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EFF Jumps in Against RIAA for Copyright Misuse

Posted by Zonk on Tue Apr 10, 2007 04:20 PM
from the big-guns-call-for-bigger-guns dept.
NewYorkCountryLawyer writes "Arguing that the RIAA and big record labels may be misusing their copyrights, the Electronic Frontier Foundation has jumped in on the defendant's side in a White Plains, New York, court conflict. The case is Lava v. Amurao, and the EFF will be defending Mr. Amurao's right to counterclaim for copyright misuse. EFF argued that the RIAA, by deliberately bringing meritless cases against innocent people based on theories of 'secondary liability', are abusing their copyrights. In its amicus brief, EFF also decried (just as when it joined the ACLU, Public Citizen, and others on the side of Debbie Foster in Capitol v. Foster) the RIAA's 'driftnet' litigation strategy. They argue that the declaratory judgment remedy must also be made available to defendants, in view of the RIAA's habit of dropping the meritless cases it started but can't finish."
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[+] Entertainment: ACLU, EFF, & Others Fight RIAA for Debbie Foster 298 comments
NewYorkCountryLawyer writes "In a landmark legal document, the Electronic Frontier Foundation, the American Civil Liberties Union, Public Citizen, the ACLU of Oklahoma Foundation, and the American Association of Law Libraries have submitted an amicus curiae brief in support of the motion for attorneys fees that has been made by Deborah Foster in Capitol Records v. Debbie Foster, in federal court in Oklahoma. This brief is mandatory reading for every person who is interested in the RIAA litigation campaign against consumers."
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  • Hm (Score:3, Funny)

    by UPZ (947916) on Tuesday April 10 2007, @04:23PM (#18682151)
    Better late than never
    • Re:Hm (Score:5, Interesting)

      by UnknowingFool (672806) on Tuesday April 10 2007, @04:44PM (#18682477)

      Well, they had to give the RIAA enough rope to hang themselves with first. If the RIAA did only once or twice, the RIAA could say it was a simple mistake and/or blame it on the lawyer. With many cases in many states, it establishes a pattern. They don't do their homework. They sue people without cause. They do it often.

      • Re:Hm (Score:5, Insightful)

        by Ungrounded Lightning (62228) on Tuesday April 10 2007, @05:08PM (#18682771) Journal
        If the RIAA did only once or twice, the RIAA could say it was a simple mistake and/or blame it on the lawyer. With many cases in many states, it establishes a pattern. They don't do their homework. They sue people without cause. They do it often.

        More importantly:
          - They continue to initiate new suits doing the same thing after it has been established that they're doing things wrong, and
          - they admitted in public that they knew they were hurting innocents and that they considered this collateral damage legitimate.

        I suspect that these were the last two ducklings that had to fall in line. Once they were in position the EFF could fire their shot the next time a case got to the stage that exposed the target.

        Danger danger, Will Robinson! Mixed metaphors off the starboard bow!
        • Re:Hm (Score:5, Funny)

          by Matt Perry (793115) on Tuesday April 10 2007, @06:54PM (#18683821)

          I suspect that these were the last two ducklings that had to fall in line. Once they were in position the EFF could fire their shot the next time a case got to the stage that exposed the target.
          If we can hit that bulls-eye, the rest of the dominoes will fall like a house of cards. Checkmate! [1] [gotfuturama.com]
            • Re: (Score:3, Informative)

              And last I checked, nobody, not even Congress has any love for the RIAA. They get complaints by the hundreds or thousands I bet - each and every single Congress Member - about the RIAA.

              All of which are helpfully read by some unpaid staffer and promptly placed in the "circular file."

              Meanwhile, those members of Congress do seem to be listening to the entertainment companies that sign the donation checks -- or did you forget about all the Senators and Representatives who signed on to the Sonny Bono Copyright T [wikipedia.org]
  • Unclean Hands (Score:5, Insightful)

    by Suzumushi (907838) on Tuesday April 10 2007, @04:29PM (#18682251)
    IANAL, but Copyright Misuse is related to Unclean Hands if I'm not mistaken, and the RIAA/MPAA's pursuit of legitimate non-law enforcement"pre-texting" [wikipedia.org] is about as unclean as it gets, not to mention this "drift-net" and "extortion" strategy.

    Wonderful letter, but now lets hope the judge thinks so too.

