Daily Nonsense

The RIAA has appealed to the court system to disallow the Web Cast streaming of the proceedings in the forthcoming case against Joel Tenenbaum.  Their argument?  They are afraid the results would be edited out of context and make them look bad.

Really?

How can they possibly look an worse?  Considering that they have waged a fruitless war upon children, the handicapped, and people who don’t even own computers, I think it’s hard for them to look any worse.

The issue in this particular trial is that the RIAA is also facing it’s fiercest opposition yet in the form of Charles Nesson, the William F. Weld Professor of Law at Harvard Law School.  Now, it’s been obvious to everyone that the RIAA is deathly afraid of Harvard and the legal guns it could bring to bear against them.  In the 5 years of fruitless litigation against college students the RIAA has not served a single subpoena against Harvard or its students.

If the US Congress and the US Senate are not afraid of being re-mixed to look bad then why the hell should the RIAA?  Either their arguments have merit and will sway public opinion in their favor or not.

RIAA Fears ‘Manipulation’ of Courtroom Web Broadcast

By David Kravets January 20, 2009 | 4:16:18 PMCategories: RIAA Litigation

The Recording Industry Association of America is objecting to the webcasting of pretrial arguments in an upcoming file-sharing trial.

The RIAA claims that the re-runs “will be readily subject to editing and manipulation by any reasonably tech-savvy individual.”

That is among the arguments the RIAA is making in urging a federal appeals court to reverse a Massachusetts federal judge’s order that would allow the pretrial broadcast this Thursday. The broadcast, assuming it goes forward, will include a Boston University student and his attorney challenging the RIAA’s copyright infringement case. It is believed to be the first time a U.S. federal trial court has allowed a live internet stream from the courtroom.

“Petitioners are concerned that, unlike a trial transcript, the broadcast of a court proceeding through the internet will take on a life of its own in that forum,” the RIAA wrote (.pdf) the U.S. 1st Circuit Court of Appeals. “The broadcast will be readily subject to editing and manipulation by any reasonably tech-savvy individual. Even without improper modification, statements may be taken out of context, spliced together with other statements and broadcast (sic) rebroadcast as if it were an accurate transcript. Such an outcome can only do damage to Petitioner’s case.”

The RIAA is taking exception to the fact that the feed will be distributed on the Berkman Center for Internet and Society’s website. The head of the center is Charles Nesson, who is defending Joel Tennenbaum, the defendant in the case.

“Accordingly, in the name of ‘public interest,’ the district court has directed the general public to a website replete with propaganda regarding the Defendant’s position in connection with this case, and that is specifically designed to promote Defendant’s interests in this case,” the RIAA wrote.

Last week, U.S. District Judge Nancy Gertner of Massachusetts granted the over-the-internet coverage for the 2 p.m. hearing. Only a handful of U.S. trial judges have ever allowed cameras in their courtrooms during a live proceeding. Most of the states grant local judges the discretion whether to allow cameras.

“At previous hearings and status conferences, the Plaintiffs have represented that they initiated these lawsuits not because they believe they will identify every person illegally downloading copyrighted material. Rather, they believe that the lawsuits will deter the Defendants and the wider public from engaging in illegal file-sharing activities. Their strategy effectively relies on the publicity resulting from this litigation,” Gertner wrote in granting the internet coverage.

The 1st Circuit did not indicate when it would rule.

The RIAA also said the broadcast “creates a serious risk of unfairly infecting the pool from which the jury in this case will be selected.”

The RIAA, which has sued about 30,000 individuals on allegations of copyright infringement, claims it is winding down its 5-year-old litigation campaign. The recording industry’s litigation and lobbying arm told the circuit court that, “The public interest will not be served by broadcasting a single snippet of these proceedings, because doing so places a misleading emphasis on a limited aspect of the judicial process.”

Image: Modernhumorist.com

[Thanks, Wired]

A Harvard law professor has filed a counterclaim in the case of Sony BMG Music Entertainment, et al. v. Joel Tenenbaum.  The counterclaim insists that the suit originally filed against Mr. Tenenbaum was illegal and unconstitutional.

Harvard Law School professor Charles Nesson insists that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is a criminal statute and the application of that law in a civil court is unconstitutional.

It’s about time someone took the RIAA to task.  Their sanctimonious attitude while screwing those least able to afford it is morally unconscionable.  But as long as they fight the changing face of music creation and distribution, they are doomed.  Rather than spend these millions on lawyers, why don’t you spend them on creating an electronic distribution method that works and pays the artist?

Lawyers claim RIAA lawsuits are unconstitutional
Harvard professor says law is criminal statute, cannot be applied in civil cases

by Rebecca Woolington | News reporter
PUBLISHED ON 11/7/08 IN News

As the Recording Industry Association of America continues to file lawsuits against thousands of people, a growing number of lawyers are rising up to fight what they consider illegal tactics of the association.

Harvard Law School professor Charles Nesson filed a counterclaim against the RIAA last week on behalf of Joel Tenenbaum, a Massachusetts man being sued by the association for copyright infringement. The counterclaim alleges that the association’s lawsuits against possible copyright infringers are unconstitutional.

Nesson, who is representing Tenenbaum pro bono, said charges are brought against possible copyright infringers under the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999. The law, Nesson said, is essentially a criminal statute, and it is unconstitutional to apply the law in a civil case, which the RIAA is doing.

Matt C. Sanchez, one of the four students in Nesson’s Internet law class who are helping him with the case, said a distinction exists between damages in a civil case and damages in a criminal case.

"Damages in civil cases are about if you hurt someone, you make them whole," he said. "But the RIAA is using litigation to say ‘if you do this you are going to be punished.’"

According to Nesson, criminal law – not civil law – is about punishment, and the record companies are seeking to punish Tenenbaum.

