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RIAA Defendant Says Kazaa Settlement Bars Case 174

Posted by Zonk
from the can't-have-it-both-ways dept.
NewYorkCountryLawyer writes "The defendant in Arista v. Greubel has filed an answering statement. The statement says that the RIAA's case against him, since it's based upon his use of Kazaa, is barred by the RIAA's receipt of $115 million from Kazaa. Mr. Greubel also challenged the constitutionality of the RIAA's $750-per-song damages theory, saying damages should be limited to $2.80 per song. See the previous Slashdot discussion of that issue and Judge Trager's decision in UMG v. Lindor."
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RIAA Defendant Says Kazaa Settlement Bars Case

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  • by ClaraBow (212734) on Friday November 17, 2006 @04:38PM (#16890534)
    against individuals or have all of them been settled out of court? This has been going on for so long that I've lost track!
    • by SatanicPuppy (611928) * <`Satanicpuppy' `at' `gmail.com'> on Friday November 17, 2006 @05:02PM (#16890832) Journal
      They haven't won any actual cases against people, though they have won a number of suits against the companies running the file sharing software.

      This is an interesting defense, though I don't think it'll fly. I think the record companies will argue that the settlement against Kazaa was for creating the file sharing software, and not for actually infringing on any copyrights.

      I do think that the arbitrary value per song is long over due for a re-evaluation. 750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.
      • by cpt kangarooski (3773) on Friday November 17, 2006 @05:10PM (#16890918) Homepage
        750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.

        No, that's actually the number Congress provided in the statute. It's meant to be an alternative to having to prove actual damages (similar in some respects to, say, workman's comp). In fact, $750 per work is the minimum amount they can ask for; the maximum is $30,000 to $150,000, depending on some facts in the case. Don't think that the $750 figure is them being nice; it's meant to stay away from a jury that might side with the defendant, since if the minimum is what's sought, there's nothing for a jury to decide with regard to damages, or even to need to know about.

        As for settlement, that has nothing to do with anything.
        • Re: (Score:3, Insightful)

          by Astro Dr Dave (787433)
          No, that's actually the number Congress provided in the statute.

          So? It may be the law, but that doesn't make it right. Indeed, the due process defense is interesting, and probably is a better solution to the RIAA lawsuits. In general, a defense based on Kazaa's payment to the recording industry is not a good idea IMO. After all, a paid-off bully has incentive to extort more money from you.
          • Re: (Score:3, Interesting)

            A win on either defense would probably put the RIAA litigation juggernaut out of business.
            • by default luser (529332) on Friday November 17, 2006 @05:57PM (#16891434) Journal
              A win on either defense would probably put the RIAA litigation juggernaut out of business.

              That, or else you might start getting served papers for $2.80 in damages :D
              • by Fulcrum of Evil (560260) on Friday November 17, 2006 @06:26PM (#16891722)
                Cool - send them a twenty and go download some more stuff.
                • by Ungrounded Lightning (62228) on Friday November 17, 2006 @11:18PM (#16893694) Journal
                  Cool - send them a twenty and go download some more stuff.

                  Reminds me of my wife's granddad and the KKK.

                  They objected to his choice of wife. One of their members came out to his farm (as he was mending a fence with wife's pop - then a toddler - holding a tools for him) and ordered him off his land and out of the area. He waited until the guy turned around, then beat him unconscious, loaded him onto his mule-drawn wagon, and set the mules walking back home.

                  Sheriff came out to demand he come into town to be tried for assault. He said he'd be in the next day.

                  Came in and went to the judge's office. (Judge, of course, also KKK.) Judge told him the fine was something like $100 (a small fortune at the time). He laid down twice the fine.

                  "What's that for?" asks the judge. "I figure I'll pay for the next one in advance."

                  Then he beat the tar out of the judge.

                  (How he avoided the lynch mob is a separate story. And don't try this at home - or in court - these days, kiddies.)
              • at, or else you might start getting served papers for $2.80 in damages :D

                Then we'd have a lot more people settling out of court, that's for sure.

