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Answers From Lawyers Who Defend Against RIAA Suits 740

Posted by Roblimo
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.
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Answers From Lawyers Who Defend Against RIAA Suits

Comments Filter:
  • US Attorney General (Score:5, Informative)

    by NewYorkCountryLawyer (912032) * <{moc.lagelnamrekceb} {ta} {yar}> on Thursday September 14, 2006 @12:45PM (#16105735) Homepage Journal
    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].

    • 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.

      Yes, we all know the US Attorney General is in the back pockets of the groups that make up the RI/MPAA. That wasn't what I wanted to know. What I wanted to know was why nothing has been done with any attorney generals, specifically state AG's. In New York, for instance, (future governor, hopefully) Eliot Spitzer made quite a name for himself for g
  • Interesting (Score:4, Insightful)

    by legoburner (702695) on Thursday September 14, 2006 @12:46PM (#16105750) Homepage Journal
    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 (Score:5, Informative)

      by TubeSteak (669689) on Thursday September 14, 2006 @01:51PM (#16106542) Journal
      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 (Score:5, Interesting)

      by JourneymanMereel (191114) <jake AT bugzilla DOT org> on Thursday September 14, 2006 @02:02PM (#16106699) Homepage Journal
      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.
      • Re: (Score:3, Insightful)

        I don't wish they were criminal: holding civil cases to a criminal standard is absurd; desputes between parties go completely (unfairly) in favor of the one who didn't 'bring charges'. Instead, I wish they had a requirement that damages must be actual: statutory damages of $750 a song (you could rob a whole store's CD section, burn the CDs, and the store could only sue you for the equivalent of 20 shared songs) are completely absurd. Unfortunately we can't attack this with case law (although I would argue
    • Re: (Score:3, Insightful)

      by webengineer (963272)
      I've been following these "rights to music" threads for sometime now.

      What I don't understand is how ANYONE can think they have a right to give copyrighted "anything" to another. Or how anyone can believe they have a right to unpaid-for copyrighted "anything" (that is, stuff they haven't paid the rightful owner for).

      I could understand the fight against the big bad RIAA if the thing they are trying to stop wasn't illegal and unfair sharing of music.

      Or am I missing something? Are they fighting something othe
      • Re: (Score:3, Insightful)

        by Wavicle (181176)
        I could understand the fight against the big bad RIAA if the thing they are trying to stop wasn't illegal and unfair sharing of music.

        Do you believe that the end justifies the means? Should the RIAA should be at liberty to use whatever methods are at its disposal, including shaking down innocent bystanders and victims of other crimes (such as identify theft or unauthorized use of an access point) in order to stamp out piracy?

        You can decry their methods, but is doesn't change the fact that people are stealin
  • Still Depressing (Score:4, Insightful)

    by gasmonso (929871) on Thursday September 14, 2006 @12:50PM (#16105783) Homepage

    While I applaud these lawyers (that hurt me to say) I get the feeling that they are just as powerless as we. Everyone knows these cases should be thrown out, but they aren't. That's the real issue, not just successfully defending people. The entire practice of suing people over music needs to die a horrible death. I hope you can hear us Superman!

    http://religiousfreaks.com/ [religiousfreaks.com]
    • Re: (Score:3, Insightful)

      by QuantumG (50515)
      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 vigilante rampage and scare the shit out of some of these prosecutors/CEOs.
    • by MalleusEBHC (597600) on Thursday September 14, 2006 @01:06PM (#16105960)
      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.
  • by neonprimetime (528653) on Thursday September 14, 2006 @12:51PM (#16105806)
    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.
    • by NewYorkCountryLawyer (912032) * <{moc.lagelnamrekceb} {ta} {yar}> on Thursday September 14, 2006 @12:54PM (#16105831) Homepage Journal
      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.
    • by Krondor (306666) on Thursday September 14, 2006 @01:05PM (#16105946) Homepage
      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.
      • by odin53 (207172) on Thursday September 14, 2006 @02:03PM (#16106707)
        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.
    • by hey! (33014) on Thursday September 14, 2006 @01:36PM (#16106346) Homepage Journal
      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.


      • It is called ASCAP and BMI licensing. This is what restaurants, bars, and music venues pay to cover the costs of licensing for cover songs, playing background music and whatnot. I've looked into this, and it appears as though for like $200/yr or so, anybody can get one of these licenses for less than 200 or whatever people and it be OK to download and play anything you want at any time.

