Judge Says RIAA "Disingenuous," Decision Stands 195
NewYorkCountryLawyer writes "Judge Lee R. West in Oklahoma City, Oklahoma, has rejected the arguments made by the RIAA in support of its 'reconsideration' motion in Capitol v. Foster as 'disingenuous' and 'not true,' and accused the RIAA of 'questionable motives.' The decision (PDF) reaffirmed Judge West's earlier decision that defendant Debbie Foster is entitled to be reimbursed for her attorneys fees." Read more for NewYorkCountryLawyer's summary of the smackdown.
The Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true." This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly.
Hey, RIAA (Score:5, Insightful)
Re:Hey, RIAA (Score:5, Insightful)
Judges, no... (Score:5, Interesting)
Re:Hey, RIAA (Score:5, Interesting)
Re:Hey, RIAA (Score:5, Interesting)
And for the past decade or so, they've been succeeding.
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Sadly.... (Score:5, Insightful)
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Re:Sadly.... (Score:5, Funny)
That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.
Bands make money from touring. DRM is evil. You can make unlimited copies of a song for no marginal cost. I only listen to independent bands anyway. Live music is better. The president of the RIAA has a monocle and stokes a cat all day. Ogg Vorbis is a good name for a file format. Micropayments are the future. Outmoded business model.
Re:Sadly.... (Score:5, Insightful)
It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales. If this goes on, we might see the destruction of copyrighting sequences of notes and see entire new genre's of music like blues which shamelessly infringe on the same set of riffs for different songs.
A unique combination of generations of producers, lawyers, organized criminals, and the congressmen and senators that they bought have worked hard to create a virtual monopoly. Where is our respect for all that work?
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Show me one example of a record company holding a gun to a band member's head to make them sign a contract.
Nope?
Then the artists have nothing to complain about. They were offered a contract and they took it, if they didn't read it properly, or better yet have it read for them by someone competent, it's entirely their own fault. The work I do for my employ
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You could make an anti-trust argument... that the music publishers have an unfair advantage over musicians due to collusion and unfair business practices.
Otherwise, its just taking advantage of the stupid, which I believe is still legal...
Re:Sadly.... (Score:5, Interesting)
Yes, you could possibly justify an anti-trust argument, but how about this broader one. If artists are still entering into contracts with a group of companies that have all been caught cheating on contracts, there must be some unfair advantage to keep them doing it. Whether it's a monopolistic trust that leaves them no better options, or the group otherwise enjoys selective immunity from paying the full price of their contract violations is irrelevant. The government could vigorously prosecute where conduct crosses the line to criminal accounting practices, lieing under oath, and so on, and this would help a great deal whether there is a proven monopoly or not.
Sure, some of it, at least a little, can be blamed on various artist's stupidity. Put a clause in your recording contract that says there will be bowls of all green M&Ms available at all times on the soundstage, and you can expect to pay very dearly for it. Fair enough, but not nearly all the artists are that stupid. Which seems more likely, that there are so many artists too stupid to realize the risks, or that many of them do know they are going to get screwed, but feel like all better alternatives are closed off to them, and hope to be the one who isn't screwed too badly.
Prior post amounts to saying "show me a successful white collar criminal who turned to blue collar methods when they didn't have to, or agree I'm right!" I'm rather surprised you're rebutting only one part of it and letting the rest stand.
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Re:Sadly.... (Score:5, Insightful)
The fact that people still sign contracts with these companies is very suggestive that perhaps they feel that there are no alternatives. It suggests that people are resigned to getting screwed over, not necessarily on the contracts themselves, but on how closely those contracts are followed. It suggests that people feel like there is no alternative but to idly sit by and watch the law be broken. I say that this is a very bad thing indeed.
Re:Sadly.... (Score:5, Insightful)
If you are trying to make a living by writing and selling music, then you have essentially three choices--market it on your own, make it free and try to make money touring (if you can get noticed); or you might be able to secure an independent label contract, market it essentially on your own, and hope to make money touring; or, if you get lucky, you can get noticed, sign a major label (read: RIAA) contract, and be stuck with whatever terms they offer, because while some people are good enough to have multiple labels clamoring over their stuff, this is unusual. Instead most bands are lucky to have any label be willing to sign them and there are always others willing to take your place.
The result is that RIAA labels, in effect, have huge amounts of buying power when it comes to negotiating artist contracts. These contracts are typically draconian in nature, and leave most bands actually losing money for a while, although the label is raking in lots of cash.