          • Perhaps it's not right, but that doesn't mean it's violative of due process. I agree, it's an interesting defense. Personally, I wouldn't bet the farm on it, but I do wish the proponents of the argument luck. It is better than the Kazaa argument, but more because that is limited to this plaintiff specifically, and wouldn't stop someone totally different winning in the same sort of case in the future.
        • by pdovy (952071) on Friday November 17, 2006 @06:21PM (#16891676)
          "On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered" (from the linked article, statement by Judge Trager)

          This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.

          Also - I think it isn't quite fair to say that if you uploaded 1 song to 50 people, and those 50 people upload it to 50 people, that you are responsible for all of those damages. Who is to say that they don't go after the 50 people you uploaded it to, and the 50 people they uploaded it to? If they did in fact, then they would be getting damages way in excess of the money they actually lost. Realistically, I think the defendant should only be responsible for damages *directly* caused by them - that is, their initial downloading of the song and their uploading it to others, if those others go onto share it yet again, they should pay the price, not the original seeder.
          • Good thinking. Here [blogspot.com] is an excellent law review article which agrees with you.
          • IANAL but does can the RIAA sue you for damages just because you make a song available for download? If no one actually downloads the song are you still liable? Logically it makes sense that the RIAA can only sue people for downloading. Sharing your files is a gray area to me, but it takes an act of someone else to actually commit copyright infringement.
            • The RIAA argues that merely "making available for distribution" is in and of itself a copyright infringement. I disagree.
              • And I'd say you're right. The statute requires actual distribution, not merely potential distribution. There was a case about this not long ago, but I'm blanking on it at the moment. I'm sure it'll come to me later.
          • This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.

            The only remedies are the ones in the statute. If some of those remedies are unconstitutional, then the statute is gone, and they have to find a different remedy permitted by the statute. The plaintiff can't just ask for an arbitrary amount of statutory damages outside of what the statute provides for; then the courts would be creating their own statutory damages, and that's impermiss
          • Re: (Score:3, Interesting)

            by aussie_a (778472)
            So if I stab someone to death and leave that knife in the body. And then a mentally competent adult comes across the knife and murders someone else with that knife, should I be held accountable for both murders? After all, I only murdered one person.
      • by squiggleslash (241428) on Friday November 17, 2006 @05:29PM (#16891104) Homepage Journal

        On the first point, I agree with you. Plus, that kind of argument doesn't fly anywhere else. Generally if more than one group commits an offense of some sort (civil or otherwise) against you, you don't have to pick just one of them to sue.

        As far as the second goes: as cpt kangarooski points out, the $750 is what is legislated, not some arbitrary figure the music industry has pulled out of it's rear.

        Moreover though, saying they should prove actual value lost is a nonsense and precisely that reason why a figure was legislated in the first place. You don't know how many people downloaded the song. You don't know how many of those people passed it on to others. You do know that the person put the music up for download onto a network where it was effectively available, without control, to millions of anonymous strangers.

        As if to make matters worse, putting that music up for download also increased the value overall of an piracy-oriented peer-to-peer system, making it a more practical and attractive alternative to legal music. If someone can expect to be able to use such a system to find an arbitrary song that they would otherwise have to pay for, they're likely to do so.

        And we haven't even begun to scratch the surface. Some have argued, for instance, that the 50-70c per song the content producers gets from the iTunes Music Store should be used as the "actual" value (as if putting up a single song to be downloaded 2,000 times works out at 70c of lost revenue.) The fact is though that this is a royalty paid for music that's already crippled using DRM and therefore of already limited utility. Would the industry have negotiated a rate that low if it were higher bitrate unencrypted MP3s that will never need to be complemented with versions on other medias?

        The bottom line is that I don't actually think the $750 is quite as extortionate as people claim it is. As a fine for putting someone else's music up for download by potentially millions of anonymous strangers, it's not exactly out of line.

        Do I think that it'd be fair for, say, a charge of copying a music CD for a friend to listen to? Absolutely not. But that's not what we're talking about here.

        I think both arguments look like bad lawyering to me and I wouldn't be surprised if the defendant gets into more trouble as a result than if they'd just kept their mouths shut and taken a settlement. The legal fees will pile up, and someone will have to pay them.