"The lawsuit is completely criminal in nature," Nesson said. "The damages are completely out of proportion to any actual harm that was caused."

Nnamdi Okike, who is also one of Nesson’s students involved in the case, said when the record companies file suits for copyright infringement, they can chose to seek either actual damages or statutory damages.

In civil cases, Okike said, plaintiffs typically seek actual damages, which is only the dollar amount the infringed product is worth. Statutory damages under copyright law, Okike said, range from $750 to $30,000 per copyrighted work for an inadvertent infringement, and up to $150,000 per copyrighted work for a willful infringement.

If Tenenbaum’s alleged acts are found to be willful, he could face statutory damages of more than $1 million, according to a motion Nesson filed.

Sanchez said because songs are available for 99 cents on iTunes and other legal music downloading sites, the loss per song that record companies face is likely between 10 and 60 cents.

"The amount of damages can go very, very high, to a point where the numbers are very disproportional to the actual damages," Okike said.

Because of the discrepancy between the amount of damages sought and the amount of actual damage suffered, Okike said using the statute in a civil case is unconstitutional according to due process.

"These suits represent an abuse of judicial process," Sanchez said. "The RIAA is going into litigation saying, ‘…We want to scare people, so that no one ever file-shares or illegally downloads anything again.’"

Sanchez said because of the RIAA’s intentions to scare students and other individuals out of illegally downloading, the record companies are not interested in giving individuals a fair trial. Sanchez alleges that the companies are trying to hit Tenenbaum, who is being sued for infringement of seven songs, with a multimillion dollar suit to serve as an example to illegal downloaders everywhere.
Nesson also documented the motivation behind the RIAA’s litigation process in a motion to the court.

"The plaintiffs and the RIAA are seeking to punish (Tenenbaum) beyond any rational measure of the damage he allegedly caused," Nesson wrote in the motion. "They do this, not for the purpose of recovering compensation for actual damage caused by Joel’s individual action, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using computers, and so frightening to parents and teachers of students using computers, that they will somehow reverse the tide of the digital future."

Lory Lybeck, an attorney for the Seattle law firm Lybeck Murphy, said if the civil lawsuit hinges on a criminal offense, the defendants should be allowed constitutional rights of criminals, such as the right to a trial in front of a jury or the right to a court-appointed attorney.

Lybeck was the attorney in last year’s high profile case against the RIAA in which a Portland woman was found innocent of the infringement charges. Lybeck also said he helped five University students who were originally subpoenaed by the RIAA avoid the charges because of what Lybeck referred to as their "obvious innocence."

Okike said many people are forced to settle with the record companies because they are not offered the same benefits that criminal defendants are offered. What is unfortunate, Okike said, is many of these individuals would have a chance to win in court if they could afford to hire attorneys.

Sanchez said the issues being raised boil down to a matter of fairness. "Regardless of the merits of filesharing, a defendant must have a fair trial and a fair penalty," he said.

Sanchez said one of the reasons why defendants could have a chance to win in court is because of the record companies’ inability to prove infringement actually occurred. Sanchez said two types of copyright infringement exist: reproduction and distribution.

Reproduction, Sanchez said, is the act of copying a copyrighted work. Distribution is the act of illegally distributing a copyrighted work to others.
When the record companies are suing because files were available on peer-to-peer networks, they are suing for distribution, Sanchez said. But he also noted that the courts are currently debating whether making a file available is a violation of copyright law.

The discrepancy exists, Sanchez said, because the record companies can only prove if files were made available for others to download the copyrighted work. Given available technology, Sanchez said the record companies cannot prove if someone actually distributed the copyrighted work.

The problem with the "making it available" claim, Lybeck said, is that people can fail to have the file sharing feature on their computer disabled and can be sued as a result. Lybeck explained that such inadvertent file sharing is not a violation of copyright law because the distribution cannot be proven.

Lybeck said that during the past five years, many problems have existed within the RIAA’s litigation processes. Because their process is so sweeping, he said, there is a lot of room for error in their information-gathering techniques.

Lybeck explained that originally, the RIAA subpoenaed the University for information about 22 students, but because of issues such as two students being assigned to one residence hall room, the RIAA changed the subpoena and asked for personal information of 17 students.

Lybeck said he sees Nesson’s work as a positive movement to examine and crack down on the RIAA’s techniques.

Okike said he hopes the work on the Tenenbaum case sheds light on the RIAA’s aggressive and abusive judicial processes.

"We are optimistic and we are looking forward to changing the tide of how record companies go about this," he said.

[Thanks, Oregon Daily Emerald]

In all of the time that RIAA has been intimidating and extorting music down-loaders they have come out ahead in the courtroom twice (by my admittedly imperfect count).  The first time, in Capitol vs. Thomas, the ruling has recently been overturned because the judge, in his ignorance of copyright law, had instructed the jury that making available constituted infringement. Judge Davis has since ordered a new trial.

In the second instance, Maverick v. Harper, the RIAA has been seeking a jury trial upon which they intended to build a case based upon the previously mentioned Capitol vs. Thomas judgement.  But, with the reversal in that case, the RIAA has reversed it’s stance and is seeking the $7,400 judgement.

It seems that Ms. Harper or her lawyers have been keeping up with current events, and the decision by Judge Davis in the Thomas case has prompted them to press for a trial.  The reversal in both parties is understandable by an outside observer.  In the case of Harper, she doesn’t want her judgement to have been based upon flawed legal precedent while the RIAA simply wants to chalk up a win.

Fearing reversal, RIAA opts for the money in Harper case

Posted by Richard Koman @ October 19, 2008 @ 7:36 PM

Ars Technica reports that the RIAA has changed course in the copyright infringement case of a teenage girl who downloaded 37 songs over Kazaa.