Now, if you go with an independent label, you just have to HOPE that you get famous and make money. The same is true of no label deals, and in all cases you are expected to tour relentlessly and hope for the best. NPR did a fluff piece on the Dresden Dolls a while back that talks about how the band was making less money than the people they had to hire to make the tour work! Sad.
The point is that being an artist isn't easy, and the RIAA does NOTHING to make it easier for the vast majority. Only a very few actually get deals that reward them in line with the amount of CDs they sell relative to the amount of work it requires from the artist.
I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed.
Re:Sadly.... (Score:4, Insightful)
A few years ago I saw an estimate that around 100 CDs were being created per day, every day. It seems like a fairly conservative estimate. Assuming that's in the ballpark, in the time it takes you to listen to one CD, around 3 others will have been created. And you can't listen to music 24/7.
Distribution power has tremendous influence on what music will sell. Great distribution power --physical sales and the airplay, good PR, and buzz needed to push those CDs to the register-- requires a lot of capital. It is the exception for heavily marketed product to completely flop: even the worst will go gold if it's crammed down enough throats (thanks, Clear Channel!) I'm not talking postering, I'm talking about pay for play.
The reason you buy bands --the reason you may even identify with them-- is because you found mention of them in the first place. In a world where you're exposed to thousands of advertisements every day, it is far more likely that you came across them in an ad of some sort; or at least the person who told you about them did.
So your expectation for all your money to go to the artist, at least in the case of the RIAA label bands, is misplaced. Don't fool yourself -- most of the capital that gave them the huge sales did not, in fact, come from their musical efforts. They simply have the gratification of being the faces of the advertising campaign that is their latest CD.
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Re:Sadly.... (Score:4, Insightful)
The situation you describe also applies very well to writing software, building houses, selling ice cream, and innumerable other professions. Try to go it alone, work with a small company, or work with a big company. Each have reasons that make them good, and bad. This is part of doing business in modern society, no matter what your business is. Why would ye olde Invisible Hand make an exception for the music industry?
"I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed."
Why would you expect that? When you put together the end-to-end costs of recording, producing, marketing and selling a CD, the studio time (including the paying of the session musicians) and the royalties (in which the songwriters, composers, and featured performers are paid) are but a small percentage of the cost.
You probably already know that retail margins are anywhere from 10% (Amazon) to 50% and more (Best Buy, etc.) across all categories. Music is no different. If this is truly pissing you off, how do you cope with the anger of paying 10% - 50% markup for everything you buy?
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"91% >> 50% (and 9% to the artist is a "very good deal"!)"
Huh? I was referring to retail margins -- the markup that the retailer charges. The GPP believes that the retailers should be paid less than the artists. All fine and good, but manufacturers -- no matter what business they are in -- don't get to set retail margins.
I sell computer peripherals. Amazon makes about 15 points on my products; Best Buy makes about 50 points. This is out of my control, and has nothing to do with the salary of any
Market Fluff and Comercial Darwinism (Score:2)
Art for arts sake is a dead concept for most of the crap I end up chucking in the bin after 10minutes/50 pages/2 tracks. How much bubblegum can the world actually chew?
Re:Sadly.... (Score:5, Insightful)
I think you might have missed an important sentence in the GP post... the one that explains how the corporations can hold a gun to a band member's head. I'll point it out: (emphasis mine)
In the days before the internet, the record labels made life for independent artists as hard as they could, to force them into restrictive contracts. Good luck trying to get any air time on a significant radio station as an independent artist. And the strange thing about bands, is that while you can make money touring, you first have to gain a strong following. To do that, people have to hear you. If you can't get any air time the only way to do that is tour with other bands. But chances are, unless you're very original AND very good, most people will not remember your material nearly as well as whatever song that one of the labels has playing on the radio every 20 minutes all day long. NOT accepting a contract with a record label was a death knell for almost any band. Of course, there is always the possibility of arguing for a better contract, but it's not likely to be improved much, unless you really are very good and very original.
Of course, now with the internet their efforts to lock up the major distribution channels are starting to fail, so they are flailing wildly in an attempt to gain control over this new and unexpected threat. So far, they seem to be having some trouble, and I hope it continues that way.
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I hope internet radio isn't part of the new and unexpected threat, since recent changes in royalty rules (retroactive to 1-Jan) are going to put most of those independent outlets off-the-net.
Funny accounting..... (Score:5, Interesting)
Also remember that both the movie & record distributors have been caught repeatedly doing some very funny accounting in reguards to what makes a 'profit'. Most of the contracts issue an advance followed by royalties after a net-profit has been gained.