        • That's $750 PER SONG. Share 1(one) CD? $7,500+. That's a hefty fee for putting something on Kazaa. (Compare to fines for reckless driving and the like.) Given the bandwidth most people have it's extremely unlikely that they've uploaded to more then 50 people. (The song itself may be shared more then 50 times, but not by just one person.)
          • Re:Umm... (Score:5, Interesting)

            by shark72 (702619) on Friday November 17, 2006 @06:00PM (#16891456)

            "That's $750 PER SONG. Share 1(one) CD? $7,500+."

            Good point. I think the "$750 per work" language is a remnant of the old days of piracy, where people tended to pirate entire albums, books, or movies at once. It's from before today's song-by-song piracy.

            "That's a hefty fee for putting something on Kazaa. (Compare to fines for reckless driving and the like.)"

            Yet if your sharing that song with 10,000 people caused the rightsholders a loss of $750 of business, then it's just. Yeah, yeah, I know, the rightsholder might not need the money and might be a cocaine addict, but rich cocaine addicts have the same rights under the law as we do.

            "Given the bandwidth most people have it's extremely unlikely that they've uploaded to more then 50 people. (The song itself may be shared more then 50 times, but not by just one person.)"

            You've nailed it. I recall some analysis several years back that through fingerprinting or what have you, they found 16K copies of an Eminem song on a P2P network that all came from the same rip. Power in numbers.

            • Re:Umm... (Score:4, Interesting)

              by Anonymous Coward on Friday November 17, 2006 @07:27PM (#16892282)
              Double counting damages is not exactly legit. The RIAA cannot sue me for illegally distributing a song, claiming I am responsible for "downstream" sharing, and then sue "downstream" sharers as well. Either I am responsible or the downstream user is responsible -- claiming both, at least if the RIAA benefits from it the first time, is called judicial estoppel and is grounds for their argument to be thrown out. The defendant's theory in this case is probably similar.
            • by arth1 (260657)
              Yet if your sharing that song with 10,000 people caused the rightsholders a loss of $750 of business, then it's just.

              Then it would be just if they recovered the money once and all others would be free of indemnity after that. But the way the law is, it gives them the right to recover $750-150,000 from each and every one of the 10,000 people, which surely can't be in the spirit of justice?
        • by terrymr (316118) <.moc.liamg. .ta. .rmyrret.> on Friday November 17, 2006 @05:53PM (#16891382)
          Moreover though, saying they should prove actual value lost is a nonsense and precisely that reason why a figure was legislated in the first place. You don't know how many people downloaded the song. You don't know how many of those people passed it on to others. You do know that the person put the music up for download onto a network where it was effectively available, without control, to millions of anonymous strangers.

          Inability to prove your claim should not be grounds to relieve you of that burden.

          • Inability to prove your claim should not be grounds to relieve you of that burden.

            That's what IBM has been saying about SCOX.

        • Moreover though, saying they should prove actual value lost is a nonsense and precisely that reason why a figure was legislated in the first place. You don't know how many people downloaded the song. You don't know how many of those people passed it on to others. You do know that the person put the music up for download onto a network where it was effectively available, without control, to millions of anonymous strangers.

          Ever been to a library?

          They let people TAKE HOME books, CDs and DVDs!

          You don't know how
          • Library's have different rules applied to them, do a quick search for DMCA & library. The other flaw in your argument is that library's allow you to check out the physical media, not just give you a copy the electronic bytes. The library doesn't generate new copies of the content (though I believe they are legally allowed to do it 3x times), while your computer creates new copies of the content as it "shares". Now if there was only one copy of the file, and it left your computer when you shared it, y
        • If the user put up 5000 songs for download for 24 hours, but their personal internet bandwidth could only support actually uploading 50 songs in that time period, shouldn't they only be liable for a maximum of AverageRetailPricePerSong * 50?
          • by raynet (51803)
            Ah but you forgot that usually P2P programs split the files into small chunks that are then downloaded from multiple servers. So the question is, how much of the file do you need to upload for it to be counted as 1 song?