        In Britain, there is a TV license. Just out of curiosity, is there a possibility here in the US to get a music license a
  • Am I the Only One (Score:5, Insightful)

    by walmartshopper67 (943351) <jtp0142.rit@edu> on Thursday September 14, 2006 @12:56PM (#16105848)
    ... 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.
    • by theckhd (953212) on Thursday September 14, 2006 @01:04PM (#16105932)
      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)
    • by rabel (531545) on Thursday September 14, 2006 @01:15PM (#16106052)
      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: (Score:5, Insightful)

        by A nonymous Coward (7548) * on Thursday September 14, 2006 @01:38PM (#16106369)
        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 (Score:4, Interesting)

      by BGraves (790688) on Thursday September 14, 2006 @01:19PM (#16106102)
      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.
  • by loimprevisto (910035) on Thursday September 14, 2006 @01:00PM (#16105890)
    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?
    • by kindbud (90044) on Thursday September 14, 2006 @02:34PM (#16107079) Homepage
      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."
  • by Snarfangel (203258) on Thursday September 14, 2006 @01:00PM (#16105891) Homepage
    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.
    • by hey! (33014) on Thursday September 14, 2006 @01:15PM (#16106058) Homepage Journal
      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 (Score:4, Insightful)

    by Ubergrendle (531719) on Thursday September 14, 2006 @01:01PM (#16105904) Journal
    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!
  • by Anonymous Coward on Thursday September 14, 2006 @01:06PM (#16105956)
    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" (Score:4, Insightful)

      by xswl0931 (562013) on Thursday September 14, 2006 @01:23PM (#16106151)
      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.
    • Re: (Score:3, Informative)

      A lot of slashdotters refer to the "fair use laws" in their posts. IANAL, I'm a librarian in fact, but I'm pretty sure there are no such things. "Fair Use" is a defense, it's not really a law or a set of laws. There are a set of loose guidelines that are used to determine whether a particular use of copyrighted material is "fair", but there are no hard and fast rules. Different judges will frequently reach different outcomes given the same case. http://en.wikipedia.org/wiki/Fair_use [wikipedia.org]
  • um... (Score:3, Insightful)

    by Lord Ender (156273) on Thursday September 14, 2006 @01:07PM (#16105967) Homepage
    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.

    It seems strange to me that a copyright lawyer hasn't heard of the fair use rights granted by US copyright law (Title 17, section 107).

    The person asking the legal question is better informed than the lawyer!
    • Re: (Score:3, Informative)

      by gleffler (540281) *
      Here is 17 USC 107:

      "Notwithstanding the provisions of sections 106 and 106A, the fair
      use of a copyrighted work, including such use by reproduction in
      copies or phonorecords or by any other means specified by that
      section, for purposes such as criticism, comment, news reporting,
      teaching (including multiple copies for classroom use),
      scholarship, or research, is not an
  • by Nereus (733242) on Thursday September 14, 2006 @01:09PM (#16105989)
    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.
    Word, homeboy. That's just whack. Quite.
  • by scharkalvin (72228) on Thursday September 14, 2006 @01:20PM (#16106113) Homepage
    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).
  • by DamnStupidElf (649844) <Fingolfin@linuxmail.org> on Thursday September 14, 2006 @01:23PM (#16106153)
    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.
  • by mpapet (761907) on Thursday September 14, 2006 @01:25PM (#16106206) Homepage
    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 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.
  • by techstar25 (556988) <techstar25.cfl@rr@com> on Thursday September 14, 2006 @01:56PM (#16106617) Homepage Journal
    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?
    1. There's no such thing as a listening right, I don't know where you get that from.


    The listening right his question refers to is the right to "space shift" [wikipedia.org]. In other words, the right to "listen" to a recording at work on my iPod, or in my car on a burned CD-R, all while the original CD itself sits on a shelf at my home. This is a frequent topic of discussion amongst Slashdot regulars so I'm not so surprised you didn't know what he meant. According to Wikipedia we have this right based on the judgement in the case, "Recording Indus. Ass'n of Am. v. Diamond Multimedia Sys., Inc., 180 F.3d 1072, 1079 (9th Cir. 1999)". It gave us the right to make an electronic backup copy for personal use.