ISTR that a producers new Ferrari was once considered an 'expense' in calculating net profits. For a modern example of this look no farther than New Line Cinema & Peter Jackson - LOTR1 is showing $100M+ discrepency in the audit. That's a lot of money to be 'disputed' as an expense - like 2 more movies. Worse, although it's in the contract, NL is trying to bar Jackson from auditing the books on the other 2 movies. We are talking potentially 1/2 of $1B in profits being swept under the table & hidden from the 'Artists'.
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http://www.cbc.ca/documentaries/bigsugar/sugar.htm l [www.cbc.ca]
http://links.jstor.org/sici?sici=0010-4175(198610) 28%3A4%3C729%3A%22MFOST%3E2.0.CO%3B2-Y [jstor.org]
If it is legal, then screw'em I always say. I think abolishin
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Fuckin' A? That's a spicy meatball!!
On the topic of the RIAA, what Maxo-Texas said.
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"It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales."
It's much worse than you think. I'm at the director level for a company that makes PC peripherals. I'm in charge of $40MM of business a year, yet my employment contract (which I was "forced into" in the same sense that artists are "forced into" recording contracts) includes a salary that isn't one hundredth of that amount. I've probably been responsi
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If cat-stoking is as illegal in the US as it is in Europe, this might just start a case worth watching.
Re:Sadly.... (Score:5, Funny)
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of "innocent until proven guilty"
I for one want no part ina group that follows such an evil trend.
When coroporations sue, we should automatically side with the selfless corporations as they are most likly right.
Re:Sadly.... (Score:4, Insightful)
Re:Sadly.... (Score:5, Insightful)
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One point...Most bands really do make their money from touring, not from their records. In fact, if you pay attention at all, you hear horror stories from everybody who isn't a corporate rock fuck about how if they had to rely on album sales they would starve to death.
Somebody makes money on album sales (or at least used to, pre-internet), it's just not the bands. The RIAA isn't going after the copyright infringement for mere principles...
The RIAA HAS no principles (Score:3, Interesting)
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Really? How do you stoke a cat, anyway?
Try Thinking Next Time. (Score:5, Insightful)
You don't just count the people being sued, you have to also consider the great many Slashdotters who believe that any expectation that you pay anything at all for any media that can be digitized equates to misery.
It's more like the 125 million US citizens with an ISP connection that might be wrongly accused and threatened with the loss of all their life savings.
That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.
Yes, I'd like my music to play on restrictionless devices. If you like having to beg permission to play and copy your files or keep running your OS. I'm not sure why anyone would prefer that but to each his own. Perhaps you would like one of Mr. Gates' bed o'nails and pillow full-o-thorns to sleep on?
Bands make money from touring. ... blah blah blah
You don't have a real job do you?
Re:Try Thinking Next Time. (Score:4, Funny)
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Oh, so the president of the RIAA burns cats for warmth, I knew it! Thanks for the info but it's not as if we needed any additional ammo to hate this man...
Re:Sadly.... (Score:5, Insightful)
I would not be so sure about that. If this decision withstands the test of time, many lawyers will be willing to take on at least some of the cases, since the salary will now come out of **AA's pockets. The obvious outcome will be that more people will engage in illegal filesharing (seeing that it is possible to go to court and win), while **IA will have to pay considerably more for its "war on piracy".
Re:Sadly.... (Score:5, Insightful)
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Nice to see... (Score:4, Interesting)
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Finally! (Score:5, Interesting)
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Is that the one where John Fogerty had to prove he didn't sound like himself?...
Re:Finally! (Score:5, Informative)
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>>>>>>
Thank you for contacting me regarding copyright protection. I welcome your thoughts and comments on this issue.
Copyright protection has been central to America's prosperity and job creation. Movies, books, computer software, television, photography and music are among our unique American products and some o
Thank you for your form letter about [issue] (Score:2)
It's important that we consider carefully the effects of [issue]. With my carefully worded statement I assure you that I'm on your side on [issue], no matter what it is.
You have to consider that [the business interests opposed] have a great deal of money and are willing to fund my reelection so I can work on this urgent issue for you. Remember that their great business is what provides [jobs to thousands of impoverished Pakistani factory workers/drugs for washed up one hit wonders/hope for world peace/pr
Re:Finally! (Score:5, Informative)
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And this is after you'd already bought the same album on vinyl and cassette 20 years ago.
