Answers From Lawyers Who Defend Against RIAA Suits 740
You had some excellent questions for attorneys Ty Rogers and Ray Beckerman, who maintain the Recording Industry vs The People blog. Here are their answers, verbatim, as they were sent to us by Mr. Beckerman.
1) Guilty?
(Score:5, Interesting)
by PrinceAshitaka
If you are completely guilty and are sued, but do not have the money to pay, what are your options?
Beckerman:
One option is to defend yourself, relying on the affirmative defenses. If you can find a pro bono lawyer, great. If not, go in to the pro se clerk at the courthouse and ask for a jury trial. Another option, if it's acceptable to you, is to default. They will usually get a default judgment against you for the exhibit A list (the songs they downloaded) x $750 plus court costs.
2) Biggest Mistake?
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by eldavojohn
What's the biggest mistake you've seen people make historically in cases where they're charged by the RIAA?
Beckerman:
It's hard to generalize about that, because each person's facts, each person's personality, each person's intellect and ability, are different. Generally, there is no real good way to handle these cases, so anything anyone does is a mistake, in that sense. But in another sense, there are no mistakes, because there is no right answer.
3) How can we prevent needing your services?
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by Software
What should we do to prevent needing your services? Another way of putting this is, how do we avoid getting sued by the RIAA?
Beckerman:
All of the cases that I have seen stem from people who are using a Fast Track sharing program such as Kazaa, Imesh, Gnutella, LimeWire, etc., having a shared files folder with copyrighted songs in it, even if the song files were obtained legally. So even making sure to pay for all of your downloads wouldn't protect you from a lawsuit. The only way I know to avoid the present litigation wave is to avoid having shared files of copyrighted songs.
4) Systemic Problem?
(Score:5, Interesting)
by ZachPruckowski
Do you see the current situation as a systemic problem in the current torts system? Specifically, do you think we need legislative intervention to correct the "money bias" in our legal system?
I mean, there doesn't seem to be much of a way to fight an RIAA lawsuit money-wise. It always seems to end quickly: Either the defendant ist so obviously innocent they drop the case or he/she settles for "pennies on the dollar". When do you think we'll see a few definite trials to answer the hanging legal questions about investigative tactics and what an IP proves?
Beckerman:
I think some good rulings by the judges would shut the whole thing down, so no I don't think it's necessary to revise the statutes. I do think it's important for our society to get behind the defendants financially, because if they don't there are going to be a lot of wacky rulings by judges which are going to dismember the internet as we know it.
5) Lawyers from outer space?
(Score:5, Funny)
by hawkeye_82
You guys are lawyers AND like to help people? What's it like on your home planet ;) ?
Beckerman:
Lawyers are just like any other people. There are good people and bad people. The people who come out the strongest against 'trial lawyers' are the big corporations' PR departments. They want the 'common folk' to think ill of lawyers, because the law -- as imperfect as it is -- is the only equalizer left. And it's being eroded rapidly. And people dissing lawyers all the time helps that process.
6) allofmp3
(Score:5, Interesting)
by giafly
What's the position of Americans who buy from legal offshore music sites, such as allofmp3 [allofmp3.com]?. Is this safer than downloading "free"?
Beckerman:
I don't know what you're talking about. The litigation wave is worldwide. The RIAA isn't American. 3 of the 4 members of the cartel are "offshore corporations". There are different versions of the RIAA everywhere. In France, and certain other places, they bring CRIMINAL cases, not civil ones.
7) Gray Area Questions
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by Four_One_Nine
Over the years I have attempted to educate some of the 'younger' generation about the do-s and don't-s of music copying and sharing. The following questions have come up out of real experiences and I have never had anyone provide a reasonable (justifiable) answer.
1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?
. a. Are the .mp3 files of that CD on my computer legal or do they now belong to the thief too?
. b. Can I re-burn a CD from the .mp3s and is that legal?
. c. Does me having a backup copy of the files on my computer mean I can't make an insurance claim?
. d. What if it is destroyed (for example by a fire) rather than stolen?
2. If I purchase a CD and it is subsequently scratched or broken to the point where it is not playable, can I legally download the songs from that CD from a file-sharing network?
3. If I purchase the DVD for a movie, could I legally download songs from the soundtrack for that movie from a file-sharing network?
4. If I purchase a CD that our entire family listens to, and then my daughter leaves for College, can she legally take a copy of an .mp3 ripped from that CD with her on her computer? or - similarly - could she take the disc and could I keep the .mp3 on my computer?
Beckerman:
Isn't this kind of a multiple question?
You shouldn't be trying to educate the younger generation about this stuff. The law is unsettled. Even lawyers don't know how it's all going to play out. Plus you seem to have a general misunderstanding about the basic principles of copyright law. When you buy a copy of something you have rights in the copy, that's it. No metaphysical rights to listen, reproduce additional copies, etc. I don't know what gives you this idea.
1. There's no such thing as a listening right, I don't know where you get that from.
a. I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?
b. See b above
c. Ask your insurance co.
d. Same answers.
2. I doubt it.
3. I doubt it.
4. I don't know.
8) Why aren't you going on the offensive?
(Score:5, Insightful)
by Civil_Disobedient
Instead of playing Whack-a-Mole by defending clients that are being extorted by these thugs in Gabardine, why aren't you doing anything about stopping it in the first place? Why haven't you petitioned the Attorney General to bring RICO charges against the members of the RIAA?
Beckerman:
I'm an ordinary lawyer doing the best I can. How do you know who I've gone to or spoken to? As far as going to the Attorney General, haven't you been reading? The US Attorney General is on the RIAA's side. See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker.
