Slashdot Log In
Answers From Lawyers Who Defend Against RIAA Suits
Posted by
Roblimo
on Thu Sep 14, 2006 12:39 PM
from the when-you-want-an-expert-opinion-ask-an-expert dept.
from the when-you-want-an-expert-opinion-ask-an-expert dept.
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.
Related Stories
[+]
Interview Lawyers Who Defend Against RIAA Suits 289 comments
Attorneys Ty Rogers and Ray Beckerman maintain a blog called Recording Industry vs The People, subtitled, "A blog devoted to the RIAA's lawsuits of intimidation brought against ordinary working people," which was most recently linked from Slashdot on Sept. 10. They've agreed to answer your questions about RIAA suits -- and they obviously will not preface their answers with "IANAL," although we must note that they cannot give specific legal advice about specific cases. For that you need to engage an attorney yourself. (Luckily, their site contains a directory of lawyers willing to defend against RIAA suits.) In any case, these guys obviously know more than the average bear (or lawyer) about how the RIAA goes about suing music fans, how to keep from getting sued by the RIAA, and how to fight back if you do get sued, so we're glad they're willing to help us learn more about this apparently endless legal mess. Usual Slashdot interview rules apply.
[+]
News: RIAA Vs. Web 2.0? Social Media and Litigation 41 comments
NewYorkCountryLawyer writes "After learning that Professor Nesson's CyberLaw class at Harvard Law School has set up a Facebook page to assist in its defense of Joel Tenenbaum in an RIAA case, SONY BMG Music v. Tenenbaum, Wendy Davis of the Online Daily Examiner opines that 'Web 2.0,' and more particularly, the 'social media,' are playing an increasingly important role in RIAA litigation. We at Slashdot have already learned that principle, and have made good use of it, as have our friends at Groklaw."
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
US Attorney General (Score:5, Informative)
See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker [riaalawsuits.us].
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)
Parent
Re:Anti-depressant to the rescue (Score:5, Informative)
Parent
Re:Anti-depressant to the rescue (Score:5, Interesting)
Parent
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.
Parent
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.
Parent
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)
Parent
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.
Parent
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.
Parent
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]
Parent
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.
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.
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.
Parent
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.
Parent
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.
Parent
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.
Parent
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?
Parent
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.
Parent
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.
Parent
Re:Interesting (Score:5, Interesting)
Parent
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.
Parent
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.
Parent