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Re:Finally! (Score:5, Interesting)
Same goes for the original recordings of some classic albums. I don't want the greatest hits copyrighted from 2006, I want to buy a brand new CD with the same record that I grew up with. Take THAT Corey Hart, you stupid Canadian money grubber. You had what, two records? And one of them was a hit? I want to buy your "First Offense" CD, not the Corey Hart greatest hits. It's absurd that you've even got a greatest hits anyway, when "First Offense" had all of hits anyway.
If copyrights were limited as they should be, Corey Hart would be in the public domain by now, or soon, and I could just get a copy of the CD from anybody.
Right now, I don't have any way to get a legal copy of the CD I want to buy. Thank god I already have the entire run of "The Golden Girls" on DVD, or I would have to wait until the next century for my masturbation material.
**cough** (Score:2, Informative)
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I have a feeling that has something to do with the fact that George Harrison and Roy Orbison are both dead.
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Let me be the first to say (Score:3, Informative)
Yay (Score:4, Funny)
Question (Score:5, Interesting)
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Re:Question (Score:5, Informative)
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It probably proves the whole lawsuit campaign is nothing more than them tossing huge chunks of money at the courts in the hope it scares everyone into not only stop copying, but even stop practicing fair use, and buying every cd as it comes out "just to be on the safe side".
Re:Question (Score:5, Informative)
But when the Court's final decision fixing the amount of fees is issued, the details will probably be in the decision.
And if the RIAA appeals, then the underlying papers will be filed as part of the appellate record, and it is highly unlikely that the appeals court would keep them confidential.
Re:Question (Score:5, Informative)
I can't for the life of me fathom what they are doing other than enriching their lawyers. Plus they're ensuring that Ms. Foster's attorney will have a nice payday at the end of this, which will enable her to help many more RIAA victims.
They're turning a $55,000 attorneys fees award into a $150,000 award, and spending a lot of money to do it.
Plus they're ensuring that their fee arrangements -- which they don't want people like me to know about -- will become public.
Go figure.
I've been in the litigation field for 32 1/2 years, and I can't imagine what they are thinking.
But Capitol v. Foster has already given the rest of us a number of excellent judicial precedents, and it seems that more are on the way.
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How far can it go before a judge orders the Sheriff to go down to the RIAA headquarters and begin to auction off their property to pay the judgement? That's what would happen if an individual "just sat on a judgem
Re:Question (Score:4, Informative)
Would be interesting to know what the full process is though.
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In legalese, "Disingenuous" means... (Score:5, Funny)
NewYorkCountryLawyer? (Score:2, Funny)
Why don't "we the people" (Score:4, Interesting)
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Re:Why don't "we the people" (Score:4, Insightful)
In older times, this was called a union. Its kindof a bad word today, but in order for artists to get around the RIAA and Tickemaster and any new incarnation of the same, a union may actually be something that can protect their rights.
Re:Why don't "we the people" (Score:5, Informative)
"Guilds" are for artists and creators. Engineers, actors, painters, musicians, and even computer programmers should be in guilds, not unions. (Again, "or not" applies here.)
Unions got a bad name from the corrupt officials in their organizations (past, present, and probably future). Guilds don't have that problem.
Re:Why don't "we the people" (Score:4, Funny)
If I join an engineer's guild, do I get to carry a sword around and wear chain mail armor made of mithril?
Re:Why don't "we the people" (Score:5, Funny)
No, but you do get to carry a gold pen and you get to wear armor for your pocket.
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"Um...isn't that what the RIAA is technically supposed to be? Not that it actually represents the artists' interests."
No; not hardly. They represent the recording industry. From their "about" page (emphasis mine):
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http://www.freelancersunion.org/ [freelancersunion.org]
What they do, except perhaps with more of a music slant. Like offering discounts to equipment/promotional resources or pairing producers with singers, etc. If done right, it could theoretically completely replace what the RIAA does. RIAA members owning a good chunk of the major media outlets does present a challenge to the organizers of such a union, the RIAA could b
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http://www.afm.org/public/home/index.php/ [afm.org]
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Because "We the People" is represented by Congress and Congress doesn't feel like it. Additionally, there's a good chance that a significant portion of "The People" don't actually care. Note that "the People" tends to include people who think an MP3 is an old
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You spelled "Ticketbastard" wrong.
fscking A!! (Score:4, Informative)
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This is why I really wonder about the sanity of some of the developers of these ripping apps--if you know there's a real, tangible threat from the industry, why-oh-why do you never release your source? DVD Decrypter, DVDFab, and DVD Shri
Re:fscking A!! (Score:4, Informative)
FixVTS [afterdawn.com]
RipIt4Me [videohelp.com]
Sony, Macrovision, and the MPAA are a little vaklempt. Discuss amongst yourselves.