        • by aussie_a (778472) on Saturday November 18, 2006 @04:28AM (#16894792) Journal
          As a fine for putting someone else's music up for download by potentially millions of anonymous strangers, it's not exactly out of line.

          The RIAA is not a government nor a government agency. The RIAA cannot collect fines from individuals. Sorry, but the language we use is very important or else we'll start thinking things unconsciously. That's why anti-abortion people call themselves pro-lifers.
      • by JordanL (886154)
        I think the record companies will argue that the settlement against Kazaa was for creating the file sharing software, and not for actually infringing on any copyrights.

        But wasn't that their whole argument? That Kazaa thrived off of copyinfringement, not that they had some disdain for networking protocols...
      • Re: (Score:3, Interesting)

        by bluefoxlucid (723572)
        Lawsuits for creating file sharing software... lawsuits for creating encryption programs... lawsuits for creating blogs, a method of saying political leaders are whores... all banned. Hacked by Chinese.
    • As far as I know, the score as of today in contested cases is 0-0.

      The RIAA hasn't won any contested case.

      No defendant has won a contested case either.

      No contested case of which I am aware has been seen through to conclusion yet.

      (By "contested case" I mean a case in which the defendant (a) denies having done what the RIAA claims he or she did, and (b) is fighting back and not defaulting.).

      There are probably cases out there that I don't know about. If you hear of any, please let me know.
  • IANAL (Score:5, Informative)

    by Bryansix (761547) on Friday November 17, 2006 @04:39PM (#16890542) Homepage
    IANAL but I don't care. The defendant is right in every single assertion they have made. The RIAA is wrong and should be sued out of existence. /conversation
  • Piracy Tax? (Score:5, Interesting)

    by Thansal (999464) on Friday November 17, 2006 @04:41PM (#16890562)
    hmm, does this sorta set a precedent for us to use our Zunes to hold pirated music? After all, MS Basicly setteled it premptivly by paying off one of the major labels....
    • Re:Piracy Tax? (Score:5, Interesting)

      by HappySqurriel (1010623) on Friday November 17, 2006 @04:46PM (#16890632)
      Essentially that is what happened in Canada ...

      The Recording industry lobbied the government to introduce a tax on recordable CDs (and MP3 players IIRC) which was then paid out to the recording industry; later the recording industry wanted to sue individuals in Canada for downloading music and it was ruled that people had already paid for the music through this tax.
      • Re:Piracy Tax? (Score:4, Interesting)

        by zxnos (813588) <zxnoss@gmail.com> on Friday November 17, 2006 @04:56PM (#16890742)
        silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?
        • silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?

          I don't know about Canadians, but my understanding is that with the Zune situation, the artists get half of the money that Universal gets from Zune sales. I think Universal gets about $1/Zune. So each artist gets a pico-cent from the Zune. Altogether they should end up with a total of 12 pico-cents each.
          • maybe they can eventually buy a song, or a yo-yo or something.

            that Canadian media tax was also put on blank CDs and DVDs iirc. oddly i do not think it applied to HDDs, just plastic media and portable MP3 players. didn't the iPod/MP3 player part of that tax get overturned? i thought there was some sort of rebate. i know the same idea has bounced around in parts of Europe too.
        • Re:Piracy Tax? (Score:4, Insightful)

          by Anonymous Coward on Friday November 17, 2006 @05:13PM (#16890942)
          in theory, yes ... in practice, no

          administrative costs are excessive
          industry collects revenues
          system lacks proper accountability and transparency

          imho, it's like many other good ideas that have been corrupted by greed

          its one redeeming feature, there is less lawyer fodder
        • by shark72 (702619)

          "silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?"

          To expand on some other answers: it's split up roughly according to sales, and goes to Canadian artists. Which means that the bulk will go to Celine Dion and her songwriters, but your typical recording artist or songwriter who sold maybe 5K CDs last year won't get anything worthwhile.

          Many Canadian music fans use the tax as an moral free pass to pirate as much as they want since

          • by Cervantes (612861)
            They stand a much better chance of making money if you were to actually buy their CD.