9) Evidence?
(Score:5, Insightful)
by eldavojohn
I hear a lot that the RIAA has the weakest evidence ever in these cases. Such as screen shots of dynamic IP addresses - http://www.cdfreaks.com/news/13747 - taken from Kazaa. How the hell do judges across this country uphold these cases with such lack of concrete evidence? I mean, give me five minutes in photoshop and I'll make you a "screenshot" of Kazaa with www.whitehouse.gov's IP address listed over and over on it. Can't an expert witness cause this evidence to be thrown out quickly?
Beckerman:
I've tried, eldavojohn, I've tried. Look at our court papers in Motown v. Does 1-149. The judge didn't want to hear a word I was saying. You are absolutely correct that the entire underpinning of each case is a joke. An astute judge would laugh them out of court, as the Netherlands and Canadian courts have done.
10) Other drive content and RIAA fishing expeditions
(Score:5, Insightful)
by BenEnglishAtHome
When I heard that the RIAA wanted to physically take possession of the equipment belonging to people they sued for discovery purposes, I was less than happy with that prospect. I use a hardware-encrypted hard drive that requires a bootup password. Without my cooperation, no one will every see what's on my drive. Given that the revelation of other content on my drive would place me in far greater jeopardy than anything having to do with pirated music (Assume the worst if you wish; you wouldn't be correct), I would never cooperate with such discovery.
Is there any mechanism by which the court can compel my cooperation and are there any penalties for steadfastly refusing to provide it?
Beckerman:
There will probably be a lot of litigation over privacy issues in the hard drive inspection thing. But if you just want to play hardball, the judge would probably just strike your answer and give the RIAA a money judgment by default.
US Attorney General (Score:5, Informative)
See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker [riaalawsuits.us].
Re: US Attorney General (Score:3, Interesting)
Yes, we all know the US Attorney General is in the back pockets of the groups that make up the RI/MPAA. That wasn't what I wanted to know. What I wanted to know was why nothing has been done with any attorney generals, specifically state AG's. In New York, for instance, (future governor, hopefully) Eliot Spitzer made quite a name for himself for g
Re: (Score:3, Insightful)
Personally, I think that this is basically a fundamental weakness in the law and it can not
Re: (Score:3, Insightful)
Well, technically you can't read a DVD because I doubt you're personally licensed to use the CSS algorithm. But that's ju
Re: (Score:3, Informative)
One that I particularly wish was less tersely answered (or where I wish some speculation as to meaning had occurred) was this one:
1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?
.mp3 files of that CD on my computer legal or do they now belong to the thief too?
. a. Are the
I understand that there is no "listening right" per-se, but the question seems to stem from a typical u
Re: (Score:3, Insightful)
1) Answered, but "Default Judgement" could use a clarification
2) Either none or his clients made mistakes, or they all did. He couldn't give us one example of tactics/negotiation that he'd seen fail?
3) Answered
4) Mostly answered
5) Answered - softball
6) Didn't know. Didn't check.
7) Confusing. b) see b, doubt it, don't know. The first part seems to say, "no copies". We still don't
Re:Dear Sir (Score:5, Insightful)
The fact is that most of these questions were nonsensical. Answering them would be like answering what kind of food do the trolls that run your car need. While it would be possible to use analogy try to explain that the car has no living components, but does consume a refined product that is refined from gunk that is from the ground, this would not be reality. So while the nice lawyer could have tried to fit the answer to the question, it is not usually what lawyers do, and not what I would expect a lawyer to do.
What is refreshing about these responses is that it provides a ray of reality to a site that all to often hides reality under troll and overrated moderations, and highlights fantasy with insightful mods. Which is not such a big deal, as /. is really just a bit of harmless fun. But if we do take it seriously, then we take some time to learn how to ask good open ended questions, that is questions that do not assume a certain answer, and the develop the discipline to listen to and understand the answer. Otherwise all this effort is truly made trivial, as we will be unable to learn anything at all.
Re:Question about Getting trial by jury (Score:4, Informative)
Interesting (Score:4, Insightful)
Re:Interesting (Score:5, Informative)
A. Intention (commercial advantage or private financial gain)
or
B. Scale (reproduction or distribution of at least 10
copies during any 180 days of copyrighted works worth more than $2,500.)
You can read the US DOJ's "How To" guide for prosecuting copyright crimes.
http://www.usdoj.gov/criminal/cybercrime/ipmanual
AFAIK, criminal prosecutions have been reserved for people the FBI has gone after. Who knows, maybe the RIAA will convince some prosecutor to zap one of the smaller fish.
Re:Interesting (Score:5, Interesting)
Re: (Score:3, Insightful)
Re: (Score:3, Insightful)
What I don't understand is how ANYONE can think they have a right to give copyrighted "anything" to another. Or how anyone can believe they have a right to unpaid-for copyrighted "anything" (that is, stuff they haven't paid the rightful owner for).
I could understand the fight against the big bad RIAA if the thing they are trying to stop wasn't illegal and unfair sharing of music.
Or am I missing something? Are they fighting something othe
Re: (Score:3, Insightful)
Do you believe that the end justifies the means? Should the RIAA should be at liberty to use whatever methods are at its disposal, including shaking down innocent bystanders and victims of other crimes (such as identify theft or unauthorized use of an access point) in order to stamp out piracy?