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I felt a disturbance on the net... (Score:5, Funny)
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Unequal income litigation (Score:5, Interesting)
Re:Unequal income litigation (Score:5, Interesting)
As to damages based on respective income level, dear god no. That change would completely and utterly overwhelm your first point - if McDonalds injures me to the tune of an actual loss of $1 out of my pocket, I shouldn't be able to claim $1000 just because they're a big company. That creates an enrichment in me and a huge incentive to sue big companies over frivolities. Conversely, if someone backs into Bill Gates' car, he should get less than the cost of fixing it why, exactly? If I have a $1 loss, it is perfectly reasonable to say megacorp defendant who caused the loss need to pay me $1, my filing fees and a reasonable amount on top of the real loss for my discomfort/trouble/pain/annoyance, but as a matter of legal and economic theory, I should *never* come out ahead by suing. A lawsuit is not a jackpot and god help us all if it ever becomes such (though many would argue the US is already there). Now, having said that punitive damage awards do happen- those enrich the plaintiff and are economically questionable, especially on the scale sometimes seen in US courts. But the theory is, megacorp can afford to lose $3 to cause a $1 injury if they actually make $3.25 by doing it or if they only get caught at this one time in ten, so sometimes you need to put a thumb on the scale, as it were. Punitive damages are intended to send the clear message not to do the complained of act again and avoid hundreds or thousands of other people having to sue to make the same point. They are also meant to be rare and in Canada, actually are.
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However, I'm a big supporter of punitive damages. Without them, companies tend to see lawsuits as a "cost of doing business". Companies will happily pollute rivers as long as the cost of doing so (measured in payouts to those affected who bother to pursue them) is less than the savings resulting from this deed. A few large punitive damage awards can bankrupt a company, which is a good thing: if the
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... the plaintiff is required to reimburse defendant's lawyers up to the amount that they themselves spend on legal services.
Apparently you haven't been following this case so I'll fill you in. Essentially, the case against the defendent was "dismissed with prejudice" and should she will be reinbursed for her legal fees. The RIAA balked at the amount she demanded and tried to argue that it was far too large an amount. The defendent replied "Well, how much did you spend? If you spent more than I did, the amount I'm asking for should be reasonable." The RIAA didn't want to reveal how much they had spent, but the judge forced them
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This won't work, and here's why:
Most cases, say 98% or so, never make it to trial. Why? If the lawyers figure out that one side or the other had a clear advantage, they will settle, because it's in their clients' respective best interests. So going to trial is (usually, roughly) a coin flip. Which is how i
Finding common ground in a new age (Score:5, Interesting)
My own stance is often conflicted on digital media. I've never deluded myself into thinking I'm striking a blow for justice by downloading a game, software, song, show, etc. gratis. But the often clumsy DRM does sometimes make me regret a legitimate purchase. With BT games, I can take my machine to a LAN party without bringing a single disc. With a legitimate game, I'd either have to bring the discs or patch it as if I had obtained an illegal copy. Hell, I wanted a few songs right away to exercise with, so I downloaded the MSN service and bought a few bucks worth of songs: Easy as pie...until I restore my system, or until MSN folded into URGE without properly supporting legacy customers.
Even this far into the Internet age we still haven't developed proper analogues to physical media. You can loan a book to a friend; the only DRM is the security sticker removed at the store. How do you easily loan an audio book to a friend, without making it easy to endlessly provide perfect copies? The business model needs updating, but to what? As it stands, we are buying encrypted paper books that can only be read with a cipher key licensed to an individual.
But even that metaphor breaks down easily, since paper books employ near-universal formats that anyone literate in the language can read. Since the format is interpreted by the human mind, not a computer, any irregularities in the format (i.e. manga style graphic novels) can be adapted on the fly. We don't have to consider if a book comes in
Ease of use is key to adoption, but what is the balance between business and consumer? Is it fair that iTunes limits players or is it fair to demand that iTunes support an open format? Damned if I know the answer.
Hurrah! Perhaps the tide will turn! (Score:4, Insightful)
"Questionable Motives?" (Score:3, Insightful)
1. Ever-increasing profits at all costs.
2. Protection of their predatory, exploitative business model at all costs.
3. Complete market domination for 1) and 2) above.
4. Total control over the distribution of music.