            And that's why I don't buy CDs, but rather go to the shows. Artists make crap off of CDs, and new/indie artists make even less. But if I go to the show, buy a ticket, and maybe buy a CD or TShirt there, the artist ends up getting more money out of that than if I'd bought their entire anthology from The Record Store.

            For bands where I can confirm the band runs the website and not the label, I'll buy the music or merchandise o
            • by shark72 (702619)

              "And that's why I don't buy CDs, but rather go to the shows. Artists make crap off of CDs, and new/indie artists make even less. But if I go to the show, buy a ticket, and maybe buy a CD or TShirt there, the artist ends up getting more money out of that than if I'd bought their entire anthology from The Record Store."

              Just to correct one generalization -- many indie labels pay the artists more than do the big labels. I'm referring to Magnatune as well as traditional indie labels.

              Anyway, I've heard from

        • by debrain (29228)
          silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?

          Not a silly question at all. I was one of the official objectors on this court case in federal court a few years back. Their inability to fairly distribute brought the whole regime into question, and for that reason (among others) I argued that it should be scrapped.

          Right now it's collected and distributed by an agency called the Canadian Private Copying Collective [www.cpcc.ca]. They base their dist
          • Re: (Score:2, Insightful)

            by GeorgeS069 (956679)
            why not have the CPCC pay a tariff towards each legally purchased CD?
            Kind of like a reverse tax.
            They collect the money and then subsidize the CD sales.
            That would make sure that the truly more popular artists receive the money according to sales and not the radio stations play lists.
            just an idea but,it might work.
      • by shark72 (702619)

        "The Recording industry lobbied the government to introduce a tax on recordable CDs (and MP3 players IIRC) which was then paid out to the recording industry; later the recording industry wanted to sue individuals in Canada for downloading music and it was ruled that people had already paid for the music through this tax."

        Are you sure that it was the CRIA? I thought it was SOCAN that lobbied for and collects the tax -- but please correct me if I'm wrong.

        I know it's an easy shorthand to blame "the recor

      • Note that the US also has a "piracy tax" on certain recordable media that is connected to the provisions of law that allow noncommercial individual sharing of recorded copyright-protected audio (but using a computer in the reproduction is explicitly excluded) under the Audio Home Recording Act.
      • Re: (Score:2, Insightful)

        by FreakerSFX (256894)
        You are wrong - that "tax" does not protect you from music companies. You should check into it before you get sued. They have been much less litigious in Canada but the current government is passing (has passed?) legislation to make it open season on file sharers.
      • Re:Piracy Tax? (Score:5, Informative)

        by wrook (134116) on Friday November 17, 2006 @05:50PM (#16891350) Homepage
        Not entirely true.

        The recording industry lobbied the government for a levy (not a tax) on recordable media. The government decides what media is covered and what the amount of money is levied. The money is sent to the recording industry which is supposed to distribute it to the recordning artists (I don't believe that part has actually happened yet).

        In exchange for the levy, the copyright act specifies that copying an audio musical performance for personal use is not considered infringement. This is *very* different than saying "It has already been paid for". It has not. Copying for person use is *not* infringement whether or not the must has "been paid for".

        The court case in question was an injunction to get certain ISPs to release the names of accounts who had been shown to share files over the internet. In the case, the recording industry failed to show that they represented the copyright holders for those files (they had file names, not contents). And they failed to show that the copying was not for personal use. Further they failed to show that making a file available *to others* on the internet actually infringed copyright (since *they* weren't the ones who were copying it).

        So, they failed to show any evidence at all that copyright infringement had occurred. And so the judge did not grant the injunction.

