Answers From Lawyers Who Defend Against RIAA Suits

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?
(Score:5, Interesting)
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?
(Score:5, Interesting)
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
(Score:5, Interesting)
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

Hi folks. Sorry but I meant to put this link at the end of my answer to question 8, rather than at the very end of the interview:

See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker [riaalawsuits.us].

Re:Dear Sir

I don't think any of these answers were useless, it was just not what you, and perhaps most, wanted to hear. As we all know, because we have all read the HHGTTG, a good question forms the basis to a understandable answer. Most of these question assumed certain things to be true, and then tried to make assertions based on those assumptions, and the lawyer was then expected to say, you are absolutely right, and so brilliant! Instead the lawyer did what lawyers do and gave realistic answers based on the current reality.

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

When you first put in your Answer you say "Defendant Demands a Trial by Jury" in your Answer. Then you're entitled to a jury trial. If you neglect to do it, you may be deemed to have waived your right to a jury trial.

Interesting

The interview reads like Phoenix Wright [capcom.com] but with less murder. It truely is a shame that so many judges seem to lack the technical knowledge required in these cases, but the US must be thankful that they are not criminal cases just yet and remain civil (criminal=prison, civil=fines). France has some very media-related politicians and are normally at the forefront of oppressive european legislation (along with the UK). One of the French politicians is actually married to one of the main players in the music distribution industry which is just a bit of a conflict of interest in these sorts of cases.

Re:Interesting

but the US must be thankful that they are not criminal cases just yet and remain civil (criminal=prison, civil=fines).

The difference between civil and criminal infringement is one of willful:
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/ 03ipma.htm [usdoj.gov]

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

Personally, I wish they were criminal. Criminal cases in the US have a much higher burdon of proof. The require proof beyond a reasonable doubt. Civil cases, on the other hand, only require a "preponderance of the evidence." Screenshots of dynamic IP addresses are more than just a reasonable doubt. Even criminal cases can result in fines, typically much lower than what the RIAA is asking for in its civil cases.

Still Depressing

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:

I'm waiting for someone's kid to commit suicide because they're too ashamed to admit to their parents that they got sued for file sharing. Either the distraught parent goes on a political rampage and gets these stupid laws overturned or they go a vigilant

Re:Still Depressing

I wasn't aware that asking legitimate questions constituted a flame war. It's not my problem if you can't take legitimate questioning and criticism and brush it off as someone out to flame you. Belittling valid questions as beneath you does nothing to invalidate the question.

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 ... ... that's just the start, the list goes on and on and on and on.

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

So because I believe in stopping rampant government abuse and because I believe in protecting our liberties that the founding population of this country sacrificed so much for, I'm responsible for destroying my own country? Nice. Dissent isn't unpatriotic. Wishing for improvement is not patriotic.

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:Still Depressing

The entire practice needs to go? That sort of overreaction is just as bad as what the RIAA or the filesharers are doing. The problem is that ALL parties in this are being retarded:

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.

I guess there's no Gray Area

7) Gray Area Questions by Four_One_Nine
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

You would be cheered up immeasurably by buying non-RIAA music. The following companies should be avoided like the plague: SONY, UMG, Warner, Arista, Interscope, Motown, Elektra, Priority, Maverick, Loud.

Re:Anti-depressant to the rescue

Also avoid Atlantic, Capitol, BMG, Fonovisa, Virgin, & Universal.

RIAA radar

Hasn't been mentioned yet. You tell it about big-label artists you like, and it points you to non-RIAA artists that are similar.

http://www.magnetbox.com/riaa/ [magnetbox.com]

Re:Anti-depressant to the rescue

Perhaps you could mention some then. Maybe start with your personal favourites? Then maybe we can have a discussion about the need to participate in mainstream culture.

Re:Anti-depressant to the rescue

Excellent idea. Here's a few:

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.

Re:I guess there's no Gray Area

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?

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

There has never been a fair use right for any copyrighted material that worked that way. Say you had a book that you accidentally dropped in the bathtub and was ruined, or maybe it was in your bookbag that was stolen. You don't have some fair use right to another copy, whether a new paperback or a digital one, just because it wasn't your fault that you lost the original copy; it's tough luck, buy another book. In fact, with music, you actually have an extra *statutory* right -- the right to make a backup. You still can't photocopy or scan an entire book to make a "backup" of it!

