Does the RIAA Fear Counterclaims? 245
NewYorkCountryLawyer writes, "The RIAA seems to have a fear of counterclaims. In Elektra v. Schwartz, a case against a woman with Multiple Sclerosis, the RIAA is protesting on technical grounds Ms. Schwartz's inclusion of a counterclaim against them for attorneys fees. This counterclaim includes as an exhibit the ACLU, EFF, Public Citizen brief in Capitol v. Foster, which decried the RIAA's tactics as a 'driftnet.' In prior email correspondence between the lawyers Ms. Schwartz's attorney had offered to withdraw the counterclaim if the RIAA's lawyer could show him legal authority that its assertion was impermissible, saying 'I wouldn't want to get into motion practice over a mere formality.' The RIAA lawyer's response was 'I will let you know.'"
Comment removed (Score:3, Insightful)
heh (Score:5, Insightful)
The problem with juries (Score:5, Insightful)
My "single-mom with multiple sclerosis" beats your "starving artists".
If they just stuck with a straightforward legal approach, they might fare better. ie. Just because you're a single mom with multiple sclerosis does not give you a right to steal music/software any more than it gives you a right to deal drugs.
Re:Duh (Score:5, Insightful)
However, the original poster seems to be spinning this. Take whatever I say with a grain of salt because I'm only a first-year law student, but a 12(b)(6) objection is not merely technical. It's the most basic defense in federal Court to frivolous claims. If I give you a dirty look, for example, that's not nice, but it's not a crime or even an offense for which you can sue. I don't know the case law on point and (again) I'm only a first-year, but it doesn't look like this clause of the Copyright Act is something for which you can directly sue. It looks like exactly what the RIAA says it is...a cost-shifting provision the Court may impose as part of a final decision. If the defendant really thinks the RIAA is making a frivolous claim, they shouldn't be filing a counterclaim, they should be filing a Rule 11 motion, which allows the Court to punish frivolous claims.
However, I can understand why they're reluctant to do this. Some commentaries believe Rule 11 has been eviscerated over the years. In its current form, it allows the party being accused under it to simply withdraw the claim, motion, etc. within a specified safe harbor period and face no repercussions. It's supposed to encourage more civilized litigation, open discourse between the parties, etc., but some think it's swung too far in the direction of letting people throw out whatever ridiculous thing they want. Again, my analysis of the whole thing may be way off, but I hope it's not (or my civ pro grades may not be as good as I hope they will be.) Hope it helps.
Relevance? (Score:4, Insightful)
I appreciate NewYorkCountryLawyer's insight into many of the legal issues discussed here, but the summary seems misdirected.
The summary describes a "case against a woman with Multiple Sclerosis," and the lede of the P2PNet article is, "RaeJ Schwartz is a mother in Queen's [sic], New York, who's been seriously disabled by multiple sclerosis, a chronic, crippling disease of the central nervous system." Neither makes any further mention of her disease or disability, or any mention of how either affects the case, so we're left to guess: Is the implication that the RIAA is particularly unscrupulous for bringing a suit against someone with a severe medical condition, and that it should hence be additionally vilified accordingly? This leaves unanswered the basic question of why her disease should affect our analysis of the situation. My best guess: MS can severely limit mobility, so the implication is that her disease prevented her from downloading. (How likely is this? I'm ignorant of the practical specifics of the disease.) If this is the implication, it should have been included in the summary.
Instead of name-dropping her disability and saying no more, the summary ought to have included something more relevant, like "a case against a woman who has a severe medical condition preventing her from conventional computer use" or "a case against a woman who likely never downloaded any music" (as was suggested in the P2PNet article, though this would deserve more explanation, too).
The RIAA..... (Score:3, Insightful)
paying someone back (Score:2, Insightful)
I'm sure a great many individuals (including lawmaker types) consider both to be theft...
I'm trying but failing to visualize a situation where parents would be financially responsible for theft, and it's not a civil matter.
Re:paying someone back (Score:3, Insightful)
No matter how much people yell murder at someone stealing a car, it doesn't change the fact stealing a car != murder.
The only people who consider copyright infringement "theft" are ether the bias ones who say it is for the sake of emotional appeal or those who don't understand the concept of copyright in the first place. Though I will give you that many in the government tend to belong to both groups.