        Right now the Canadian government is making ammendments to the copyright act. There are no details on what those ammendments will be. But one can guess. Government officials have been meeting with recording industry lobbiests to consult on the issue. The government even paid hundreds of dollars to take lobbiests out for lunch. So far they have refused to meet with pro-user lobbiests.
    • I'll squirt to that!
  • by 8127972 (73495) on Friday November 17, 2006 @04:43PM (#16890596)
    ..... Or the terrorists win.
  • by metoc (224422) on Friday November 17, 2006 @04:48PM (#16890662)
    The CRIA (Canada's RIAA, or more correctly the multinational IAA as they represent no Canadian artists, producers or studios) hasn't been suing Canadians because of the tariff on CD already makes us pay for being music pirates (the CRIA/RIAA says so). The CRIA convinced the government to put the tariff in place over a decade ago, and the CRIA knows it will get its hiney kicked if it is tested it in court.
  • Yeah... (Score:2, Interesting)

    by webheaded (997188)
    I'd love to see someone win but there are 2 things here:

    First off, who knows if what he is saying will work. If he goes into this he could be wrong and get completely fucked. They will of course offer a settlement, etc etc and everyone will be warm and cozy.

    Secondly, if they actually see a threat, they will simply drag it out as long as they can until the defendant runs out of money...at which point they will probably offer another settlement.

    He's fucked either way, unless he's rich or something.
    • Re:Yeah... (Score:5, Insightful)

      by Anonymous Coward on Friday November 17, 2006 @05:02PM (#16890834)
      There is no way for a person to win against the machine.

      Especially with that attitude...

      One point: computer geeks and programmers need to get used to the "feces flinging" technique of the lawyers. Write a program with multiple logically inconsistent statements and it will collapse in a screaming heap. Doing that is anathema to most programmers. But when mounting a legal defence (or attack), you're allowed make logically incompatible statements. You just keep flinging feces until something sticks. The fact you're arguing the case should be dismisseddoesn't stop you arguing that the damages awarded should be reduced 100x - EVEN THOUGH it's nonsense to talk of damages because you're arguing the case should be dismissed. Many computer geeks just don't get that. You're not programming a consistent logical system, you're feces-flinging. Remember that, and you can start to win much more often against the lawyer/CxO scum.

      • Re:Yeah... (Score:5, Insightful)

        by Rydia (556444) on Friday November 17, 2006 @05:19PM (#16890998)
        I like how providing people with multiple arguments about why you are right and allowing them to choose which ones they believe have merit makes someone scum.
        • What would you think of a friend who treated you to this example argument from law school?

          "In the first place, I never borrowed your car".
          "In the second place, the front end was crumpled when I borrowed it".
          "And in the third place, I returned it to you in showroom condition".

          "Scum" would be one of the milder words you might use.
        • by AK Marc (707885)
          I like how providing people with multiple arguments about why you are right and allowing them to choose which ones they believe have merit makes someone scum.

          It isn't multiple arguments about how I'm right. It's arguing that I'm right, and after you find in court that I am wrong, you should sentence me as if you think I'm right. The way a lawyer will prepare for the sentencing phase before the sentencing phase will lead to arguments that are not related to the finding, but the severity.

          Is it logically
      • Uhh....

        I don't know what computer programmers you work with, but there aren't many I know who don't understand an "if->elseif->elseif->elseif->else" loop chain.
        • Re: (Score:3, Insightful)

          by miyako (632510)
          yeah, it's sort of like how you see something in code every once in a while like:
          int x=5;
          if(x==5)
          {
          doSomething();
          }
          else
          {
          doSomethingElse(); //never should happen
          }
          It's essentially saying, "the fact is that X, but if all logic fails we'll recover as well as possible instead of just freaking out and dying".
          • Re: (Score:2, Funny)

            by Plaid Phantom (818438)
            Suddenly all the rhetoric, philosophy, and law that I've read in school is falling into place. It's like a giant Tetris chain.
      • Piffle.

        You're just complaining that lawyers make a lot of arguments in the alternative. This is really not different than having conditional statements in computer programming. You're required to make all the arguments you can make up front, partly to be fair to the other side (so they have a chance to respond), to not waste the court's time (courts do not tolerate surprises or sudden changes midway through a suit), and to avoid the danger of suing the defendant again and again over the same thing (which wo
      • Write a program with multiple logically inconsistent statements and it will collapse in a screaming heap. But when mounting a legal defence (or attack), you're allowed make logically incompatible statements.

