error.
Re:If you're on a jury for cases like this, NULLIF (Score:3, Informative)
Lawyers only get a limited number of "rejections" in a court case, they don't get to go through and reject anyone they don't like - that would violate the right to trial by a jury of your peers. They have to be careful about who they pick, and if they have a concern about someone they generally all go into a back room - sometimes with the proposed juror - and discuss the issue before deciding.
So no, the odds are not extremely good, I am very surprised that there was apparently nobody on the jury who had a clue, or who thought such fines were outrageous. The jury actually RAISED the fines - the RIAA was not asking for $80,000 per song.
Frankly, I don't understand it, she must have done something to piss off the entire jury.
Re:Sorry NewYorkCountryLawyer (Score:3, Informative)
As a Brit, I'm in no position to be laughing. Perhaps you haven't kept up to date on what happens over the pond, here are some examples: Digital Britain report to combat piracy [telegraph.co.uk] as well as a forum for the report [digitalbri...rum.org.uk], here is some focus on the piracy aspect of the report [theregister.co.uk]. This is shortly after our IP minister says government will not legislate against piracy [bbc.co.uk]. Sneaky ISP cuts a deal with label while promising to be harder on piracy [theregister.co.uk] most likely to preempt the Digital Britain report.
Ironically I think our court system would have done better with the sort of case you had to deal with.. but our government makes up for that by being ready to impose new legislation at the drop of a hat.
Re:Monday morning quarterbacking (Score:3, Informative)
I got my JD from Washington University in St. Louis. I also have both Bachelor's and Master's degrees in computer science. I know whereof I speak.
Re:Makes sense (Score:3, Informative)
Funny joke; but you can go to the monopoly website to get PDFs of monopoly money for personal printing in the even that you lose some.
http://www.hasbro.com/games/kid-games/monopoly/default.cfm?page=StrategyGuide/gametools [hasbro.com]
-b
Re:I think you have it backwards (Score:5, Informative)
Copyright law is there to protect the rights of the creators;[snip]
Incorrect by way of ommision. Copyright is intended "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings ..."-U.S. Constitution
It seems that the judicial, legislative, and executive branches have all completely skipped over the entire first part, and only acknowledge the existence of the second part, as do many individuals.
The "securing...exclusive rights..." part is simply a method devised to, and derives from, the desire to accomplish the "To promote the progress of science and useful arts..." part. It doesn't stand on it's own, and that's one of the biggest problems with modern copyright law interpretation and enforcement as well as the laws written concerning copyright in recent times IMHO.
Strat
Re:I think you have it backwards (Score:3, Informative)