The judge in Maverick v. Harper had held that Whitney Harper, 16 at the time of her offenses, was an “innocent infringer” and awarded a mere $200 per song, far less than the statutory minimum of $750 per song.

The RIAA had been fighting this, pressing for a jury trial on the damages issue, but now the RIAA wants judgment for $7,400 while Harper is pressing for a trial. It seems the fortunes of the parties have really shifted.

Here’s why: The judge’s finding for the RIAA was based on the “making available” theory – the idea that having files in Kazaa’s shared folder (which the software does by default but teenagers presumably do not realize this) is sufficient grounds to find that someone distributed copyright material.

This theory has been thoroughly trashed in subsequent court decisions, most notably in Capitol v. Thomas, where Judge Michael Davis dismissed a jury verdict in favor of the RIAA because it was “manifest error” to instruct the jury that making available constituted infringement. Judge Davis ordered a new trial.

Now the RIAA is jumping mad over Harper’s attempts to have the judge reconsider the “making available” issue, calling her efforts “vexatious.” Ars cites Harper’s motion for the trial:

[I]in this case we have this single case, one of tens of thousands of lawsuits filed as a part of a massive campaign to preserve a business model currently dominant in the music. This Court is aware that this case is not about the actions of Whitney Harper, a young lady who was 14 to 16 years old at the time of alleged infringement. It is instead about an 18 billion dollar industry that was once on a rising trend, now facing its comeuppance by rapidly evolving technology and eroding morals.

If there is a trial, it will be in mid-November.

[Thanks, ZDNet]

The RIAA has been targeting a vast assortment of individuals for copyright infringement.  From handicapped single Moms to 15 year-old girls through what seems like half the college students in the U.S. the RIAA has tried to leave no stone unturned in its pitiful attempts to extort money from those least able to defend themselves.

Apparently John McCain and the McCain campaign are guilty of breaking some of the same laws as those people as well as breaking the laws that got Muxtape shut down!  Playing songs at their hate-fests rallies which they have no legal right or license to play.

There is a growing list of artists who have stood up and complained about McCain’s copyright infringement that include Heart, Van Halen, John Cougar Mellencamp, and Jackson Browne.  Jackson Browne has gone so far as to file suit against both John McCain himself and his campaign organization.

I’ve been scanning the headlines and listening to the news radio, but I haven’t heard anything about the RIAA filing suit against McCain & company, but it’s only a matter of time, right?  Right??

McCain’s Musical Copyright Infringement Continues

Posted on October 10th, 2008 by ZP Heller

It’s getting to the point where the only songs the McCain campaign will be able to use at rallies are the ones written specifically for them, like John Rich’s pseudo-country trifle “Raisin’ McCain.”  A couple of days ago, the Foo Fighters issued a statement telling McCain to stop using their song, “My Hero.”

The band said in a statement:

“The saddest thing about this is that `My Hero’ was written as a celebration of the common man and his extraordinary potential.  To have it appropriated without our knowledge and used in a manner that perverts the original sentiment of the lyric just tarnishes the song.”

The Foo Fighters join a slew of artists who have complained of McCain’s copyright infringement.  Others who have told McCain to quit usurping their music for political gains include Van Halen, John Mellencamp, Heart (sorry Sarah “Barracuda”), Frankie Valli, the owners of the theme song from “Rocky,” and Jackson Browne, who even filed a suit against the campaign.

Clearly, fewer and fewer artists want to be associated in any way with McCain.  But what’s particularly ironic in the case of the Foo Fighters is that McCain couldn’t be further from the ordinary hero mentioned in the song.  He continues to put himself before the country, which we saw most recently with his closing remarks at the second debate (as compared to Barack Obama’s) and his theatrics with the economic crisis.  He’s desperate to prove himself as the common man who rises to the occasion, but the reality is that he has NEVER been the common man and he has RARELY IF EVER risen to the occasion.

If you want to know what I mean, read Tim Dickinson’s scathing Rolling Stone piece on McCain, “Make-Believe Maverick.” Use that evidence, race it around.  There goes my hero, he’s ordinary.

[Thanks, The REAL McCain]

With increasing frequency, colleges and universities around the country are telling the RIAA to find other ways to identify file sharing students.  In the past the colleges have collaborated with the RIAA (much like the French collaborated with the Nazis) when the burden was light.

But as the RIAA has increased their demands for information regarding file sharing students and significantly augmented their number of ‘pre-litigation’ letters, colleges have found that their labor has been forced to increase in order to keep up.

Hiring more full time employees to deal with hundreds and sometime thousands of RIAA requests, added expenditures for software and hardware, it’s been hard trying to keep up with the unreasonable demands for victims.  And finally the schools are saying no.

The University of Wisconsin, the University of Kansas, and Oregon State university have all recently denied requests for information by the RIAA.  As Brian Rust, marketing manager of the University of Wisconsin at Madison’s Department of Information Technology, said "This is between the recording industry and the people who may be violating their copyrights."

If this trend by colleges continues, the RIAA will have to find yet another litigious way of making money rather than trying to adapt to a changing market.

Colleges push back against RIAA’s methods

Many universities say helping the recording industry track down students is taking too much time and too many resources
By Dennis Carter, Assistant Editor, eSchool News

Administrators and IT chiefs at public universities nationwide say the recording industry’s search for students accused of online piracy is cutting into their faculty’s work day. In recent months, some universities have refused to forward "pre-litigation" letters to students offering them a settlement to avoid further legal action from the Recording Industry Association of America (RIAA).

Forwarding these documents is not a legal responsibility of the college, administrators say, and tracking down students who might have downloaded music or movies illegally is time-consuming, forcing IT specialists to comb through an enormous university network, pinpoint specific illegal actions, and find students.