        Not really; for the most part, you are allowed to, for instance, argue that one of two (or more) logically inconsistent scenarios is the case and present the arguments for each. It's not really at all analogous to much in programming, because if you right a program you are ordering the computer what to

      • > One point: computer geeks and programmers need to get used to the "feces flinging" technique of the lawyers

        Seems to me programmers already think like this... cover all possible conditions so your code doesn't end up in an unexpected state.

        switch (argument) {
        case ARG_ALREADY_SETTLED: get_off_totally(); break;
        case ARG_PENALTY_TOO_HIGH: get_off_easier(); break;
        case ARG_RIAA_ARE_LYING: get_off_totally(); break;
        default: cry_alot(); break;
        }
  • Could someone who actually IS a lawyer respond about the validity of this defense? I read it and say "yeah, that makes sense," but that doesn't mean anything because I don't know all of the ins and outs of litigation.
  • but what if he wins? (Score:2, Interesting)

    by DynamoJoe (879038)
    If his arguments prove to be a successful defense to file sharing on Kazaa, does that mean that all users on Kazaa just got a "get out of jail free" card? (is kazaa even still around?)
  • ok IANAL but the original complaint seems to be a terrible piece of writing :

    Plaintiffs are informed and believe that Defendant, without the permission or
    consent of Plaintiffs, has used, and continues to use, an online media distribution system to
    download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public,
    and/or to make the Copyrighted Recordings available for distribution to others. In doing so,
    Defendant has violated Plaintiffs' exclusive rights of reproduction and distribu
    • Re: (Score:3, Informative)

      by DragonWriter (970822)

      So they're alleging that they believe something ? Shouldn't their allegation be "Defendant illegally downloaded our stuff" and not "We believe the defendant illegally downloaded our stuff".

      One initiating a lawsuit is not required to have evidence establishing the truth of every claim before filing a complaint (that's what discovery to develop evidence and trials are for); those things that the plaintiff does in fact believe and will seek to establish as fact, but which the plaintiff cannot state as certain

      • by terrymr (316118)
        I'm not saying they need evidence, I'm saying they need to clearly and succintly explain what the alleged tort is. Instead they claim that they have a belief. I've seen a bunch of complaints and they aren't usually worded like this.
        • Re: (Score:3, Informative)

          by DragonWriter (970822)

          I'm not saying they need evidence, I'm saying they need to clearly and succintly explain what the alleged tort is. Instead they claim that they have a belief. I've seen a bunch of complaints and they aren't usually worded like this.

          I've seen a bunch of complaints, and they are a mixed bag, but references to "information and belief" aren't all that uncommon. Here are a few examples from a quick googling:

          Raytheon v. John Does 1-21 [netlitigation.com]
          Roadrunner v. Network Solutions [patents.com]
          US v. Olivia Alaw, et al. [usdoj.gov]
          Macromedia v. Adobe Syst [techlawjournal.com]

          • by terrymr (316118)
            OK - Fair enough ... but it apparently caught the attention of the defendants lawyer in the case who repeatedly says that they are in no position to admit or deny that the plaintiff believes something.
      • by terrymr (316118)
        You link deals with affidavits, where you are making sworn statement and wish to qualify something you don't have direct knowledge of. Complaints aren't written that way, a complaint is presented as a set of facts. The defendant can then admit or deny each fact alleged. You then have a trial or other proceeding to sort out the disputed facts (if any) or points of law as appropriate.
        • You link deals with affidavits, where you are making sworn statement and wish to qualify something you don't have direct knowledge of. Complaints aren't written that way, a complaint is presented as a set of facts.

          You clearly didn't read the link:

          information and belief
          n. a phrase often used in legal pleadings (complaints and answers in a lawsuit), declarations under penalty of perjury, and affidavits under oath, in which the person making the statement or allegation qualifies it. In effect, he/she says: "I

          • by terrymr (316118)
            You're right on the link.

