'Jane Doe' Lawyer Glenn Peterson Talks With GrepLaw 227
scubacuda writes "Glenn Peterson, attorney at McDonough Holland & Allen, represents 'Jane Doe,' one of the first to fight the constitutionality of recent RIAA subpoenas. In this GrepLaw interview, Glenn gives his thoughts on recent RIAA strong arm tactics, Matt Openheim's assertion that Jane Doe's arguments have 'already been addressed by a federal judge,' and the danger of giving subpoena power to anyone pretending to have a copyright claim."
urge overkill (Score:4, Insightful)
I know I will end up getting mod'ed the hell down to hell, but it needs to be said. I for one do not support the RIAA in fact I have some fuck the riaa t's [cafress.com] however, I don't see nothing wrong with them wanting to be paid for their material. If you were on the receiving end you would too. I could see where they would go to certain uni's being that few e-diots mess a good thing up for whorish purposes, eg drive more traffic to their site or pretend to be doing for the 'cause'. Whichever case it is still illegal, and their is no excuse for someone to be sharing 10,000 songs.
Boston College and MIT challenged the RIAA's subpoenas on narrow technical grounds, arguing that the RIAA had filed its subpoenas in Washington, DC, instead of Massachusetts.
This in itself is a shaky comeback for MIT, and Boston College considering if some law was broken cross state lines, and mind you the DA's will look at the fact downloads occurred all over the world. Law is law anywhere in the US, I don't know when it stopped being so.
However, the music industry is pursuing music piracy with strong arm tactics and subpoena powers that far exceed those available against violent criminals.
Highly doubtful. Because the RIAA is taking steps to fight for what they think is right, gives no one the right to knock them for it. It's the same as if someone started badmouthing *geek*world for spending so much time on this issue. We feel it's right so we protest, the RIAA feels they're right so they do so as well. Kind of hypocritical to make that statement. But to compare the RIAA tactics and those which pertain to violent criminals, there is not one case of a swat team surrounding any student with guns drawn or the FBI or CIA or any other agency going gung ho over this crap.
Has it ever occurred to people that while protesting can at times be used for the better, at times it can also can major negative impacts on the actual thing being protested. Think about it, if I got a little ticked off that some lawyer is comparing this with violent crime, what do you think average joe is going to think.
In today's news, the MA National Guard was called in to remove a student trading MP3's... This guys reference to hardcore crime on this topic is outrageous, and leads me to believe he is simply looking for sympathy for his cause. Pretty lame, and shows his case is weak.
Re:Fair use needs to be defined more clearly (Score:1, Insightful)
Re:urge overkill (Score:5, Insightful)
Highly doubtful. Because the RIAA is taking steps to fight for what they think is right, gives no one the right to knock them for it
No, it's not highly doubtful, it's a fact. The subpoena powers the RIAA have been
As has been mentioned before, there is nothing wrong, intrinsically, with the RIAA representing their members and protecting their members Copyright. It's just the methods are dubious, and I don't think the end's can justify the means
Re:Wow, nice plan, Glenn (Score:5, Insightful)
RTFDMCA. Under the DMCA willful violation of copyright is a CRIMINAL offence as well as a civil one. Thus a subpoena demonstrating the existence of infringing material may well lead to a criminal prosecution. Hence the need for presumption of innocence.
>>No, IANAL, but I'm wondering how much of a lawyer Glenn really is. He mentions constitutional issues five times, but doesn't expand on what those are, or why they'd apply in a civil suit.
More of a lawyer than you. The argument is that the LAW is unconstitutional, not that the suitor is acting unconstitutionally. Every law passed by Congress, civil or criminal, can be challenged in court and overturned if it breaches the constitution. That's what the constitution is for.
if the riaa wants people to pay (Score:3, Insightful)
that way, they keep thier customer base, the consumers dont get up in arms, legal music grows in users... etc
instead of suing them for $250,000 each song...
Re:Abuse of subpoena? (Score:2, Insightful)
Here's an example of an abuse.