"This is between the recording industry and the people who may be violating their copyrights," said Brian Rust, marketing manager of the University of Wisconsin at Madison’s Department of Information Technology, which has seen a steady increase of subpoenas and "cease-and-desist" notices forwarded from RIAA officials in recent years. "But public institutions are an easy target. We’re very transparent about access to our network."

Higher education has been a primary ally in the recording industry’s fight against online piracy, but over the last year, university officials say tension has mounted.

Filtering or monitoring technologies designed to spot incidents of illegal downloads have forced many colleges to assign full-time employees the job of tracking down the IP addresses of network users who might have violated copyright laws, find out if those users are still enrolled in the university, and make sure the alleged violators receive notice that the RIAA is looking for them. The software has been installed at campuses across the country after the recording industry’s intensive lobbying effort for better network monitoring.

Denise Stephens, vice provost for information services and chief information officer at the University of Kansas, said the school decided to stop forwarding pre-litigation papers to students because the practice did not fit the mission of the college.

"We really had to make a decision philosophically about what our role was in this whole issue," said Stephens, who also has seen a rise in RIAA "cease-and-desist" notices. "We’d be acting as a go-between for an external party seeking to get information about our students. … We decided that was not our role."

Stephens insisted that Kansas’ new policy was not intended to pick a fight with the RIAA. She stressed that the university maintains "a zero-tolerance [file-sharing] policy," stripping students and faculty of their network access privileges in they are found guilty of internet piracy.

"This is not an effort to thumb our nose at anyone," she said.

The RIAA did not return messages left by eSchool News. In courtroom arguments and media reports over the last year, however, the group has argued that compliance with subpoenas has not been a burden to universities in the past, so it should not be considered a burden now. But higher-education officials insist compliance with the RIAA is requiring too much of their time as the organization’s anti-piracy campaign has become more rigorous.

[Thanks, eSchool News]

The RIAA has suffered some humiliation recently. Their crack investigators are being hounded as unlicensed charlatans in many states, Universities everywhere are regretting past collaborations, and the courts are getting a feel for the law and starting to rule against them.

The most recent incident involves their wrongful case against the disabled single mother, Tanya Andersen. Four years ago the RIAA and MediaSentry started an ill-advised piracy case against Tanya and her then 8-year-old daughter. After attempting to browbeat her into paying for acts of piracy that she never committed, Tanya got a lawyer.

The end results after an RIAA conducted ‘forensic’ analysis of the Anderson’s computer was that the RIAA dropped the case like that proverbial hot potato. And all that remains was a bad taste in the RIAAs mouth and a bill for the Anserson’s lawyer which totaled 470 billable hours.

This week was payday for the lawyers who successfully defended Tanya and her daughter, after much legal posturing the RIAA has finally paid their bill. Seattle based Lory Lybeck has received the 107,951 dollars and some odd cents from the RIAA.

Tanya and Lory continue there RICO suit against the RIAA.

Single mum wins $107, 951 from RIAA

And that’s just her legal fees

Written by Iain Thomson in San Francisco

Disabled single mother Tanya Andersen has won over one hundred thousand dollars in legal fees after fighting the false accusation that she illegally shared music files.

Andersen’s lawyers were awarded costs and interest by a US Federal Court. The RIAA had reportedly offered $30,000, then $60,000 before being ordered to settle the full amount.

Four years ago the Recording Industry Association of America alleged that she and her eight year old daughter were downloading gangster rap songs to their home computer. She offered to let investigators examine her PC but they declined and said they would prosecute unless paid several thousand dollars.

“You’re going to have to pay us, or this won’t go away,” she claims she was told, according to an interview in Business Week.

Eventually she was served with papers and the court case began. She was defended on a no win no fee basis by Seattle lawyer Lory Lybeck.

“I said to myself, either she’s a good actor and a good liar, or what they have done to her is really crummy,” he said.

During the case Andersen submitted her PC to the music industry legal team for analysis. After the analysis was complete the RIAA refused to release the report, but were forced to by the court. It stated that there was no evidence of piracy.

The court gave the RIAA until June 1st last year to produce evidence to back up its case. When the deadline came the RIAA dropped the case and promised no more action.

However, Andersen was so incensed that she then launched a legal case of her own against the record companies and the investigators they use.

“The RIAA is fighting very hard to make sure that [Andersen's case] never reaches a jury,” says Heidi Li Feldman, a professor at Georgetown University’s law school.

“The minute this reaches a jury, they will have to think about settling.”

[Thanks, VNUNet]

There is a lot of attention focused this past week on the RIAA and their continued crusade against music piracy.  Most of this attention has been negative in nature and this most recent example is no different.

It seems that Central Michigan University has filed a a complaint with the Michigan Department of Labor and Economic Growth (DLEG), accusing MediaSentry (the RIAA’s investigators of record) of conducting investigations without a Private Investigator license.  And this comes in MediaSentry’s home state!

I can understand if they neglected to ensure that they complied with Oregon’s laws, or Massachusetts’ laws, or maybe one of the other numerous venues in which they are being sued, but to neglect to comply with the laws of their home state seems foolish.

University wants cease-and-desist order for MediaSentry

By Eric Bangeman | Published: August 05, 2008 – 09:30PM CT

Allegations of conducting unlicensed investigations continue to dog MediaSentry, the company hired by the RIAA to seek out and download music over P2P networks as part of the group’s legal campaign. Mary Roy, the Assistant General Counsel of Central Michigan University, has filed a complaint with the Michigan Department of Labor and Economic Growth (DLEG), accusing MediaSentry of conducting investigations without a Private Investigator license.

The complaint (PDF) was filed in mid-July and was just uncovered by attorney Ray Beckerman on his blog. In it, MediaSentry is accused of continuing its "unlicensed and illegal actions" in Michigan even after being informed by the DLEG in February 2008 that its activities could be in violation of state law.