    • Re:Unclean Hands (Score:4, Interesting)

      by Wylfing (144940) <.brian. .at. .wylfing.net.> on Tuesday April 10 2007, @04:39PM (#18682401) Homepage Journal

      That is a beautiful thought, but it is extremely unlikely to happen. The labels have already been widely accused and convicted of behavior that should have resulted in an injunction against their copyrights (e.g., collusion to fix prices). I doubt anything will come of it now, just as nothing came of it then.

      • Re:Unclean Hands (Score:4, Insightful)

        by Plekto (1018050) on Tuesday April 10 2007, @04:45PM (#18682497)
        But the RIAA *can* lose its ability to enforce the copyrights at all. The original copyrights are intact - just the industry wold have to find other means/another method to do it. And of course, it would invalidate all of the RIAA notices in the music you bought to date. Now, the music still is copyrighted, so copying it illegally is still as wrong as it ever was - but the companies would have to come after you individually - at least until they get a new method in place.

        I can definitely see a judge thinking this way.
        • Re:Unclean Hands (Score:5, Interesting)

          by Ungrounded Lightning (62228) on Tuesday April 10 2007, @05:15PM (#18682851) Journal
          But the RIAA *can* lose its ability to enforce the copyrights at all. ... the companies would have to come after you individually - at least until they get a new method in place.

          I can definitely see a judge thinking this way.


          Since acting as its members' copyright-enforcement organization is virtually the entire function of the RIAA such a decision would utterly sink it.

          Leaving exactly the decision-makers who chose to proceed with these tactics, along with the hirelings who implemented their policy when they should have known it was wrong, looking for work.

          How perfectly right!
          • Re: (Score:2, Insightful)

            Since acting as its members' copyright-enforcement organization is virtually the entire function of the RIAA such a decision would utterly sink it.

            Leaving exactly the decision-makers who chose to proceed with these tactics, along with the hirelings who implemented their policy when they should have known it was wrong, looking for work.

            Which means they'd likely do what most corporations in such positions do: dissolve and form up as a different corporation, which would then sign the same contracts

    • [rant]I read the Wikipedia entry about "pre-texting", but I remain unconvinced that calling it "pre-texting" makes it any less of a lie or anything more than a lie.[/rant]
    • Copyright Misuse is related to Unclean Hands

      Both of those would be great names for a band!

  • NewYorkCountryLawyer to the white courtesy phone, please. We have an RIAA related legal item that needs translation. Thank you.

  • Worst case for RIAA? (Score:3, Interesting)

    by brouski (827510) on Tuesday April 10 2007, @04:35PM (#18682349)
    In the unlikely event that the RIAA is found guilty of "misuse of copyright" (not that they aren't; I just find it unlikely that the case will get that far) what's the worse that could happen to them? Would it be just a monetary penalty, or does the copyright owner (I would assume the record company) stand a chance of losing the copyright?
    • Get convicted of abusing copyright, the work becomes public domain.

      That would stop them from using thre current techniques, and put more focus on people who are mass producing unauthorized works. NOteble becvause those people, when caught. have a ton of physical evidense that can be used against them.

      In reality, they will probably be sued for damages.
      • Re: (Score:3, Interesting)

        But does the RIAA own the exclusive rights to the song recordings, or are they shared between other parties (such as, dare I say, the artists themselves)? Remember that the "amnesty" they offered didn't protect against legal action from other stakeholders. In this case, the work can't be put into public domain just because one party abused their rights - wouldn't that be an undue deprivation of property for the other copyright holders? IANAL.
            • You are incorrect. The lawsuits are directly controlled by the RIAA. Matthew Oppenheim at the RIAA is the liaison to the outside lawyers.
      • by arth1 (260657) on Tuesday April 10 2007, @07:32PM (#18684105) Homepage Journal
        geekoid (135745) proposed:

        Get convicted of abusing copyright, the work becomes public domain.

        They've already hornswoggled you, I see. The way copyrights work is that the work immediately becomes public domain, and in return for this, the artist (and, through later legislation, whoever the artist sold the rights to) gets a time limited exclusive right to control copies. What the *IAA wants you to believe is that they own the works.

        The artist can retain ownership, but then he would have to not claim copyrights, and instead distribute copies of the works through other methods, like sales contracts. That gives him the right to go after copiers for contract infringements. But he can't have the cake and eat it -- either time limited copyright protection in exchange for making the work public domain, or ownership and no copyright protection.