You can decry their methods, but is doesn't change the fact that people are stealin
Still Depressing (Score:4, Insightful)
While I applaud these lawyers (that hurt me to say) I get the feeling that they are just as powerless as we. Everyone knows these cases should be thrown out, but they aren't. That's the real issue, not just successfully defending people. The entire practice of suing people over music needs to die a horrible death. I hope you can hear us Superman!
http://religiousfreaks.com/ [religiousfreaks.com]Re: (Score:3, Insightful)
Re: (Score:3, Informative)
The problem is, and you don't seem to be acknowledging this, is that there is no guarantee that only criminals are having their phones tapped. And the tapping that is going on is going on in violation of the laws against warrantless wireta
Re: (Score:3, Interesting)
Re: (Score:3, Insightful)
So if you're so privacy-conscious that you go so far to be random, why aren't you arguing for the safeguards that would still protect privacy while carrying out investigations into criminal behavior? You CAN have both; that's what's been said over and over and over and over. Or have you bitten the lie that "this is the only way" that the government
Re:Still Depressing (Score:5, Insightful)
I also believe it's a mistake to trust the government to protect anyone. All politicians care about is wealth and power. All they listen to is money.
If the government could be trusted to do the right thing, don't you think it would be acting to protect the environment while we still (may) have time, handing down longer jail terms for crimes against people and real property than for spamming and software piracy? Don't you think that rape, murder, carjacking, mugging, armed robbery, and a long list of other crimes that actually hurt people emotionally and physically deserve that, instead of wasting the time and effort on crimes that hurt no one?
Don't you think that if the government could be trusted to look out for the best interests of the people, it would not repeatedly pass laws that favor the interest of businesses over the interests of the citizens? (most infamously, acting to make sure Disney can keep making money off of Mickey and therefore destroying our own creative commons, the long-standing culture of building on each others' creations, and the rich public domain on which our society has prospered for so long?
Don't you think that the government, if it really wanted to protect us, would come up with actually-effective ways to ensure safety that actually act to protect the public? Saying you can't take shampoo on a plane when the technology has existed for years to detect liquid explosives, and hasn't been deployed because of political squabbling, bureaucracy, and other petty problems is ridiculous when statistics show that many thousands upon thousands of people die in preventable road accidents every day, and yet the government will not require SUVs to not demolish cars (they override crash guards in car doors because they're so tall), they won't strengthen roofs to prevent rollover accidents, they won't provide increased funding to pull over speeders who think that they're above the law and who make the roads unsafer for us all, they won't increase average fuel economy requirements to lower pollution, decrease oil dependency, and lower prices
No, I don't trust the government to protect me. They haven't done anything to earn that trust lately. And I blame shortsighted mindsets like yours for not calling them to task and demanding more.
If the government can impeach its leader for lying about who he had sex with, why can't it impeach and remove a leader who lied about so many more things that actually are causing real hurt, real damage, and real destruction?
Open your eyes. Please.
Re:Still Depressing (Score:4, Insightful)
Blindly adhering to something just because The Powers That Be said so isn't patriotic. It's only serving to destroy this nation.
You, and the others like you, and destroying our country. United We Stand? Not with people like you. End of Thread.
Re: (Score:3, Insightful)
First there's a VAST difference between "no trust" and "distrust."
While I don't distrust everyone, I certainly "trust" few. That's a perfectly healthy and self preserving position. Those that earn my trust over time get more power over me. Those that violate that trust lose that power. Continuing to keep that trust requires accountability and transparency. I generally don't accept explainations of your actions to protect me, on the face value of "trust us, we're doing this f
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A prime founding principle of the U.S.A. is never to trust authority, particularly authority in governmental power. That is why we (supposedly) have a system of checks and balances in government -- the branches are supposed to squabble, and to have to work things out. Unfortunately, the current set of jackasses got enough control that they could sidestep those checks and balances, and are busy p
Re: (Score:3, Interesting)
Patriotism is a tricky things really. Is partriotism sticking a little flag over your SUV radio antena, or is it standing on street corners protesting? Dissention isn't necissarily a lack of love for one's nation, nor is blind acceptance of whatever happens love. In any event trying to lable people as patriotic or not is usually a really silly idea as it distracts from the issue at hand, whatever that may be. Whether or not I Love
Re: (Score:3, Insightful)
Either this is a troll, or you are probably the most deeply stupid person I've ever heard of.
Re:Still Depressing (Score:5, Insightful)
RIAA - They are bullying people with their disproportionate acccess to lawyers and money. They are suing people for ridiculous amounts of money. They are presenting dubious technical arguments in court and are setting unreasonable precedents.
Illegal filesharers - They are committing copyright infringement. This is illegal, end of story. Regardless of what you feel about copyright or the music business, copyright exists and makes it illegal for you to share these files.
Judges - Many are letting RIAA lawyers present weak and unreasonable arguments.
Legislators - They are passing dumbass copyright laws. Yes, there should be copyright. No, it shouldn't last 873 years or whatever the hell it is currently.
Re: (Score:3, Insightful)
In that case "just default" _is_ probably your best option - you haven't got any money anyway, so what are they going to take from you anyway ?
If the default judgement is in the millions it just means you go bankrupt for more and it might even help - if you owe so much, then maybe no one's going to question you going bankrupt.
Defending yourself might be more satisfying if you can make the other guys wa
I guess there's no Gray Area (Score:5, Interesting)
1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?
2. If I purchase a CD and it is subsequently scratched or broken to the point where it is not playable, can I legally download the songs from that CD from a file-sharing network?
3. If I purchase the DVD for a movie, could I legally download songs from the soundtrack for that movie from a file-sharing network?
Beckerman: 1. There's no such thing as a listening right, I don't know where you get that from. 2. I doubt it. 3. I doubt it.
I don't know about you, but I'm depressed after reading this answer.
