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.'"
Yes (Score:5, Interesting)
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:The problem with juries (Score:5, Informative)
Re:The problem with juries (Score:4, Interesting)
Re:The problem with juries (Score:4, Informative)
Can you rebut this? (Score:5, Informative)
http://www.consumer.state.ny.us/clahm/clahm-child
Parents or legal guardians (other than foster parents) can be liable for up to $5,000 in damages for the willful and malicious damage, destruction, concealment, or theft of property (whether publicly or privately owned) by their child, if between 10 and 18 years old. This also includes the actual monetary damages suffered by a school or other public or private victim in responding to the false reporting of an "incident" or placing a "false bomb" by a minor. If damages awarded by the court exceed $500, the parent can ask to have damages limited to that amount they can actually afford to pay, up to $5000, but not less than $500, because of financial hardship.
this would seem to indicate, parents CAN in fact be liable for child actions.. can you resolve please, this difference of opinion?
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The lawsuit is not about willful and malicious damage, destruction, concealment, or theft of property. So I guess the law, which you so wonderfully quote, is quite against you.
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I guess this is supposed to be the relevant portion for you, and I applaud your having taken the time to look around. But the fact is that copyright infringement is generally a civil matter [wikipedia.org]. I think the code you quoted here does indicate a slant toward holding guardians responsible for children's deeds, so I wouldn't be surprised if at least some jurisdictions held them responsible.
It'd be nice if certain people would educate and inform
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.
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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.
PS here's a civil liability quote (Score:2, Informative)
General Obligations Law 11-105
Parents or legal guardians of an unemancipated minor shall be civilly liable for said minor who commits larceny against the property of a mercantile establishment to the operator of such establishment in an amount consisting of:
a. the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed $1,500.00; plus
b. a penalty not to exceed the greater of five times the retail pric
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Under no sane interpretation has a copyright violation ever been considered a "damage, destruction, concealment, or theft of property."
Besides, state law doesn't matter here. We are dealing with Federal copyright law.
Re:Can you rebut this? (Score:4, Interesting)
Re:Can you rebut this? (Score:4, Interesting)
Your post and reply I wanted most of all. I wasn't even necassarily disagreeing with you- just asking for a clarification.
you say parents are NOT liable, and I had- even before this slashdot post, a back of my head factoid floating around that NY has statutes concerning liability for parents & children and that is a kinda common knowledge thing that in NY it is greater than the norm in the US. I went resarching based on my recollections and then found evidence of it. I'm willing to accept your knowledge is greater in this area than my own- I just wanted you to expand on your original assertion as my citation would seem to diasgree with you- But I was hoping there wouldl be another layer or element I am missing.
Re:Can you rebut this? (Score:5, Informative)
It seems focused (Score:2)
"The question is under what circumstances the distributor of a product capable of both lawful and unlawful use is liable for acts of copyright infringement by third parties using the product. We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of
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That being said, I shou
Re:The problem with juries (Score:4, Informative)
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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 NewYorkCount
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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!
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Your analogy is not useful, because the laws with regards to your car have a double standard. While you may not be liable for someone getting a ticket while driving your car, you are liable if they get into a wreck... it's your insurance that'll end up having to pay, and your premiums that will go up.
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Not always: a jury verdict is a crap shoot, a risky and expensive roll of the dice.
But first you have to get the case to trial. That is a months or years long ordeal for your severely disabled defendant.
It will be a bitch if you lose.
No. (Score:2)
What they fear is obsolescence. Well, that and jail time. I think some of each is in store for these guys.
Duh (Score:5, Interesting)
If people start filing counter claims, then the RIAA has no chance of dropping the case without getting dinged for lawyers fees.
Re:Duh (Score:5, Informative)
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2. Even if it was decided for Foster, her case is in Oklahoma (10th Circuit), whereas the Schwartz case is in NY (the 2nd circuit). Two completely different Federal circuits, which means that precendent in either circuit is not binding upon the other, even though both counterclaims are almost exactly the same.
Re:Duh (Score:5, Informative)
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RIAA: "Hey, we're going to sue you. Unless you settle, of course."
Person: "Really? Yeah, no. I am absolutely confident that you will get exactly zero evidence from my computers, should you seize them. You will lose, and I will file a countersuit."
RIAA: "Uh..."
Person: "I will stop working; I have friends that will help fund my crusade. Make no mistake, I will make it my personal mission for several years to bury you and continue setting some civil precedence, like others before me."