        And yes, the distinction matters. Because the works are public domain from day one, you are free to do what you like with them except copying. Cause you're the rightful owner. That's one right the *IAA wants to take away, with their fight for perpetual extension of copyrights and their talk about "theft" instead of copyright violation. You can't steal something that already belongs to you, but when they get enough people to believe they have ownership, including judges who grow up "knowing it's so", then copyrights no longer hold any meaning -- it's free protection in return for nothing. Which never was what was intended nor promised.

        Regards,
        --
        *Art
        • IANAL (though I did take a couple of courses in intellectual property while getting my multimedia arts degree), but it sounds to me like you're confusing copyright and patent somewhat. What it MEANS to be in the public domain is that there is no copyright/patent/etc claims on the work in question. I know wiki is a horrible thing to cite, but this isn't a paper and I'm lazy tonight, so two relevant sentences from the top of the wiki page on public domain [wikipedia.org]:

          Public domain comprises the body of knowledge and inno
        • wrong (Score:4, Informative)

          by mattpalmer1086 (707360) on Wednesday April 11 2007, @06:13AM (#18686997)
          You seem to be confusing copyright and patent law.

          Copyright is automatically owned by the creator (or whoever the rights are sold to). There is no need to apply for copyright; it is automatic. The work is not public domain until copyright expires. There is no obligation to publish a copyrighted work. If the artist chooses not to sell their rights, they still have copyright. Copyright grants a time-limited monopoly on making copies of the work. You cannot violate copyright if you have never had a copy, even if you accidentally produce something very similar. You can say the same things as someone else's copyrighted work, and that work will be your copyright. It's all about a particular expression of something.

          Patent law is all about making knowledge about methods of doing something publicly available as a condition of acquiring a patent, in return for which a time-limited monopoly on exploiting that idea is granted to the patent holder. You have to apply for a patent; it is not automatic. You can violate a patent even if you have never heard of it before, or you expressed the ideas in the patent differently. The concepts in the patent are what matter, not their mode of expression.

    • Would it be just a monetary penalty, or does the copyright owner (I would assume the record company) stand a chance of losing the copyright?

      You ask that as if our Litigation Industry is some sort of "Justice System". Living in a capitalist democracy, you should know better.

  • by MaelstromX (739241) on Tuesday April 10 2007, @04:55PM (#18682607)
    It seems like with the tides turning against the RIAA and its members (Sony, Universal, EMI, Warner, et al) that their next act of massive dickheadedness will be to lobby Congress, under cries of massive copyright infringement destroying their industry, that music will die as long as this loophole exists of being able to play host to illegal activity, so long as you aren't aware of it, with no penalties for not taking any preventative measures. Of course I don't think that will kill music at all but the RIAA has a little more sway than me with Congress. :)

    So how long until the owner of an internet service account becomes responsible, no matter what, for what happens via their connection? When incompetence and ignorance are no longer valid excuses? It honestly looks inevitable to me, because it's not like the RIAA is just going to roll over and I hardly think free distribution (aka free advertising) will appeal to them if they haven't gotten the clue this far.
    • Re: (Score:3, Insightful)

      I doubt legislation like that would pass. Considering, for instance, the relative ease of hacking into and (ab)using a wireless router, there is simply no practical way to completely control your internet connection, especially for non-techies.
      • Re: (Score:3, Insightful)

        You say that like it matters. If the music industry could get some sort of strict liability pushed into law, the courts would just treat that unsecured wireless router like they treat a loaded handgun left sitting around. They'd just say that your failure to secure it was so grossly negligent that you're automatically responsible for any misuse that occurred as a result.

        Sure, it would mean fining a lot lot of grandmothers (and children, and dead people, and children of dead people, etc.) into bankruptcy, bu
  • i'm not a legalese speaker myself, just a close follower of the latest legal setbacks for the riaa:

    the riaa's legal tactics against casual downloaders are not surviving closer scrutiny, and this latest legal tidbit from nycl is but another hole in a growing number of holes that the legal system is poking in the riaa's legal tactics

    nycl, a question: if i were to go online now and, using a well-known, well-trafficked file sharing site, downloaded a well-known track, and this were to attract the attention of the riaa driftnets, is it safe to say that i could survive the legal attack using one or a number of the new legal routes around the riaa's tactics you have brought to slashdot's attention?

    or, more succinctly, is the era of the riaa driftnet over? or merely hinted at?
    • I'm pretty sure a lawyer answering that question would run afoul of ethics rules.
    • nycl, a question: if i were to go online now and, using a well-known, well-trafficked file sharing site, downloaded a well-known track, and this were to attract the attention of the riaa driftnets, is it safe to say that i could survive the legal attack using one or a number of the new legal routes around the riaa's tactics you have brought to slashdot's attention?