Under Michigan state law, a private investigator is defined as an entity that investigates "the identity, habits, conduct, business, occupation,… activity,… transactions, acts,… or character of a person" or secures "evidence to be used before a court."

CMU points out in its complaint that the fruit of MediaSentry’s labor is exhibits attached to RIAA complaints, and CMU lists eight Doe cases involving 99 suspected P2P users filed in Michigan federal courts between May 3, 2007 and May 28, 2008. In each of the lawsuits, the RIAA referred to MediaSentry as a "third-party investigator" that gathers evidence of copyright infringement.

"All of the above-noted sworn statements regarding the activities of MediaSentry would clearly establish that its activities fall within the scope of the investigative activities regulated by the PDLA [Private Detective License Act]," reads the complaint. "Nevertheless, MediaSentry has ignored any suggestion by the DLEG that it secure a license to continue its investigative activities within the state of Michigan."

The RIAA has consistently held that MediaSentry is not an "investigator" according to state law. All the company does, according to the RIAA, is harvest data from publicly-available sources (e.g., P2P networks). Even so, MediaSentry’s corporate parent SafeNet decided to give the MediaSentry web site an "overdue" redesign this past February, removing all references to litigation and prosecution.

Since the issue of MediaSentry’s status as a private investigator was first raised, the company has been given a cease-and-desist order by the Massachusetts State Police, while a handful of P2P defendants have argued that the evidence collected by the company should be barred. To our knowledge, there has yet to be a ruling on the issue of the admissibility of evidence collected by MediaSentry, but with a North Carolina judge deciding to look at MediaSentry’s status as a private investigator in that state as part of a "fresh look" at the RIAA’s Doe lawsuits, that may be about to change.

[Thanks, Ars Technica]

The proposed Anti-Counterfeiting Trade Agreement hopes to crackdown on pirating of music and DVDs and the counterfeit labeling of goods by enacting draconian laws in the member states.  The Australian government  seems to be looking at a plan to start searching MP3 players at airport security checkpoints. The reason?  To seek out and destroy illegally pirated music.

I was under the impression that having to submit to the TSA and two hour wait times at the airport was to protect us from weapons or explosives or even, (god forbid), crazed terrorists with a Google map printout and some iconic landmark that has offended them in some way.  But to even consider using the already incompetent and inept TSA security rabble to search through my electronic devices seems like a guaranteed plan to add hours to my my airport ‘check-in’ times.

And how are these otherwise unemployable high school graduates going to determine if any one particular song has been pirated?  What criteria will that use to cull the legal from the illegal?

Australian Government Proposes Checking MP3 Players at Airports
By Brian X. Chen – July 30, 2008 | 6:23:36 PM

Walking through the airport-security checkpoint could get even more annoying if guards start checking travelers’ MP3 players for pirated music.

News Digital Media sheds light on a leaked document containing the Australian government’s plans to search music devices in airports in the effort to combat illegal-music downloads. The proposal is also being considered in an international treaty, which includes the United States. If the proposal goes through, anybody caught with illegal music would be subject to fines or even jail time.

Before you freak out and toss your iPod into a lake, keep in mind this is just a proposal. It would need to be thoroughly discussed and agreed upon before it would be implemented. I can’t imagine this even working logistically: Airports are crowded (and inefficient) enough, and it would take forever to scan someone’s MP3 playlist. And how would they determine which songs are pirated anyway?

Some reports have speculated that the RIAA has a hand in this proposal, which wouldn’t be a surprise. Scanning our service providers isn’t enough; now they want airport employees to dig into our pockets. Classy.

[Thanks, Wired]

Ray Beckerman, well known for his selfless defense of individuals sued by the Music And Film Industry Association of America otherwise known as the MAFIAA (doesn’t that seem fitting??), has published a paper in the American Bar Association’s Judge’s Journal that describes how the RIAA intimidates pursues it’s questionable legal actions against supposed file sharers.

Intended to educate, Beckerman discusses the legal and technical challenges in dealing with this type of suit.  I think that there are going to be tougher venues in the very near future where the RIAA will not be allowed the same kind of free rein and classic strong-arm tactics it has become vilified for in the past.

Judges warned about RIAA antics
The jaws that bite the teeth that gnash

By Nick Farrell: Wednesday, 30 July 2008, 8:33 AM

AMERICA’S TOP JUDGES have been briefed on the antics of the Recording Industry Association of America.

New York attorney Ray Beckerman has written a paper for the American Bar Association’s Judge’s Journal’s bumper summer issue.

Beckerman, who defends people sued by the MAFIAA, told judges about the finer points of case law relating to the wave of P2P cases.

Called Large Recording Companies v The Defenseless, the article explains RIAA lawyers’ method of working, which he thinks are getting dodgier as time wears on.

The bulk of the article looks at legal matters concerning venue, jurisdiction, dismissal, discovery, confidentiality, legal fees and default judgments.

One of the central issues which judges have faced in deciding on P2P cases are the huge amounts of case law and a lack of knowledge of the technical problems.

If the robed but not wigged ones read the missive they are certainly going to get a perspective that the music industry would not like.

L’Inq
Beckermanlegal.com

That link above leads to a copy of the article.

[Thanks, The Inquirer]

The RIAA has come up with a new, improved sliding price scale that they’ll be charging students accused of P2P file sharing.  If the student engages the RIAA legal team in any way, the cost of the settlement jumps from $3000 to $7000 or even $8000.

It sounds to me like the RIAA is trying to discourage any show of backbone on the part of the college students.  Is the reason that the RIAA feels the need to subjugate people who haven’t been proven guilty in a court of law?  Grind some poor college student under the heel of their jackboots?

It’s all posing on the part of the RIAA.  With some important legal cases and judgements going against them recently, they are desperate to show ‘wins’ in some arena, and the college campus looks that that venue.