Of course,
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.
Re:Duh (Score:5, Informative)
As to your comment that we should have made a Rule 11 motion, that can be done at any time in the case, and one that may not be necessary, since the Copyright Act gives Ms. Schwartz a right to attorneys fees, on a much lesser showing than would be needed under Rule 11. Rule 11 motions should never be undertaken lightly.
If you're really a first year law student, please don't -- when you get out there -- practice law like these guys do.
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Thanks (Score:2)
Nothing to add really, just wanted to say thanks for all you're doing.
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Comment removed (Score:3, Insightful)
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Re:Turkeys hate Christmas. News at Eleven (Score:5, Informative)
Re:Turkeys hate Christmas. News at Eleven (Score:5, Informative)
The Defendant asserts that under 505 of the Copyright Act, "the court may . . . award a reasonable attorney's fee to the prevailing party as part of the costs." Which is actually a straight quote from the law.
Page 14 of the PDF, Page 11 if you go by the internal #ing [ilrweb.com] is the section of the defense's legal brief which discusses the counterclaim issue.
The brief quotes from a SCOTUS case called Fogerty v. Fantasy, Inc. [oyez.org]
The Question: Do federal courts have discretion over whether or not to force a loosing party to pay all or part of the victorious party's attorney's fees?
The (Short) Answer: Yes
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Except that I wouldn't post anonymously.
Re:Turkeys hate Christmas. News at Eleven (Score:5, Funny)
Well since you've started it, you might as well finish the job by including the 'notfud' 'yes' 'no' and 'maybe' tags.
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Maybe the RIAA's lawyer just gets a bonus from the legal damages if there are no counterclaims.
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No, the submission specifically claims that the RIAA is afraid of countersuits ( albeit via a rhetorical question ). There is a difference between "not liking" and "being afraid of" something. The reason that the RIAA would be *afraid* rather than annoyed or in a state of dislike towards it is that countersuits could be a successful strategy against their racketeering and intimidation campaign.
If you are sued by the RIAA,
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I think you're horribly confused about the legal system...
The courts could care less whether or not you have representation in a civil case, they also dont care if you defend yourself, they dont even care if you show up*.
*Not in the way they care if you didn't show up to a criminal proceeding anyway.
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on the other h
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heh (Score:5, Insightful)
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More shocking to me is this: [p2pnet.net]
To boost their claims without actually having to prove anything, the RIAA is also using the mainstream media to publicly harrass and humiliate the Santangeo family via a 'court document' which, although it still hadn't been indexed at the time of writing, or seen by the San
Re:heh (Score:5, Informative)
Basically, the Supreme Court of the United States (SCOTUS) has read the federal laws and the constitution as allowing judges wide discretion over whether or not the partys before the court can request that the other side pay all the costs incurred in pursing the suit.
You want to sue me? I'm innocent!
"Yeah, but you can't pay for your legal defense, so you'll lose and have to pay anyway"
That's not fair, your Honor, if I win, will you make them pay for my fees?
seems fair to me.
"gulp"
"Can we drop the suit?"
Sure, but you have to pay the fees she's already incurred.
"Uhm.. let me try to change your mind"
it's your dime
And that's where it is now
-GiH
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Criminal cases decide between guilty and not guilty, not innocent.
In fact, I think this "quibble" is far less pedantic than using "innocent" to describe a civil finding (especially given that he was paraphrasing in lay English something that defendant, not the court, was saying) because in what appears at first to be just a difference in terms actually has wrapped in it one of the guiding philosophies of our criminal legal system, which is that you need to be p
Re:heh (Score:4, Interesting)
I don't have the numbers in front of me, so I'll keep it vague.. but somewhere well above 70% of civil suits are settled out of court. Normally a plaintiff's lawyer will work for pay or for a percentage - either way the RIAA is likely rolling it in.
Consider that these seemingly random intervals between big announcements of a few hundred suits are probably spent gathering data and building cases for the next batch of suits. It's a bussiness plan unto itself, not an attempt to stifle music sharing on the internet. If the RIAA wanted to stop theft and make money, they could organize wide licensing agreements with groups like AOL and Comcast that provide internet services to users - you subscribe for internet acess, you get all the music you can eat. AOL offers this type of service through music now.. Yahoo has a similar one.. then there's Napster, etc.. all that stands between these services and broader use is general availability - they need to be able to download the songs and carry them around with them.. or have an internet enabled Ipod-like device that streams the data where you need it when you want it.