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:I guess there's no Gray Area

Beckerman: 1. There's no such thing as a listening right, I don't know where you get that from.

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.

Am I the Only One

... who didn't get anything from that? Who needs lawyers, I can answer every question with a synonym for "depends" myself. I realize, the law is incredibly complicated (i'm a criminal justice student myself), but come on - "I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?" - well fuck i don't know, was I? Stop answering questions with questions and i'll stop talking shit about lawyers.

Re:Am I the Only One

I agree, the answer to that question in particular seemed very condescending, and almost willfully ignorant. It was pretty clear that the question pertained to mp3's made from a CD that was purchased legally:

Q: Are the .mp3 files of that CD on my computer legal or do they now belong to the thief too?

A: I don't know what MP3 files you are talking about, how do you know you were entitled to make those copies legally?

(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

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.

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:

There is no answer. What is so hard to understand about that? The case law is unsettled; he said that. This is not about simple murder, kidnapping, etc, this is about laws which are changinga ll the time, as fast as the *AA can push their changes and keep things changing. Until the *AA stop changing things, he can't answer the question. So yes, the answer could be summarized as "stay squeaky clean", but any other answer would be wrong.

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

Since he is a lawyer, and answering these questions as a lawyer, he has to be extremely careful. When lawyers actually write answers, they are generally four to five page memos with many citations to include all of the conflicting case law and possibilities. If he were to write something here, then someone get sued and use it as a defense because it was not understood completely, he would be open to a malpractice suit. He was attempting to keep the answers short enough to be useful, while at the same time protecting himself. These lawyers produced the answers for free. I am sure if you wanted an in-depth answer, they would write you one and bill you per their normal rates, as opposed to being free, as they did here.

Re:Am I the Only One

Pretending you don't know where the mp3's came from comes off as very rude, at least to my eyes.

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

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]

Evidentiary Procedure

Regarding question 9, this bothers me... it bothers me quite a bit. I know virtually nothing about court procedures (just what I've seen in movies, so might as well change that to nothing), but isn't there ANY formal way to make them account for their evidence? I've read a little bit about digitial forensics, and the exacting procedures specialists go through at each step to be able to say for certain that the evidence is untainted- under what basis are screenshots allowed at all as evidence? Is it pretty much just because the MPAA/their lawyer says they should be?

Re:Evidentiary Procedure

If you go read the documents he links to in that answer, where he says "We tried, we tried..." you'll find that it was in the discovery process where the screenshots were being shown to the court. At this point in the case, the plaintiffs had only a list of John Does, associated with an IP address. Each IP address had a list of songs that the plaintiffs - the RIAA - had downloaded from the host at that address. The court ruled that for discovery to proceed, all the RIAA had to do was show prima facie evidence that a case could be made. The statures say that prima facie evidence consists of (a) proof of the plaintiffs rights to the song downloaded and (b) the infringing copies of the songs. Boom, that's prima facie evidence that there is a case. Now all that needs to be discovered is who is the defendant. But making the argument during discovery that the evidence of IP address is insufficient to prove infringment on the part of the John Doe misses the point, according to the judge. The court at this point is just trying to identify the defendant, but the attorney for the defense is arguing that the case should be dismissed before the plaintiff learns who he is suing.

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?

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.

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?

Remember this was spoken by "Dick the Butcher", an evil henchman to John Cade, an illegitimate pretender to the throne.

JACK CADE.
I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.

DICK.
The first thing we do, let's kill all the lawyers.

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:

JACK CADE.
Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o'er, should undo a man? Some say the bee stings: but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since.- How now! who's there?

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

When a lawyer answers "I don't know" or "it depends", you know they're honest; when you're offered a guarantee its time to start running in the opposite direction. (note: this advice also applies to medical professionals).

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

The responses to Question 7 seem vague to me. Do fair use laws not take effect here??

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?

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"

I think the point made was that when you purchased the CD, you have rights to THAT COPY. You did not buy rights to ANY copy. So if THAT COPY is destroyed/stolen, then you lost the rights to THAT COPY.

Question #3, no brainer

With all the outcrys against the RIAA and "downloading music", the answer
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.

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.

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.

More Psychology of Fear Speak

Question 2: there is no right answer
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: ...And it's being eroded rapidly
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... ...The US Attorney General is on the RIAA's side.
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 appro