Someones posts a negative comment as anonymous to a public trading board or somewhere like FC [fuckedcompany.com]. The company sues for the AC's information claiming some interpetation of a copyright violation. Who can stop this AC's information from changing hands? Who reviews a case like this to determine if a copyright violation actually occured or not? No one under the current system. The RIAA wants to run by a different set of rules and regulations and under the existing political pressure (money), they are getting special treatment. If you want to look at the exact opposite power of what the RIAA gets, search Google for the horror stories that people have with identity fraud and how hard it is for them to get thier own information from a company or track down accounts opened in thier own fucking name and SSN. The difference? RIAA has lobby money, identity fraud victims do not.
RIAA alternatives (Score:3, Insightful)
Since the combination of technology (DRM) and law (DMCA, EULA's) give unreasonable amounts of leverage to the IP producers, the only real alternative for the end-user is to avoid winding up a criminal by choosing something with less restrictive licensing.
Can someone respond by explaining the alternative licensing arrangements available to artists? What sites post media created under these licenses?
If large numbers of these files started showing up on P2P networks, this could have the potential to legitimize their content, benefit non-RIAA artists, and share some good music/art with the world all without supporting the RIAA.
Of course, you've got to stop buying the RIAA's latest boy-band fad, but that shouldn't be a problem here...
Oh, and lastly, is SCO challenging any of these artistic licenses yet?
Re:Tired of this... (Score:3, Insightful)
However, I think that you're a little off the mark in saying that you wish to fight the system through "piracy". Like it or not, we live in a capitalist country, and the almighty dollar will dictate most of our big decisions. Up until now, it had dictated that art has value only when its distribution is carefully controlled, and circumventing that system is illegal.
I think massive civil disobedience on this issue won't get us anythere: nobody will say "since most people are making illegal copies of music, we should make it legal". The only thing that will work is to show that there is value in art that is distributed as widely as possible. When people realize that they can become musicians without signing away their rights, and possibly even make a living selling their own music if they distribute their music themselves, on their terms, the RIAA will become irrelevant.
The key thing is not to circumvent copyright, but show that the big copyright cartels are not where the value in art lies anymore. Thus, mass copying of other people's work will not accomplish as much as opening up the distribution of your own work. This is what the Free Software movement does: it uses copyright (which was designed to limit distribution) as a tool to distribute information as widely as possible. Perhaps it's time for a Free Music movement?
Bringing some common sense to "damages" (Score:5, Insightful)
"I feel especially passionate about this with respect to the "intent" factor. The intent associated with printing 1,000 counterfeit "Harry Potter" books and that associated with kids sharing music with other kids is obviously different and I can scarcely visualize a scenario where $150,000 per download would be appropriate."
I've already written "my" senators and congress people on this (we'll see what good that does...).
I am just utterly dumbfounded when I see as potential damages for a single act of infringement: $750-$150,000. Can anyone tell me what the basis is for these numbers, or at least whose ass they were pulled out of, and for how much?
Were I to distribute a copy of a track from the latest Metallica album (*shudder*) to one Mr. John Ashcroft, my doing so constitutes a single act of infringement. The theoretical maximum loss to the copyright holder due to this single act of infringement is the price of the album the song is officially distributed on; perhaps the album sells for $14.95. I don't know, I've never purchased an album (it is true!), and as such don't really keep up on prices.
While this is an obvious upper bound, the actual loss to the copyright holder will be far less than this. There a number of factors:
The electronic copy in .mp3 or .ogg format is not a full substitute for the uncompressed CD track.
John (hey, buddy!) has been distributed only 1 of (let's say) 12 tracks.
John has not received a physical duplicate of the printed CD.
John has not been distributed a jewel case.
John has not been distributed "liner notes".
The current retail price of the album may be such that, while John has no objection to being distributed a copy of a single track at no cost to himself, given John's relatively ho-hum interest in the track (understandable), and his limited means (hey, he's Attorney General, not CEO of Haliburton), John would not have acquired a copy of the track at all if it were only available to him at the current retail price.
.mp3 of a track from a 12 track album.