Sorry, I started waxing poetic - basically they do this not because its effective at ending piracy or building their legitimate buisiness, but because it's a money machine unto itself. Drop a coin and pump as hard as you can.
-GiH
98% of cases end out of court (Score:3, Informative)
In the federal system only 2% of tort cases end in a trial. Additional Federal Civil Justice Facts at a Glance [usdoj.gov] The plaintiff tends to win, but the odds are little better than a coin toss.
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-GiH
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Re:heh (Score:4, Interesting)
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-GiH
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Non mutual collateral estoppel (Score:5, Interesting)
Take for example, "Is the IP log showing the IP assigned to you by your ISP was involved in sharing enough for a copyright violation?" If the RIAA litigates this question, and wins, they win that case. They will have to litigate that issue against with the next defendant, and so on, because the next defendant may have different arguments.
But if the RIAA loses, they can not get a second bite at the apple by tring the same argument on a different defendant. They have litigated that issue, and lost. They are "estopped" from relitigating that particular issue.
This is common in the patent litigation, where just becuase you won 10 patent infringment suits, the 11th defendant can still beat you, but once ANYONE has beaten you, you lose from then on on that legal issue.
If the RIAA ever loses, you can bet that 1) they will appeal, and 2) while the appeal is pending, they will pay the defndnat a bazillion bucks to "settle" with vacation order, which will nullify the decision. And if you think they won't or can't, the insurance industry has been using this exact tactic for decades.
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How is the insurance industry vile? They are doing what many financial companies do, selling a derivative an underlying asset. In this case, an option on healthcare. They sell you a contract that they will give you healthcare at a fixed cost (your deductible) if some condition is satisfied (you get hurt). If we didn't have insurance, healthcare would be completely unaffordable when you need it most.
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But anyway
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Since insurance became widely available for pets, veterinary charges (which had been fairly stable for decades) have skyrocketed -- now 5 to 10 times higher than they were just five years ago (when pet insurance really took off). The main culprits are that now insurance can be counted on to pay for the big bills, which discourages cost-control, and of course insurance demands
Reading this story was a bit like ... (Score:3, Funny)
You understand quite a lot of the individual words, but once they're put together into sentences you (or, more precisely I, as a native English speaker, YMMV of course) end up without the remotest clue what the overal paragraph means.
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I don't think "overal" means what you think it means.
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).
Re:Relevance? (Score:4, Informative)
It's a case against a woman with Multiple Sclerosis who's never even heard of file sharing until the RIAA came after her. She just uses her computer to communicate with people by email. The RIAA knows this, but doesn't care.
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The fact that this woman is deserving of sympathy due to her disease makes the article more compelling to readers (and probably the author).
The courts tend to protect those who for econonomic or physical reasons have difficulty protecting themselves.
Consider the language the court tends to use when discussing adhesion contracts, and products liability issues, etc.
-GiH
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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.
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The RIAA cartel can't force artists to sign contracts. But if consumers are afraid of digital distribution, it becomes useless to artists, thus reinforcing the RIAA distribution lock-in.
Makes a person want to polish their tinfoil hat before examining market-shaping forces of any ilk, eh?
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To answer your question, since you're so big on getting answers to your questions, I definitely do believe that the
Re:Relevance? (Score:4, Interesting)
I have a hunch it's relevant to the RIAA, too, and that it's got something to do with their rather peculiar motion to silence her counterclaim... but of course I can only speculate on what's in their minds.
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Avoiding purchase.... (Score:4, Interesting)
The whole point of copyright is money. Shouldn't anyone suing over a copyright issue have to show that their client suffered financial loss right up front before anything else?
Just my thoughts.
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The constitution grants the copyright holder exclusive control over distribution. It is within his right to demand that the infringement end, whether he has suffered financial loss or not.
Unless you can produce a license to distribute content on the P2P nets that sells for $1 a track on iTunes it fair for a judge or jury to conclu
The GPL depends on copyright law (Score:2)
Money is not the only reason that someone would want their work protected by copyright. Every piece of GPL'ed code that is out there is protected by copyright, but not for the purpose of making its holder any money. The purpose of the licence is to keep the code Free. You won't find Stallman claiming that the point of copyright is
The RIAA..... (Score:3, Insightful)
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Fixed that for you.
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