Anti-depressant to the rescue (Score:5, Interesting)
Re:Anti-depressant to the rescue (Score:5, Informative)
The Boycott List (Score:3, Informative)
RIAA radar (Score:5, Informative)
http://www.magnetbox.com/riaa/ [magnetbox.com]
Re:Anti-depressant to the rescue (Score:5, Interesting)
Re:Anti-depressant to the rescue (Score:5, Informative)
Association of Music Podcasting (AMP) [musicpodcasting.org] BoycottRIAA.com "Non-RIAA" List [boycottriaa.com]
Creative Commons [creativecommons.org]
Defective by Design's List of DRM-Free Music Sites [defectivebydesign.org]
dmusic [dmusic.com]
Electronic Frontier Foundation List of "Artists Online" [eff.org]
emusic.com [emusic.com]
Fading Ways Records [fadingwaysmusic.com]
FreeCulture.org [freeculture.org]
harveydanger.com [harveydanger.com]
Janis Ian.com [janisian.com]
last.fm [www.last.fm]
Lime Light Radio [limelightradio.com]
live365.com free downloads [live365.com]
MagnaTune [magnatune.com]
myspace.com [myspace.com]
Nettwerk Download Store [nettmusic.com]
R.evolution I.n P.rogress [myspace.com]
RIAARadar.com [magnetbox.com]
uncoolcentral.com [dand.net]
Vision Metal Records [visionmetal.com]
I keep a list on my blog [blogspot.com] and welcome more suggestions.
iRate radio (Score:3, Interesting)
Re: (Score:3, Interesting)
Interestingly, I was a huge fan of Harvey Danger's first album about 10 years ago, and thought they had disappeared into the moonlight. Imagine my delightful surprise to find them on your list - I'll be downloading their free albums when I get home. Probably will send them some $$ while I'm at it.
Yay!
Re: (Score:3, Insightful)
Re:I guess there's no Gray Area (Score:4, Interesting)
Wow, I always thought this was a fair use issue. I know fair use isn't what it used to be. I didn't realize it was completely negated. Maybe because I didn't physically make my own backup and went and grabbed someone else's "backup" it's off the negotiating table. I'm no lawyer obviously... someone care to comment?
I don't know about you, but I'm depressed after reading this answer.
I'm depressed there had to be an answer, or a question, in the first place.
Re:I guess there's no Gray Area (Score:5, Insightful)
The key point to remember that often gets lost on people, and this is what the lawyer was referring to when he said he didn't know where the questioner was getting his/her preconception, is that copyright gives the copyright owner the right to control the making of *copies* of original works. All the questions of the questioner seem to be missing this fundamental point (although they do end up touching that important copyright issue of fair use). Unfortunately, I suspect that the idea of a license to copyrighted works -- particularly the way licenses are used with software -- has kind of screwed up people's understanding of copyrights.
Re: (Score:3, Insightful)
Flawed analogy because the cars innate value does not reside in the copywritten material encoded on the cars surface or within the car, per se. The car's value is derived in its physical ownership. A CD, in contrast, is worth pennies naturaly. The content on the CD is what is being purchased. Do you expect new food from McDonald's if the food inside the wrapper is bad (another totally flawed analogy). What about
Re:I guess there's no Gray Area (Score:5, Informative)
Probably because the law doesn't bother weighing in on behavior that is (a) inevitable and (b) self-evident. It does govern things copyrights and contracts, which makes the institution of the license, which is used to create contractual rights for the copyright holder where there are no legal ones established by statute or precedent.
Now it is self evident that people who buy recordings buy them to listen to them, and has been self evident up until now it has been inevitable that once in the custody of consumers, they play them often as they wish in any way they wish. So it is not longer the case that an unlimited ability to listen is inevitable and self evident.
One thing about legal rights is that in a practical sense they don't exist until the feasible means of infringing them exists.
There was no "Right to Privacy" recognized in the law, until in the late 19th century Louis Brandeis and Samuel Warren wrote a seminal article called "The Right To Privacy" for the Harvard Law Review. They were responding to several developments, notably the development of the modern newspaper, and the development of high speed photographic emulsions.
The way a new right is created is when techological or societal progress changes something we do that was previously taken for granted, but which justifies protection under established legal principles. These princiles are broader, less specific, but logically. In the case of privacy, Brandeis and Warren discerned a generalized "right to be left alone" underpinning various legal precedents that, should it exist, implies a right to privacy in an age of mass publication.
Likewise, there may in fact be a "right to listen", which is to say a right to use something you have purchased in any way you see fit, subject to the copy rights of the owner. Certainly this accords with most people's intuitive idea of their rights.
If such a right exists, it hasn't been recognized up to this point because there has never been reason to, without the availability of technological protection measures. TPMs can potentially it practical for copyright holders to constrain the way you use their works, far beyond mere copying.
On the other hand, I doubt there is any such "right to listen". It's hard to imagine this existing without arbitrarily constraining the rights of copyright sellers to develop and create products and services. For example record companies could make it so you can only play their music on usic players provided by their business partners.
there is a listening right (Score:3, Interesting)
It is called ASCAP and BMI licensing. This is what restaurants, bars, and music venues pay to cover the costs of licensing for cover songs, playing background music and whatnot. I've looked into this, and it appears as though for like $200/yr or so, anybody can get one of these licenses for less than 200 or whatever people and it be OK to download and play anything you want at any time.
In Britain, there is a TV license. Just out of curiosity, is there a possibility here in the US to get a music license a
What if the media is damaged? (Score:3)
Am I the Only One (Score:5, Insightful)
Re:Am I the Only One (Score:5, Insightful)
(emphasis mine)
It would have been more useful if he had answered the question that was asked, or at least elaborated more (ex: "Technically, you shouldn't even have ripped the CD in the first place" or whatever)
Re:Am I the Only One (Score:5, Insightful)
Good gawd, no shit man. This is the best non-answer answer I've read in a long time. Information Content: big fat ZERO.