    The current RIAA website says "If you choose to take your own CDs and make copies for yourself on your computer or portable music player, that's great. It's your music and we want you to enjoy it at home, at work, in the car and on the jogging trail. [riaa.com] "

    Once the original is detroyed do we still have the right to keep our backups? Of course this question itself is a paradox because once we destroy the original we need the backup. However do we then have the right to even possess the backup if we can't prove we ever had the original? We don't know the answer to this, and that's what he was asking. However I don't believe this has been tested in a court yet.

    Regardless of any of this, his question is actually off topic because (to my knowledge) the RIAA is only "going after" people who are
    sharing files, not people who are possessing personal backups. Correct me if I'm wrong there.
    • Topic (Score:3, Informative)

      You are correct. The RIAA is only going after people who are sharing files.
  • by logicnazi (169418) <logicnazi@gmaiTEAl.com minus caffeine> on Thursday September 14, 2006 @02:10PM (#16106798) Homepage
    Thanks for the interview but I have to admit that I'm left feeling a bit disappointed by the answer to question 7 (the buisness about CDs getting stolen or burned in a fire). I realize that the law might be unsettled in this area but I think the questioner was asking for a legal analysis. What are the relevent questions that would have to be decided to answer these questions? What statues apply?

    In particular it is my understanding that fair use has long been understood to include a right to make a backup copy of your software or music. Certainly this fair use notion only makes sense if there are SOME situations in which it is legal to restore your software from a backup. Since it is a well accepted canon of legal interpratation that one shouldn't interpret laws to have absurd consequences or to render clauses meaningless when possible it seems this provides strong reason to believe that it is okay to restore your mp3s if your CD was destroyed in a fire.

    The question about the insurance company should follow pretty easily from any answers to the other questions. Surely the insurance company wishes to minimize the money it pays out and if you still retain a large fraction of the value of your music collection they will pay you less money. On the other hand if you no longer have the right to legally play/burn the music on your CDs you have lost all the value contained therein and if this sort of loss is covered by your policy they have to pay up.

    The question about whether you can download music you legally own is the most interesting as it goes to the heart of what it is that you purchase when you buy the CD. Is it a physical object or some limited rights to intellectual property. Either way has some serious consequences. Many of the claims by software companies that attempt to restrict your rights to do as you want with the software you purchase rest on the notion that you are just purchasing certain limited rights to make use of the IP while if what you are purchasing is more like physical possession of a CD it puts reselling that CD on firmer ground. Now if the CD had a specific EULA banning downloading the music on the CD that would be one thing but if that isn't the case things get very interesting.

    It would be nice to say that one had purchased a single right to listen to the music contained therin but copyright law doesn't work like this, generally it governs the making of copies. Thus I would guess the question comes down to whether the copy made by downloading from the internet is legal. However, if it is legal for you to copy the data from your CD to your computer what makes this case different?

    Anyway the point is that there are a lot of interesting questions here and I was hoping to see some quality legal analysis not my vague musings. Maybe I've just gotten spoiled by hanging out on law blogs but I'm kinda disappointed.
    • Re: (Score:3, Interesting)

      It's a physical object. If you lose it and want to replace it you have to buy another.
      • Re: (Score:3, Interesting)

        by Grishnakh (216268)
        That doesn't wash. Either we're buying a physical object, or we're buying a license to listen to the music.

        If we're buying a physical object, then the pattern of pits and holes on the disc is inconsequential. I can copy it as I like, and do whatever I like with that data: make backup copies, encode it into MP3/Ogg and copy it to my MP3 player, or put it on Kazaa. The only reason to buy the CD instead of downloading it from Kazaa is to get the full, uncompressed version on a nice, shiny disc, to get the n
  • by spiritraveller (641174) on Thursday September 14, 2006 @02:43PM (#16107176)
    Seriously people, show some fucking appreciation for someone with specialized knowledge who took time out to answer your questions.

    If you don't like the answers, well maybe it has something to do with the questions. Every question was modded either +5 "Interesting", or "Funny".

    Not a single question was modded "Insightful". And one of the questions insulted him for being a lawyer. Another stupidly asked why he doesn't contact the US Attorney General for help in fighting the RIAA.

    Of the good questions, he gave informative and helpful answers.

    Maybe it's just the nature of the issue (RIAA and filesharing) that brings out the most moronic of the slashdot crowd, but I am seriously irritated by the stupidity that's been displayed here.

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