      IANAL (also IANANYCL), but previous to your posting I would say "possibly or even maybe". However, since your posting here in a public forum, I w

    • by NewYorkCountryLawyer (912032) * on Tuesday April 10 2007, @08:01PM (#18684311) Homepage Journal
      circletimessquare asked:
      if i were to go online now and, using a well-known, well-trafficked file sharing site, downloaded a well-known track, and this were to attract the attention of the riaa driftnets, is it safe to say that i could survive the legal attack...

      I have no idea what you're referring to when you say a "file sharing site", or what you mean by downloading attracting the attention of the riaa driftnets...I don't know why your question was modded up, because you don't seem familiar with the factual matrix of these cases at all.

    • nycl, a question: if i were to go online now and, using a well-known, well-trafficked file sharing site, downloaded a well-known track, and this were to attract the attention of the riaa driftnets, is it safe to say that i could survive the legal attack

      Golly, how many times must this be said?

      No one gets sued for downloading. The illegal activity is distributing copyrighted materials without consent of the copyright holder. So, go download as many songs you would like, you are not going to be sued unle
  • ...and I'll say it again. Take that you fuckers!
  • Chicken of the Sea (Score:3, Informative)

    by vague_ascetic (755456) <vaNO@SPAMimpietease.com> on Wednesday April 11 2007, @10:29AM (#18689753) Homepage Journal

    The RIAA should be harassed just for their use of evil analogy, and the hypocritical corporate use of frivolous nuisance suits as a tool to effectuate their will upon society. From the EFF amicus brief [ilrweb.com]:

    The RIAA itself has likened its campaign to drift net fishing, admitting that "[w]hen you go fishing with a net, you sometimes are going to catch a few dolphin." Dennis Roddy, The Song Remains the Same [postgazette.com], Pittsburgh Post-Gazette, Sept. 14, 2003...

    In addition, the RIAA is attempting to expand the scope of its copyright protections beyond what the statutes provide. This copyright "grab" stems from the plaintiffs' erroneous theories of secondary liability in copyright law. These theories, which the RIAA knows are wrong, attempt to put parents, employers, teachers, and other internet account holders on the hook for third-party computer activities-even when the defendant has no knowledge or ability to supervise the actual alleged infringers...

    The difficulties facing "the dolphins" are compounded by the challenges that individuals face when attempting to litigate in federal court. When the RIAA threatens suit against an individual, it makes sure to offer her a carefully chosen sum that is substantially smaller than the legal fees required to fight the accusations, even for defendants that are completely innocent noninfringers...

    Thus, at the heart of Defendant's counterclaims and Plaintiffs' motion to dismiss is the question of consequences - namely, what consequences should attach to plaintiffs who carelessly net "dolphins" in their mass litigation campaign and then walk away from these cases when a dolphin acts affirmatively to protect itself? Defendant has alleged that Plaintiff's case here has no merit, has been brought to harass him, and that he has not infringed any of its legal rights.

    • Re:Watch out RIAA (Score:4, Insightful)

      by Doctor-Optimal (975263) on Tuesday April 10 2007, @04:28PM (#18682233)
      Only if they lose.


      (Hope hope hope...)
    • I'm having a great deal of difficulty parsing this sentence, being as it contains both "RIAA" and "sense of decency".

      Thus far, their actions have conspicuously lacked decency, morality or even sanity.

      Their aim puports to be to make more money for their members, but their actions are evidently not acheiving that, and no rational analaysis that I've seen shows that their current course has any chance of achieving it.

      • Their purpose is much like the president of the universe. It's purpose is to draw the negative attention away from the record companies.
      • not before they sue saddam, iraqis. then the suing order would break down. if not broken down, suing order will go to the start of the creation, ultimately, suing all that there is and was.