Hello? Lawyer guys? We all realize that everyone's situation is different. We're not asking you to write a damned legal response to a court because we're in the middle of a lawsuit. Can't you just answer the damned question? It's perfectly acceptable to say, "It's complicated, but here's my personal opinion. YMMV" or something similar.
Summary of interview: Don't share your music publicly if you want to avoid legal hassles. Lawyers can't answer questions.
Count me in on the "Still gonna talk shit about lawyers" group.
Summary of answer: (Score:5, Insightful)
Why is that so hard to understand?
Even simple murder, kidnapping, etc, aren't simple. Look how many different kinds of murder there are: various degrees of murder, of mansalughter, voluntary, involuntary, willful, whatever. And that is law which is mostly settled. How can you possibly expect new law to be as well settled?
Reality is that unless you stay squeaky clean, they can amke a case against anybody they want under whatever corner they have pushed the law into; and even then, if they lie, they can make your life miserable.
Re:Am I the Only One (Score:4, Interesting)
-1 troll (Score:3, Insightful)
Gee i wonder why people think that lawyers are condescending elitest assholes...
Just because hes the articles author we are going lax on down mods? that was a pure classic troll. no information and a loaded emotional opinion. God forbid you'd have to explain your point to us little people.
I guess my point is why even post comments if all your going to do is troll?
Re:Am I the Only One (Score:4, Interesting)
His attitude of answering questions he doesn't like with flippant "grow up" remarks makes him rude to mine. This guy has no sense of manners, grammar, or proper respect of others in a discussion.
I would not hire him as a lawyer if I needed one for anything.
I apologize; you are right (Score:5, Insightful)
Well I must confess that I was probably being facetious because I was annoyed at his question. I was annoyed that (a) he was counseling young people when his own view of copyright law is basically fictional, (b) he's counseling them on issues that even experienced copyright lawyers don't know the answer to, because the law is unsettled, and (c) he's going around spreading false ideas that will just get people into more trouble. So I apologize. I should have been more respectful.
We are in a time of flux, and the issues are being hammered out in cases where the content providers have all the money for expert witnesses, teams of lawyers, etc., and their opponents have nothing.
If the computer industry doesn't get into the fight of helping the RIAA victims, the copyright law is going to be expanded and twisted to such an extent that the internet as we know it will cease to exist. See amicus brief of US Internet Industry Association and Computer & Communications Industry Association in Elektra v. Barker. [riaalawsuits.us]
Re: (Score:3, Insightful)
The problem is that the computer industry relies on exactly the same overbroad copyright protections as the RIAA and MPAA. EULAs are essentially the mirror image of the restricted consumer rights the buyers of RIAA and MPAA media are thought to have. If you don't have the fair use right to copy your CDs
Re: (Score:3, Insightful)
not trying to be a troll... but you didn't really help anyone with your answers to the questions. nothing was enlightening in your responses. it's all stuff that almost everyone here generally knows or could have assumed.
thanks for trying though. next time answer the questions.
Re: (Score:3, Insightful)
I did like your comment about the law being the only leveller left. Last time I checked the laws were all bought and paid for, along with our politicians and civil servants, along with the best lawyer. Our judges vary between incompetant at best, corrupt and political at worst. Our militia, who under normal circumstances would be our last hope
Re: (Score:3, Insightful)
Perhaps you have had the experience that the deeper into a particular subject you get, the MORE you know you DON'T know. So if you ask a lawyer about a subject in which he/she has extensive knowledge, for certain fact patterns, the answers you get will be closer to "I don't know, it isn't settled". If you ask someone who has a casual understanding, that person is much more
Evidentiary Procedure (Score:4, Interesting)
Re:Evidentiary Procedure (Score:5, Insightful)
Wrong argument, wrong point in the case. This needs to be argued after an identified someone gets to court to defend themselves against the suit.
I am disappointed in the answer he gave, and the case he cited to support his contention that "the court won't listen."
It's being eroded rapidly? (Score:4, Funny)
The first thing we do, let's kill all the lawyers.
William Shakespeare, King Henry VI, Part II, act 4, scene 2
It doesn't seem too rapid, merely universal and perpetual.
Re:It's being eroded rapidly? (Score:5, Informative)
In other words, Cade is going to set up what we would call, in modern terms, a totalitarian state. Dick, who agrees heartily, with uncommon perspicacity sees that killing all the lawyers would be a good first step. After all, it is law that constrains the powerful in their actions against the weak.
Next we get Cade's response:
In other words, he was "robbed" by lawyers, who use parchment (lambskin) and sealing wax (the product of bees) to bind a man to his word, after which is is never truly free to do as he wishes -- a sting worse than that of the bee.
So, we see those fond of wistfully citing the "kill all the lawyers" quote are pining for a system in which might alone makes right. Under such a system, only one person among the multitudes can be truly free.
credibility +100 (Score:4, Insightful)
He also reaffirmed my suspcisions that the justic system is highly subjectie to the whims and personalities of the justices preciding. Thank goodness for the right of appeal!
Copyright Purpose and Private Use (Score:4, Interesting)
1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?
. a. Are the
1. There's no such thing as a listening right, I don't know where you get that from.
a. I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?