            It still seems like bad writing in this case as they've qualified their core allegation as a belief. I guess you don't get style points in a lawsuit though.
    • by jfengel (409917)
      "Informed and believe" is usually used in conjunction with "allege". The lawyers agree with you that it's a weird formulation, and repeatedly say, "We don't know what you believe, and don't care." I'm not sure why they didn't use the word "allege" there, since they're right: it doesn't matter what they believe or what they know. I don't know what the judge is going to make of it.

      Just for the record, they're not accusing the guy of downloading stuff. They're accusing him of uploading stuff.
    • Re:Bad complaint (Score:5, Informative)

      by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Friday November 17, 2006 @06:12PM (#16891566) Homepage Journal
      I agree with you that the complaints are defective.

      They're all the same by the way, all 20,000 of them.

      So far though 6 out of 6 judges have said that this vague complaint is ok for the first round.

      We're still waiting for judge number 7, Judge Karas, in Elektra v. Barker [riaalawsuits.us].
  • Just an opinion (Score:3, Interesting)

    by zappepcs (820751) on Friday November 17, 2006 @05:20PM (#16891008) Journal
    because IANAL and other such notices, and either way, if IRCC, Kazaa was sued successfully because they encouraged the illegal downloading and sharing of copyrighted works through the use of their software, rather than being responsible for everyone's use of their software, they were found guilty of encouraging people to use their software for illicit purposes, sort of like a pipe manufacturer encouraging people to get high, rather than simply selling pipes. Its a fine line, but I think this guy might have the same chance of pleading innocence as those who became hooked on cigarettes... IF ... nothing else is given as evidence against him. It is a very thin edge he is on... as far as I can see.

    They may be complicit, but I think the judge will still see this guy as having guilt regarding the 'crime' in question.
    • by Kjella (173770)
      ts a fine line, but I think this guy might have the same chance of pleading innocence as those who became hooked on cigarettes... IF ... nothing else is given as evidence against him. It is a very thin edge he is on... as far as I can see.

      No, there's no fine line. Even if you can prove you did it in good faith, you're still liable (I think it drops from 750$/work to 100$/work, but you'd have to look it up).
  • I see that the defendant has requested a jury trial, an interesting choice... How likely is some sort of jury nullification, should the case actually go to a jury trial? (Of course, the jury could simply find that the facts support the defendant's case, which is not the same as nullification. How would we know the difference?)
    • by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Friday November 17, 2006 @05:32PM (#16891138) Homepage Journal
      We don't need jury nullification. The plaintiffs have no case.
    • by westlake (615356)
      How likely is some sort of jury nullification, should the case actually go to a jury trial?

      juries tend to be middle-aged, middle class, small-c or large-C conservative. people who take the oath seriously and are not looking for an excuse to beg off.

      not a particularly benign environment for the defendant.

      one last word of practical advice for the Geek: never go into court thinking you are O.J. Simpson.

      • The juries in these cases will be very pro-defendant. Which is why you're not hearing about a lot of jury trials. It's not the RIAA's style to let it get to that.


      • Jury nullification is not needed. All that is needed is a fair trial. In most of the cases.... the RIAA does not have a case. No reason in the world to think the jurors will be biased towards the RIAA.
  • Terminology (Score:3, Informative)

    by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Friday November 17, 2006 @05:47PM (#16891288) Homepage Journal
    Just for the record, the document is called an "answer", not an "answering statement".
  • Glad I thought of it [slashdot.org]. :) But seriously, I'm glad to see somebody pursuing this line of thought. I hope the guy doesn't end up settling, because these are issues of law that really need an answer from the courts.

    There's an element of "doing it on principle" here, because if Joe Sixpack is jointly and severally liable with Kazaa for damages, then it means that Kazaa could (at least potentially) sue Joe for his contribution to the damages. It opens a lot of questions, like how much of the settlement Joe is
  • I'd love to see a defendant in one of these suits argue that because they had previously bought a spindle of CDs or any media storage device that has the tariff/tax included in the price (that supposedly to compensate for piracy) they should not be held liable for the copyright violations, and *then* counter sue to force the RIAA/MPAA's hands to either give up the tariff or the right to sue for the violations.

    Seems these orgs are double-dipping in a *big* way with the current system, and they need to get

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