I think that their maniacal persecution of poor college students who can’t defend themselves against the huge, well funded machine is sort of like an adult who kicks the poop out of a 5 year old.  Shame on you RIAA (and that goes for your inbred cousin the MPAA as well).

RIAA doubles settlement cost for students fighting subpoenas

By Nate Anderson | Published: June 11, 2008 – 11:05PM CT

Challenging RIAA subpoenas can be costly, and not just because college kids have to dig deep into the sock drawer to pay lawyers of their own. Ars has learned that the RIAA’s legal campaign against students is now built on escalating penalties; if you force the RIAA legal team into action, then end up settling, you could end up paying more than that initial $3,000. A lot more.

When college students are fingered by the RIAA’s "pre-litigation letters," most schools pass the letters along and let students make their own decision about challenging the issue in court or settling for around $3,000. That’s not cheap, but the RIAA has recently been making it far more expensive for students who try to fight. If a student doesn’t respond to a pre-litigation letter and the RIAA has to go to court to get the name, the settlement fees goes up to about $4,000. And if a student decides to challenge the RIAA’s subpoena or otherwise delay a trial, the price jumps dramatically to $7,000 or $8,000.

Of quashing and consequences

We spoke with a legal consultant for the RIAA who handles much of this litigation, and he explained that the music trade group has always seen legal challenges to its tactics. In the last year, though, RIAA lawyers have seen a serious uptick in the number of students who have attempted to quash subpoenas that would allow them to learn the students’ identities. In some cases, this takes the form of filing a motion to quash, then waiting for the RIAA to file a counter-motion, then filling a motion to suppress the counter-motion, then waiting for the RIAA to respond, then… well, you get the idea.

When you’re paying the RIAA’s rates for legal help, this sort of thing costs serious money, and it leads to delay. Over the last six months, the RIAA has begun a concerted campaign to limit what it sees as frivolous litigation of this kind, as it says no defendant in the history of the RIAA enforcement campaign has successfully battled such a subpoena (although it should be pointed out that there are some motions to quash that are still pending).

In order to strike fear into the hearts of students everywhere, the RIAA has adopted a sort of anti-Wal-Mart model where it passes the costs on to you. In fact, the RIAA tells us that it is actually acting in everyone’s best interests through this escalating costs approach. Because most students end up settling anyway, fighting the subpoenas generally just raises the amount of the fee they end up paying. It also costs them more in legal fees, it ties up the courts, and the whole process appears to bore RIAA lawyers to tears.

The legal consultant tells Ars that this has nothing to do with bullying people into staying silent and paying up. "We have no qualms with individuals exercising their rights to litigate real issues," he says. "[But] the issues being raised in these motions to quash are issues that have been resolved time and time again in the RIAA’s favor."

Students sometimes think they can simply fight the subpoena and the case as hard as humanly possible, then simply drop it and settle down the line. The RIAA wants to get the word out, though: those choices have consequences that can be measured in beer money. Lots and lots of beer money.

Meet the scapegoats

We weren’t surprised to find that the Electronic Frontier Foundation has a different perspective, but the gulf between the two sides is positively Grand Canyon-like in size. I spoke to EFF attorney Corynne McSherry, who argued that the copyright infringement claims at the basis of these lawsuits aren’t always as strong as the RIAA would have people believe.

McSherry points to recent court decisions that cast doubt on the idea that simply making a file available is the same as actually distributing it to the public, and she points out that the MPAA has been wildly misguided in its own analysis of collegiate file-swapping. Given these issues and more recent questions about the limits of automated P2P enforcement, McSherry argues that it is "especially inappropriate and unfortunate" to punish people for trying to defend themselves in court. The "judicial process is important, and it’s particularly important now when there seems to be real questions for the factual basis for these claims," she says.

And taking a bigger-picture look at the entire issue, McSherry says that there’s "no reason to believe that any of this is stopping file-sharing or helping the RIAA or the artists that it represents to get paid."

Colleges are simply "scapegoated because they’re easy targets," she says, pointing out that schools do far more to educate their network users about copyright, fair use, and file-swapping than any commercial ISPs in the US. The schools are easier to pursue than individuals because they are uniquely vulnerable to government pressure (in the form of grants and aid money), while at the same time they possess unique punishment powers that commercial ISPs lack.

[Thanks, ars technica]

Today, May 16, 2008 will likely be the RIAA’s Pearl Harbor. On this day, (a day that will live in infamy for the cruelly manhandled recipients of RIAA extortion letters), a U.S. District Court Judge, Michael Davis noted in a brief that he gave erroneous instructions to the jury and might require a re-trial. Also, the lawyers in the now famous Tanya Andersen case have been awarded $107,833 to cover their legal fees.

What sweet justice against an organization that lies, cheats, and extorts money from those least able to afford it.

Judge Says First-Ever RIAA Piracy Trial May Need a Do-Over
By David Kravets
May 15, 2008 | 4:43:55 PM

The federal judge who oversaw the Recording Industry Association of America’s lawsuit against Jammie Thomas said Thursday he might have erred with one of his instructions to the jury, and is considering granting a new trial.

In response, an RIAA spokeswoman said, “if we have to re-try the case, we will do so without hesitation.”

U.S. District Court Judge Michael Davis, who presided over the nation’s only file sharing case to go to a jury, noted in a brief order (.pdf) Thursday that, under federal case law, infringing a copyright likely requires actual dissemination of the pirated content, not merely making copyrighted works available.

In October, Davis instructed jurors that infringement occurs the moment a Kazaa user makes copyrighted music available to others from their share folder — an instruction he now regards as a “manifest error of the law.”

The Duluth, Minnesota, jury found Thomas liable for infringement and awarded the music industry plaintiffs $222,000 for 24 songs.