1.If there is no such thing as a listening right, then the purpose and sole existence of the Audio CD medium becomes moot. Does it not??? Are we really purchasing CD's to have the mental concept that they contain Audio tracks that we once heard, and to the best of our knowledge, contained on this legally purchased CD?? What is the purpose of purchasing an Audio CD, if not to listen to it??
a. Does fair use in the privacy of ones home, concerning legally purchased copyrighted material, become NEGATED just because its not explicitly stated on the CD packaging the extent of that fair use?? I thought we lived in a free market and a free world here.
In additional response to his , if the above statement can be made by a lawyer who's fighting for the 'right side' on this issue, how does private and fair use rights have a chance in our present court system??
"Rights to listen" (Score:4, Insightful)
Re: (Score:3, Informative)
um... (Score:3, Insightful)
It seems strange to me that a copyright lawyer hasn't heard of the fair use rights granted by US copyright law (Title 17, section 107).
The person asking the legal question is better informed than the lawyer!
Re: (Score:3, Informative)
"Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an
Re: (Score:3, Insightful)
Re:um... (Score:4, Interesting)
It seems strange to me that a copyright lawyer hasn't heard of the fair use rights granted by US copyright law (Title 17, section 107).
The person asking the legal question is better informed than the lawyer!
In response, Ray Beckerman (Lawyer) says:
You don't know what you are talking about.
Ray: Slashdot groupthink usually reaches for the Fair Use Doctrine to justify ripping music to Mp3 and using it. Saying "You don't know what you're talking about" isn't a very satisfying answer.
I would love to hear, even in brief, a discussion of why Fair Use does not apply to these cases. It seems that you started to answer this question below with how Russia and the US have different laws about what copies are allowed, and which aren't, however, I'm not understanding what is allowed here in the US from your point of view.
Thanks!
This lawyer is useless, even if his info is right. (Score:3, Insightful)
Look at the answer to Question 7, with the multi-part question about copying CD's. I'm sure all of us would have liked to know if we can legally copy a scratched CD, etc.
Instead of producing any useful information, Mr. Beckerman simply tells the questioner that he is wrong.
Personal copy "fair use"? (Score:3, Informative)
Re: (Score:3, Informative)
You said:
He said:
Now I was under the impression that you DO hav
Re: (Score:3, Informative)
107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other means specified
by that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is
Is that legalese? (Score:3, Funny)
Question #3, no brainer (Score:4, Informative)
to question #3 is to the point. The only activity that will get you
in trouble with the RIAA is to make copyrighted items available for download
over the internet. If you downloaded gigabytes of music and did not make
any of your file system visible over the internet they wouldn't catch you
now would they?
File sharing networks are usefull for various legal purposes, but setting
one up on your home network involves some prudence. You need to make sure
that you don't expose files to the world that 1: you wouldn't want others
to see (such as your bank records or your p0rn collection) 2: you have
no rights to share (music or video files ripped from DVD's or CD's for your
own use under fair use).
I would suspect that if the creators of file sharing software don't provide
the proper setup defaults and protection to prevent unintended sharing of
parts of filesystems they might be liable for the users damages in a law
suit by third parties (such as the RIAA).
The RIAA only goes after uploaders. (Score:5, Insightful)
I think that cinches it. If you don't want to get harassed by the RIAA, don't let other people download their music from your computer. That's been the common sense answer for quite some time, but it's interesting that he says all the cases have stemmed directly from sharing songs, not downloading them.
What I find more interesting is that the lawyers don't believe that buying a CD gives one the fair use right to rip it to MP3s for playing on another device. That, to most slashdotters, is a fundamental fair use right, but perhaps to the law it doesn't technically exist. I suppose it all comes down to whether EULAs are valid contracts or not. If not, then obviously everyone has the fair use right to copy the CD for their personal use because the data *has* to be copied into hardware registers, modified (especially during error correction), and then converted to analog audio at some point. If EULAs are valid, then I guess you can't buy used CDs because the imaginary EULA that comes with every new CD probably doesn't "allow" that. We definitely need a strong anti-EULA case to go through the courts, preferably one like this where it's blatantly obvious that the necessity of a EULA to play a CD or DVD is an undue burdon and against fair use rights.
Re: (Score:3, Informative)
Re: (Score:3, Insightful)
Otherwise, I'm scared
More Psychology of Fear Speak (Score:5, Interesting)
Question 3: So even making sure to pay for all of your downloads wouldn't protect you from a lawsuit.
Question 4: dismember the internet as we know it.
Question 5:
Question 6: they bring CRIMINAL cases, not civil ones. (their emphasis)
Question 7: You shouldn't be trying to educate the younger generation about this stuff. The law is unsettled. Is it? I thought this was resolved years ago with VHS?
Question 8: I'm an ordinary lawyer...
Question 9: the entire underpinning of each case is a joke.
Question 10: But if you just want to play hardball, the judge would probably just strike your answer and give the RIAA a money judgment by default
1. An environment of fear of noncompliance has very successfully been created and applied to music consumers, and the lawyers won't rock the boat either.
2. Another example of "I'm not a criminal so I have nothing to fear." Where an artificial fear is created and maintained to enable psychological control on a national scale.
3. I agree that sharing the music is wrong, but the psychology of fear is being used to remove any personal ownership (as in personal copies) whatsoever. I thought personal copies were long ago approved by the courts. Someone please inform me otherwise.
Cut the crap, and donate to the EFF http://www.eff.org/ [eff.org] if you aren't going to spend your personal time making change on the issue yourself.
The listening right? (Score:5, Insightful)
1. There's no such thing as a listening right, I don't know where you get that from.
The listening right his question refers to is the right to "space shift" [wikipedia.org]. In other words, the right to "listen" to a recording at work on my iPod, or in my car on a burned CD-R, all while the original CD itself sits on a shelf at my home. This is a frequent topic of discussion amongst Slashdot regulars so I'm not so surprised you didn't know what he meant. According to Wikipedia we have this right based on the judgement in the case, "Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999)". It gave us the right to make an electronic backup copy for personal use.