Re:Relevance? (Score:5, Insightful)
I don't share that outlook. I wouldn't have gone into the legal profession I did. I came here to help make the world a better place, not a worse place.
Ms. Schwartz is a very sick woman who didn't infringe anyone's copyrights. The RIAA's lawyers are aware of both of those facts. They should have dropped this case, but they and their lawyers are ghouls. In my view anyone who doesn't get that it's wrong to persecute helpless people this way isn't my kind of people.
I suggest you read what Jordan Glass had to say about these lawsuits [p2pnet.net] in an excellent article on p2pnet.net [p2pnet.net].
Sorry if you feel I "weaseled" out of answering the question. I think I did answer it.
Re:The problem with juries (Score:2, Insightful)
Re:Can you rebut this? (Score:3, Insightful)
That being said, I shouldn't have been so curt with him, but should have answered his question... not so much for his sake, but for the sake of other Slashdot readers.
Re:The problem with juries (Score:5, Insightful)
I wish more attorneys were like that. I have had clients who are attorneys in the past and I value less than pond scum, with morals/ethics that are below the most cowardly of terrorists. Some of the stuff they'd contrive just to win a case are abominable. They stoop to character assassination and the like rather than arguing based on law. Mr. Beckerman does not appear to be that type.
If you ever are on the receiving end of an RIAA case, you will grow to appreciate the likes of him. The RIAA seems bent on arguing away Fair Use, inventing law as they go along and use racketeering techniques in their anti-progress campaign, rather than working with their customer base and embracing new technology.
RIAA: if you're reading this, Napster directly resulted in my purchasing well over 100 CDs (possibly over 200) while it was live, because it introduced a try-before-you-buy solution. I discovered jazz (like Herb Alpert) and other instrumental music I would never have considered purchasing otherwise. Sadly, the only solution now is listening to partial track selections on Amazon, and I rarely base my decision on that because they invariably pick the worst part of a track to exhibit on their site. So, since then I download from Creative Commons sites (free/free music!), listen to classic rock, classical, and talk radio, and generally go out of my way to refrain from exposing myself to new content because I do NOT want to be your customer. The only CDs I've purchased since Napster's demise are:
David Gilmour's On an Island
Pink FLoyd's live Wall album
Hmm, there was another one I can't recall
So basically, Napster conduced me to buy more CDs over the course of 12 to 18 months it was at its peak than I did in 13 whole years I owned CD players previous to that. The rest of the content I have is recovered from old cassettes (yes, I still have hundreds of cassettes lying around along with a decent tape deck) and processed in Audacity to reduce noise and recover the highs, so I have enough music to keep me content between my existing collection and creative commons sites that I do not need your content. Embrace the try-before-you-buy model or go the way of the do-do as new bands grow wise to your racketeering methods and decide to openly distribute share their own content WITHOUT major label affiliation.
In summary, to be straight to the point as concisely as possible: Fuck you, RIAA members!
Re:The problem with juries (Score:1, Insightful)
Re:Relevance? (Score:3, Insightful)
To answer your question, since you're so big on getting answers to your questions, I definitely do believe that the "helpless and infirm" should be protected, rather than persecuted, in a civilized society.
Re: (Score:3, Insightful)
Re:The problem with juries (Score:3, Insightful)
Mainly because for all the hero worship he gets here, this gentleman is not particularly pleasant to debate things with. You either get curt condecending responses, accused of being too technical or statements implying that you are an RIAA stooge. And when you rebut those, you get modded flamebait.
We see a lot of people complaining that technical people aren't patient enough with them. Watching NewYorkCountryLawyer shows that it's not just technical people who can be dicks - any expert in their field can become impatient and rude when trying to explain extremely detailed issues to people not familiar with their field.
Re:Turkeys hate Christmas. News at Eleven (Score:3, Insightful)
The alternative is that there is no rational reason for them to oppose your approach, and they are just being jerks because (1) that's the way they practice law in general and/or (2) they're cranking up their billable hours. That's certainly a possibility, but I tend to think that doing this would be killing the goose that laid the golden egg, and they should be smarter than that. They're making a bundle on these thousands of lawsuits, and *should* have some overall strategy for this ride to continue.
Just some thoughts.