(ed – read the rest of this article at WIRED)

RIAA ordered to shell out $100k for P2P witch hunt
Pigopolists pay for 471 hours
By Austin Modine

Published Thursday 15th May 2008 21:13 GM

How many work hours does it take to fight off a false accusation of copyright infringement from the Recording Ass. of America?

According to the federal magistrate judge overseeing the case of Tanya Andersen, Oregon’s famous disabled single mother-turned anti-RIAA crusader, about 470.8 hours from her attorneys alone.

Fortunately for Andersen’s financial future, judge John Acosta has ruled that the RIAA will pick up the tab for its unsuccessful lawsuit against her. All totaled, Andersen’s counsel have been ordered to receive $107,833 (£55,395) for their work.

(ed – follow this link to read the rest at The Register)

The RIAA has contended that the simple act of making music files available to file sharing programs like KaZaA constitutes infringement. 

In fact, in this particular case, Atlantic v. Howell, Judge Neil V. Wake had originally granted the RIAA a summary judgement against the Howell’s.  This judgement was based upon the premise that intent was obvious.

The Howell’s then appealed saying that they really did not have any idea how Kazaa worked and that they intended to share only "pornography and free to the public software, e-books."  Eventually a judge overturned this original ruling and stated that the case would have to go to trial.

I am by no means a student of the law, but isn’t this scenario kind of silly.  The fact that I have beer in the house shouldn’t get me arrested because my 18 year-old MIGHT get drunk while I’m at work.

Here’s the full article from ars technica:

Judge deals another blow to RIAA’s making available theory

By Eric Bangeman | Published: April 29, 2008 – 03:05PM CT

One of the pillars of the RIAA’s legal campaign has been its assertion that making a file available for download equates to copyright infringement under the copyright act. There have only been a couple of decisions addressing the question so far. One that came down today in Atlantic v. Howell is the biggest rejection yet to the RIAA’s "making available equals infringement" argument, as a federal judge has denied the labels’ motion for summary judgment, setting the stage for a trial later this year.

Atlantic v. Howell is unusual in that the husband and wife defendants are representing themselves. But the couple has some knowledgeable allies on their side—the EFF submitted an amicus brief on their behalf after the RIAA moved for a summary judgment.

The RIAA sued the Howells in 2006 for copyright infringement, and the couple responded by claiming that KaZaA was "not set up to share" and that the songs listed in the complaint were for "private use" and "for transfer to portable devices, that is legal for ‘fair use.’" In a deposition, Jeffrey Howell later admitted to installing KaZaA on his PC, but said that the only files that should have been in the shared folder were "pornography and free to the public software, e-books." (Apparently, the porn was of the amateur, not-copyrighted variety.)

Their defense got off to a rocky start, as Judge Neil V. Wake initially granted the RIAA a summary judgment and awarded the labels $40,850 in statutory damages and court costs. The Howells appealed, citing their lack of knowledge about how KaZaA works, specifically the fact that their "personal files" were shared on the network, and the judge subsequently vacated the summary judgment. 

In its brief, the EFF argued strenuously against the RIAA’s position that making a file available on a P2P network is distribution. Instead, the labels must show that distribution actually took place in order to prove infringement. The only distribution that the labels can prove wasn’t unauthorized, says the EFF, because it was done by MediaSentry on behalf of the RIAA.

Here’s an interesting factoid…  Rather than paying the recording artist their due the RIAA spent 2.8 million dollars last year lobbying in Washington for stricter copyright laws and and overall better legal climate.  Without that climate they certainly couldn’t have extorted more than $200,000 dollars from that woman who downloaded 24 songs off of the interwebs.  And to think that they did that with the help of a judge.  Kind of makes you lose faith in our system of justice.

RIAA spent $2.8 mil on lobbying in ‘07

Associated Press
April 17, 2008

The recording industry’s trade group spent nearly $2.8 million pumping up the volume on its lobbying on Capitol Hill last year.

The Washington-based Recording Industry Association of America lobbied on a bill to limit fees charged to Internet radio stations for music broadcasts and on efforts to limit copyright violations, especially overseas.

The trade group spent $2.1 million lobbying in the second half of 2007, according to a form posted online Feb. 12 by the Senate’s public records office. It spent $659,000 on lobbying in the first half of the year.

Lobbyists are required to disclose activities that could influence members of the executive and legislative branches, under a federal law enacted in 1995.

[Thanks, Hollywood Reporter]

In pursuit of their mission to suck the lifeblood and very souls from the musicians who provide the real product in the music industry, the RIAA is seeking to lower the royalty rate that the artist gets for each downloaded track from its current 4.5 cents per song to about 2.5 cents a song.

4.5 cents, an artist who works for Sony, BMG or Warner (to name just a few), gets 4.5 cents from every legal download.  The publisher demands an equal fee for all that they do.

I can only imagine that they are running out of cash after all of the recent frivolous lawsuits.  I’m sure that the difference will line their pockets.  Much like the sums that they have collected, none of that money has reached the artists yet.  It’s just blatant misappropriation of the funds.

Sides chosen in royalty tussle

By Brooks Boliek

Jan 29, 2008

WASHINGTON — Music publishers, the record labels and digital music distribution outlets began a three-way legal wrestling match Monday over just how much songwriters and the publishing houses should get paid for digitally delivered music.

The case before a panel of copyright judges is different from the usual squabbles over money that pit the major record labels against new-media companies because it also features a family fight between the music publishers and songwriters and the rest of the music industry. (more after the jump)

[Thanks, The Hollywood Reporter]

Other articles about the same thieves:

• The Online Mistakes Of The Music Business
• Michigan says MediaSentry lacks necessary PI license
• RIAA tells Ars: We’re not hypocrites

In 1984 the Supreme Court of the United States determined in a case between Universal City Studios and Walt Disney Company vs. Sony what constituted ‘Fair Use’ for video and VCRs.  As time has gone by, the intent of the law has been modified to include many aspects of copying media.