The current RIAA website says "If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. [riaa.com] "
Once the original is detroyed do we still have the right to keep our backups? Of course this question itself is a paradox because once we destroy the original we need the backup. However do we then have the right to even possess the backup if we can't prove we ever had the original? We don't know the answer to this, and that's what he was asking. However I don't believe this has been tested in a court yet.
Regardless of any of this, his question is actually off topic because (to my knowledge) the RIAA is only "going after" people who are
sharing files, not people who are possessing personal backups. Correct me if I'm wrong there.
Topic (Score:3, Informative)
Re: (Score:3, Insightful)
Fair Use and Destryoed CDs (Score:3, Insightful)
In particular it is my understanding that fair use has long been understood to include a right to make a backup copy of your software or music. Certainly this fair use notion only makes sense if there are SOME situations in which it is legal to restore your software from a backup. Since it is a well accepted canon of legal interpratation that one shouldn't interpret laws to have absurd consequences or to render clauses meaningless when possible it seems this provides strong reason to believe that it is okay to restore your mp3s if your CD was destroyed in a fire.
The question about the insurance company should follow pretty easily from any answers to the other questions. Surely the insurance company wishes to minimize the money it pays out and if you still retain a large fraction of the value of your music collection they will pay you less money. On the other hand if you no longer have the right to legally play/burn the music on your CDs you have lost all the value contained therein and if this sort of loss is covered by your policy they have to pay up.
The question about whether you can download music you legally own is the most interesting as it goes to the heart of what it is that you purchase when you buy the CD. Is it a physical object or some limited rights to intellectual property. Either way has some serious consequences. Many of the claims by software companies that attempt to restrict your rights to do as you want with the software you purchase rest on the notion that you are just purchasing certain limited rights to make use of the IP while if what you are purchasing is more like physical possession of a CD it puts reselling that CD on firmer ground. Now if the CD had a specific EULA banning downloading the music on the CD that would be one thing but if that isn't the case things get very interesting.
It would be nice to say that one had purchased a single right to listen to the music contained therin but copyright law doesn't work like this, generally it governs the making of copies. Thus I would guess the question comes down to whether the copy made by downloading from the internet is legal. However, if it is legal for you to copy the data from your CD to your computer what makes this case different?
Anyway the point is that there are a lot of interesting questions here and I was hoping to see some quality legal analysis not my vague musings. Maybe I've just gotten spoiled by hanging out on law blogs but I'm kinda disappointed.
Re: (Score:3, Interesting)
Re: (Score:3, Interesting)
If we're buying a physical object, then the pattern of pits and holes on the disc is inconsequential. I can copy it as I like, and do whatever I like with that data: make backup copies, encode it into MP3/Ogg and copy it to my MP3 player, or put it on Kazaa. The only reason to buy the CD instead of downloading it from Kazaa is to get the full, uncompressed version on a nice, shiny disc, to get the n
Re: (Score:3, Interesting)
In other words (as Ray said elsewhere), having owned the disc and then lost it does not legally entitle you to download a copy of the data from Kazaa. You haven't purchased a licence to have the data itself, you've got a right to the data *as provided by the disc*.
The balloon Ray is trying to pop is the argument that, because the disc is orthogonal to the data, they are logically and therefore legally separate entities. They're not, and while the c
A bad day on Slashdot (Score:3, Insightful)
If you don't like the answers, well maybe it has something to do with the questions. Every question was modded either +5 "Interesting", or "Funny".
Not a single question was modded "Insightful". And one of the questions insulted him for being a lawyer. Another stupidly asked why he doesn't contact the US Attorney General for help in fighting the RIAA.
Of the good questions, he gave informative and helpful answers.
Maybe it's just the nature of the issue (RIAA and filesharing) that brings out the most moronic of the slashdot crowd, but I am seriously irritated by the stupidity that's been displayed here.
Re:Fair Use? (Score:5, Informative)
The law is unsettled. In order to get the US Supreme Court not to be frightened of its aggressiveness the RIAA represented at oral argument in MGM v. Grokster that making personal copies like that was ok. Now they've been saying it's not.
If they think they can win on it, I wouldn't put it past them to argue that personal copies are an infringement.
Re:Fair Use? (Score:4, Insightful)
I posted about this earlier in the thread, but this requires a specific response. If the RIAA can get a court to agree that personal copies of a work are illegal (despite the existance of the fair use right to make a backup copy), they will be in a prime position to be sued on the legality of EULAs in general. If it is illegal to make a personal copy of a work, then it is also illegal to decode the work and listen to it because the decoding and possible decompression require making temporary copies in the memory or hardware registers of the decoder. Not only that, but there is a physical copy of the work either existing as sound waves in the air or an image on a video display. Not only that, but in the end the human brain translates and stores a copy of the work internally. The ears transform the work into frequency data, and the eyes make a copy on the retina, and then further transform it into internally meaningful thoughts and concepts. To make personal copies illegal would require the EULA From Hell(TM) to cover all the "allowed" paths that the media could enter the human brain, and in what form the copies could reside in the brain just so that someone could listen to a CD. At that point, it's quite likey that a judge with some common sense would invalidate EULAs in general. When I say EULA, I mean the legal "contract" that one "agrees" to by taking the plastic off a CD or software package or by clicking a button when installing software. Just see how much media the cartels can sell when each and every one of their customers must be over 18 and sign a legally binding contract just to purchase a CD.
