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?
(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
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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?
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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.
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 *@$#!!) do I retain any rights to listen to that music?
2. If I purchase a CD and it is subsequently scratched or broken to the point where it is not playable, can I legally download the songs from that CD from a file-sharing network?
3. If I purchase the DVD for a movie, could I legally download songs from the soundtrack for that movie from a file-sharing network?
Beckerman: 1. There's no such thing as a listening right, I don't know where you get that from. 2. I doubt it. 3. I doubt it.
I don't know about you, but I'm depressed after reading this answer.
Anti-depressant to the rescue (Score:5, Interesting)
Fair Use? (Score:2, Interesting)
Wouldn't some of this fall under fair use? Specifically ripping a CD to mp3 for listening to on a computer, iPod, etc. Are you really saying that when I buy a CD, I don't have the right to convert the music on that CD to a format of my choosing for use on a device that I own?
Note that I said for my use only, obviously if i then share that music with others the water becomes murky.
Evidentiary Procedure (Score:4, Interesting)
Re:I guess there's no Gray Area (Score:4, Interesting)
Wow, I always thought this was a fair use issue. I know fair use isn't what it used to be. I didn't realize it was completely negated. Maybe because I didn't physically make my own backup and went and grabbed someone else's "backup" it's off the negotiating table. I'm no lawyer obviously... someone care to comment?
I don't know about you, but I'm depressed after reading this answer.
I'm depressed there had to be an answer, or a question, in the first place.
Copyright Purpose and Private Use (Score:4, Interesting)
1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) 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??
Re:I'm not disappointed... (Score:4, Interesting)
Re:Anti-depressant to the rescue (Score:5, Interesting)
Re:Am I the Only One (Score:4, Interesting)
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.
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.
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!
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.
iRate radio (Score:3, Interesting)
Re:I'm not disappointed... (Score:2, Interesting)
I think what Mr. Beckerman is trying to get across is that the legal ground here is as solid as the deck of the Titanic. Unfortunately, because he IS a lawyer, it would be unprofessional of him to offer personal opinion on specific actions or topics which are not solidly grounded in case law. Especially in a public forum.
The rest of us can afford to postulate and opine, but he cannot. His job is to represent, not to judge.
Perhaps we should get a judge to answer some of the same questions. But then, apparently, the answers would depend on which judge we asked...
cheers,
iceaxe
Re:Interesting (Score:5, Interesting)
Re:Still Depressing (Score:3, Interesting)
Re:Fair Use and Destryoed CDs (Score:3, Interesting)
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 and just be allowed to listen to what you want, when you want, or are we stuck with the buy plastic CD even though we don't want a plastic CD?
Re:Fair Use and Destryoed CDs (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 nice booklet, and to get the convenience of getting it in this convenient form.
If we're buying a license to listen to the music, then that license comes with limitations, such as not being able to give copies to the world. But a license is separate from the physical disc; with the license, we can still make backup copies, and use those in case the original is destroyed. That's the way licensed software works. I can legally make a copy of a Windows CD as long as I have a valid license, and don't give any copies to other people.
The record industry wants it both ways, and they can't (rightfully) have it that way. The fact that they're getting their way shows that the laws in this country are just a scam, bought by those with money, enforced by a thoroughly corrupt court system, and not worthy of any respect at all.
Re:Anti-depressant to the rescue (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:The RIAA only goes after uploaders. (Score:1, Interesting)
Who cares what the RIAA says? The RIAA also says that personal back up copies aren't allowed despite all legislation up to this point (Home Recording Act, Net Act, DMCA).
What does the law say?
What is the intent of the current laws?
What is the point in mentioning what they say, as a means to tell someone how not to get sued rather than what their real rights are?
Seems ass-backwards to me.
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 going to bat against large, evil corporations on behalf of the little guy. Is Bill Lockyer a similarly spineless invertebrate?
And to answer your first question, I don't. I haven't heard a thing about you approaching any attorney general, state or otherwise. Nada. I haven't read any announcements that you approached the AG in your state, I haven't read anything about his/her response or lack thereof. I haven't heard anything. Good thing you guys are a lawfirm and not a PR firm.
Re:Fair Use and Destryoed CDs (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 conflation of the two may be archaic, that's still the law, and you'll still be in trouble for breaking it.
Re:Still Depressing (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 America is irrelevant if I bring up a valid point.
Example: I just moved from Chicago, where I had lived for slightly over a year, to Portland Oregon. I hated Chicago, absolutely despised it. I thought it was dirtly, loud and overall very depressing. I hate Chicago. Now, I also thought that the minority populations there, especially the blacks on the South Side, where getting a raw deal. The schools, for example, were poorly funded and even more poorly maintained. If I were to say to you in conversation, "Chicago's South Side schools are terrible!" and you were to reply, "Why do you hate Chicago?!" then you've entirely missed my point. True, I do hate Chicago but I wasn't saying anything about the quality of the city. My feelings on the city are, at that point, irrelevant. Much the same is true in situations where the discussion boils down to "Wait, are you saying you don't love America?"
> If all this ranting were true, then we certainly wouldn't be the country that EVERYBODY
> on the outside wants to come into.
Forgive me for making this assumption, but you've not travled much outside of the US, have you? This statement simply isn't true. Demonstratiably our complacense born of not having our infastructure destroyed in WWII has resulted in the US losing it's thunder in recent years. Alan Cox, for example, has no desire to come to the US. To say that everybody does this, or everybody does that, or indeed to say that most people do this or that, is almost certainly wrong. The hopes and desires of everyone on the planet are remarkably diverse.
> I'm defintely in the minority here...
Unless you've taken a survey don't make assumptions as to the viewpoint of groups of people. One tends to read in what one wants to see.
> when I say that religion and christianity in particular is not just important,
> but critical to the survial of this country that was built on those principals
> in the first place.
The US was not, in fact, built on Christian principles, or any other religious principles. The founding father's were mostly deists, which was the main intellectual "religious" preference at the time. The US's seperation of church and state was placed to make it much more difficult for a single religion to govern the US's politics, though that tends to happen anyway when most of the US population is of a certain religion. The US government was, quite opposite to your assertion, designed to keep religion out of the affairs of the state. We no more need Christianity to have a functioning government than we need Jainism, say.
> With out the christian mindset (knowing clear cut what is right & what is wrong)
Though I am agnostic I have had extensive Christian religious training. I'm a confirmed Lutheran (Missouri Lutheran Synod which is, curiously, the One True branch of Lutheranism according to some) have nearly a minor in theological studies and am quite familiar with the theological works of ancient and present Christianity. It is, then, exceedingly false to say that a Christian knows, clear cut, what is right and what is wrong. Right and Wrong has been debated amongst Christians since Jesus first started talking, which a consensus rarely being formed. Christianity is so splintered for exactly that reason, ala Martin Luther and the Reformation.
Though an absolute morality would be handy, it certainly doesn't exist in the confines of Christianity, though some would prefer that it did. However, none of those people ar
Re:A bad day on Slashdot (Score:3, Interesting)
I see this thread as evidence to the fact that /. group-think has grown out from merely a sub-culture with its own in-jokes, to being dangerously out-of-touch with reality. That 'listening rights' question is one prominent example.