As the MP3 player proliferated across the landscape, starting with the venerable Rio PMP300 and expanding to iPods and all of their ilk, the legal system has upheld the right of the consumer to copy, or rip, their CD collection to their computer and then copy those audio files onto their MP3 player of choice.

John Dvorak summarizes:

RIAA Goes After "Personal Use" Doctrine

by John C. Dvorak

We’ve all read about the Recording Industry Association of America (RIAA), its recently acquired taste for blood, and its quest to sue every student and grandma in the country for downloading MP3s. After a few years of constant subpoenas and news coverage, it finally seemed as if this effort was petering out. But now the RIAA has a new angle: Sue people who rip tracks from purchased CDs onto their computers. The implications are far-reaching and dangerous.

Suing customers for ripping CDs is an attack against fair use that, if successful, would reverse legal precedents and give some momentum to the slow effort to eliminate all consumer recording devices. This would include VCRs, CD burners, DVD burners, DVRs, and even copying machines.

[Thanks, PCMag]

More reading:

1. Download Uproar: Record Industry Goes After Personal Use
2. According to RIAA, Ripping Your CDs is Illegal

It looks like the RIAA is losing favor with at least one of its corporate sponsors.  Recently EMI was purchased by the private equity firm Terra Firma and the new owners are finalizing plans to reduce its financial help to both the Recording Industry Association of America (RIAA) and the International Federation of the Phonographic Industry (IFPI).

This type of corporate sponsorship is the only reason that the RIAA can stay in business and terrorize innocent individuals and families with frivolous lawsuits.  And it’s time that stopped.

EMI (Terra Firma) is referring to the pullback of finances as a cost cutting measure in the face of plummeting CD sales, but a quote from TechDirt might hold even more truth

If EMI lowers its funding of the RIAA and the IFPI it’s basically an (all too late) admission, that the strategies of those two organizations are not helping EMI achieve its long term goals.

The bigger issue at hand really is the ability of the music industry to cater to the needs of the music buyer.  iTunes comes very close in that you can easily find the music you want and purchase it a la carte.  The downside to that is the music is crippled in such a way that I can only use it on one portable music device, an iPod.

Maybe the real answer lies in the new MP3 store over at Amazon.  You can purchase a la carte and listen to that music on any computer you own, an iPod if you own one and any other brand of digital music player including regular phones and the new iPhone.

As the RIAA continues to roll itself into a smaller and less impressive organization they keep making silly gestures that only reinforce my ’Oh-So-Low’ opinion of them. It seems that they have teamed up with some other backwards thinkers and created "The Copyright Alliance". Well, they had a little fete’ in DC this week that was sadly under-attended, even by scheduled speakers!

The good news is that Isaac Hayes, ex-voice of Chef and ex-singer, was able to get a little gig signing autographs at the event. With his career spiraling out of control Mr. Hayes probably relies on the nickels and dimes he gets from his album sales as well as these little opportunities to be trotted out by ’The Man’ and displayed as a ’happy’ RIAA client. But, I digress.

techdirt.com has a nice article that has lots and lots of links to even more RIAA and TCA fun-anigans.

RIAA Still Pretending It Represents Musicians

from the feed-a-musician,-support-those-who-ditch-the-RIAA dept

The somewhat redundant new copyright lobbying organization, The Copyright Alliance (who still doesn’t seem to actually understand copyright) held a little dog and pony show in Washington DC last week. It didn’t sound all that well attended from the News.com description, and even copyright’s best friend, Rep. Howard Berman skipped the show, despite being a scheduled speaker. Perhaps even Berman has noticed the shifting tide. However, other than a sad display of solidarity, perhaps the most ridiculous statement on the event came from the RIAA, who hung up a t-shirt saying "Feed a musician. Download legally." That suggests that the RIAA still wants people to believe it represents the best interests of musicians. Such a concept becomes more laughable every day, as musicians seem to be shoving each other aside to bail out on the record labels to take their chances making money without them. The RIAA has never represented the interests of musicians, and it’s sad that so many politicians act as if it does. The RIAA has always represented the interests of the recording industry — whose own interests have often involved treating musicians terribly. So if you want to feed a musician, you’re better off not paying money to the RIAA — but figuring out ways to pay for things where the money actually goes back to the musician.

[Thanks, techdirt]

A jury of her peers has found that the woman accused of downloading and sharing copywrited material across the internet is guilty and has ordered her to pay $220,000 in restitution.

This verdict was met with shocked disbelief.  As one lawyer put it, “A verdict of $222,000 for infringement of 24 song files worth a total of $23.76?” he asked. “It is an outrage, and I hope it is a wake-up call to the world that we all need to start supporting the defendants in these cases.”  This is the sentiment of New York lawyer Ray Beckerman; writing in the Recording Industry vs The People blog,  he called the verdict “one of the most irrational things I have ever seen in my life in the law.”

Jury Orders Woman to Pay $222,000 for Illegal Music Sharing

A Minneapolis woman has been convicted of illegally downloading and sharing copyrighted music over a peer-to-peer network.

Jaikumar Vijayan, Computerworld
Friday, October 05, 2007 10:00 AM PDT

A federal jury in Duluth, Minn., on Thursday ordered a Minneapolis woman to pay US$220,000 to six music companies for illegally downloading and sharing copyrighted music over a peer-to-peer network.

The 12-person jury said Jammie Thomas must pay $9,250 for each of the 24 songs that were the focus of the case. In their complaint, the six music companies that sued her had claimed that Thomas had illegally shared a total of 1,702 songs over the Kazaa file-sharing network, but they chose to focus on a representative list of 24 songs.