The argument can be reduced to a simple one about books. To read a book, the reader must make a temporary copy of the work on their retinas, and then translate the words into internally meaningful thoughts which most likely will remain in the brain for some time. If fair use covers the human sensory system, why should it not extend to the devices the human sensory system uses to view the work? After all, the eyes and ears are merely tools the brain uses to interpret the world, and computers and CD and DVD players are merely the tools that the eyes and ears use to interpret digital media. If the human sensory system is chosen as the arbitrary limit for fair use, it just pushes the argument back a few years until genetic modification and implants allow the human sensory system to interpret and copy digital media directly. Making copies of information is a natural process, and trying to artifically regulate it to the point of authoritarian social control will simply fail.
I don't think that [phrase] means what you think.. (Score:5, Informative)
The point is, that "Fair Use" has a lot to do with how much of a copyrighted work you can copy and for what purposes. It does not give you carte blanche to copy an entire work if it's only for your benefit. Russia, I believe, does have such rules, but not the U.S.
Re:Question 6 not understood - or lacking (Score:4, Insightful)
Re:Question 6 not understood - or lacking (Score:5, Informative)
When I said "I don't know what you're talking about" I meant why he would think that it taking place in another country would be a defense, or would make him less subject to persecution or even prosecution. This is an international wave of litigation.
Also the present wave isn't presently about downloading primarily. It's primarily about the RIAA's allegations of 'distribution'. If you bought and paid for every single RIAA song file in your shared files folder it wouldn't mean a thing to them. They will still sue you, and will insist on every penny, because it is your 'sharing' of those songs that they know about, and that they are after.
Re:I'm not disappointed... (Score:4, Interesting)
Re:I'm not disappointed... (Score:5, Insightful)
And then you go on to complain about lawyers being dissed. When people ask questions, they want firm answers, not wishy-washy stuff that seems to be coming from a grade schooler. Even if the answer is "I do not know the answer to that question" or "The answer to that question has not been fully decided yet, but here are some relevant links to read".
We shouldn't have to explain this stuff to someone who theoretically went to high school, college/university, and then law school. Isn't proper debate part of the law-school curriculum, and don't you have to learn to write proper arguments as part of English courses?
Reality or Certainty? Take your Pick. (Score:5, Interesting)
What do you mean by real answers?
(a)Correct answers which accurately state the law? or
(b)Answers which sound like the responder knows what the answer is when he doesn't?
It's real easy to do (b).
I don't play that.
The reality is
-the law is uncertain and in flux;
-it will be hammered out in cases where the corporate content cartel has all of the marbles;
-unless the tech industry gets wise and starts getting behind the victims of the RIAA/MPAA suits financially, the legal issues which are in flux may all be resolved in favor of the corporate content cartel; and
-the answer to every question will wind up being no, instead of what it is now: maybe.
So instead of getting on my case, do something about helping me win.
Re:Reality or Certainty? Take your Pick. (Score:4, Insightful)
This is the worst Slashdot interview I've seen in a long, long time. It looks like you spent no time whatsoever reviewing a single answer and threw out the whole thing in five minutes.
I'll get on your case if I damn well please because I'd like to see a good discussion of this but this is not it. I'm also sick and tired of low-quality "I know everything, you're a fucking moron" attitudes in discussions.
Re:I'm not disappointed... (Score:5, Insightful)
All that these people are looking for is a little respect and politeness. The slashdot crowd is highly intelligent. Many of these people have advanced degrees and work in high-end technical fields. We're not asking dumb questions or non-sense. They might be naive and certainly are uninformed, but we are not stupid.
We can handle things like "I don't know" or "It hasn't really been decided yet". "I don't know what you're talking about" is the kind of answer you give a five-year-old when they ask something naive like "Do you think unicorns are real" and you feel like being mean and dismissive.
We are not looking for you to misinform us on the law, or to yell "Hell yeah!" and support our misconceptions, or 'tell us what we want to hear'. Just treat us civilly, like intelligent *peers*. Most of us didn't go to law school, but we probably would 'get it', if you would have a little respect for our intellect, and a little patience to take the time and explain things fully.
I gave a decent defense of your answers here [slashdot.org], but after reading your comment response, I have you say, you really are acting like a dick to some potential clientele, and could stand to learn some manners.
Just explain "Your question is fairly ambiguous; it's impossible to give a good answer without more details, but remember a lot of law has not yet been decided" instead of a terse "I don't know what you are talking about". Your reponse makes it sound like I just came up to you and spoke utter gibberish. And, to be honest and fair, you do have a very good idea of what all of us are talking about; you are choosing to play dumb and not volunteer information. There's probably good reason for that; but remember, as computer geeks, we really don't understand the lawyer mindset. It would help all of us if you took the time to explain why 'you don't know what we are talking about'.
Legality of downloading not relevant to the RIAA (Score:5, Informative)
In response to that much more clear question, the answer is that the RIAA is going to come after you no matter where you got the files from. They're not suing people because they have evidence of downloading. They're suing them because they have evidence of the files residing in a shared files folder.
If you had a shared files folder with 500 RIAA songs in it, and you paid 99 cents to iTunes or whomever for each and every one of them, the RIAA would come after you and demand a settlement in the exact same amount as if every one of the song files had been pirated.
Re: (Score:3, Informative)
Sure you can listen to it.
The questioner was assuming that there is some "listening right" which follows you even after you no longer have the cd anymore. I.e., he is suggesting that you can go rip a copy of the song from somewhere, without reference to the copyright laws, because your past ownership of a cd with the song on it gave you a perpetual "listening right". That is total fiction.
Re: (Score:3, Informative)
Re: (Score:3, Informative)