We see that in the case John would not have been willing to pay any money at all to acquire a copy of the track (on the album), the copyright holder incurs no loss whatsoever by my act of infringing distribution.
Even if John would have been willing to pay the current retail price of the album, his receiving an infringing copy of a single track, or even several tracks, can not be said to result in a loss to the copyright holder in the amount of the current retail price of the album. It can not, beause John may still purchase the album. Given the previously presented list, this should not be at all surprising.
In fact, perhaps one of the few cases in which, although John had previously been willing or able to pay the current retail price of the album, upon hearing the infringing tracks I distributed to him he would no longer be willing to pay the current retail price, is the case in which the album fails to meet John's expectations. So yes, in this case, in the case where the current distribution model results in an uninformed and mislead consumer, perhaps my distributing to John one infringing track will result in a loss to the copyright holder in the amount of the current retail price of the album.
But even this is hardly reasonable, for the same effect could have been acheived through perfectly legal means, either by John hearing the track on the radio and realizing "it is the suck!", through word of mouth, or by Mr. Ashcroft coming over to my place for some head-banging, only to discover the album does not meet his expectations.
And so, if we want to assign a fair damage amount for each act of infringing distribution, on average I suspect it will not be more than about $0.50 a track, for an amateur-produced
What? Oh, yes, it
Re:urge overkill (Score:3, Insightful)
What is needed and might change people's minds, would be for a less sympathetic attacker to use the exact same tactics for a more dubious goal. People can talk 'til they're blue in the face about how these new powers can be abused, but it's mostly just theoretical right now. People need to see actual harm against innocents, happening as a result of these new laws.
Perhaps the Church of Scientology needs a little encouragement.
Me too (Score:3, Insightful)
A week ago I was at a party where several six-year-old children were running around. They started painting things on paper. One of them came up to me and showed me a painting she liked that had been done by another child. It was of a bear. She said "I like this painting, I wish I could do a bear." When I asked her why she didn't, she said "oh no, I can't, Laura already painted a bear so only she can do it." I told her that she could go ahead and paint the same bear, a different bear, or anything she wanted. She was delighted.
Re:Tired of this... (Score:5, Insightful)
It seems that those who start out thinking, "I'd like some income. I think I'll write some songs" tend to suck compared to those who begin with, "Songs are cool. I think I'll write some songs."
If the latter group finds that people actually like their songs, then they can say, "These songs are worth money. They can provide me with a source of income." It is their right, both legally and morally, to copyright their creations and profit from them.What often happens though is that after a while they start thinking, "I'd like some more income. I think I'll write some more songs" and then they start to suck. We've seen it over and over - artists start out with a bang and then fade away after several years.
The original poster has avoided falling into this trap and I, for one, admire him/her for it.Re:What happens if RIAA wins... (Score:3, Insightful)
Its bad, but not that bad. AFAIK you can't simply fill out a single form and force Verizon to hand over info on all their subscribers. Maybe I'm wrong, but aren't you required to fill out a separate form for each identity and describe the "infringing" work? Also, if the paperwork is completely bogus you are still subject to perjury charges.
IOW I don't think this system is going to be very good for mining large quantities of data.
BTW, does anyone know if there is a web-accessible "form" for viewing? I would like to know exactly what information has to be provided and what responsibilities the person filling out the form actually has with respect to the accuracy/veracity of the information provided.
Re:Wow, nice plan, Glenn (Score:3, Insightful)
Hmm. Well, he studied Law intensively for at least three years, and I'm guessing your studies in the area amount to maybe a single-semester Civics course and whatever you picked up from reading the Slashdot IANALers argue with each other.
If I had to guess, I'd say he's right and you're wrong.
Re:$750 - $150,000?? And What If I'm Not the O.I. (Score:3, Insightful)
What I mean is this. These high damages assume that I rip and share a track (through the magic of Congressional mathamatics) with 10 people who share to an additional 10 people each etc. until through the power of P2P my single ripped track has become $150K of lost sales/damages. So I'm sued for that $150K/each track.
But wait...
What if the track I'm sharing (assuming that I do this at all for purposes of illustration only) came from not my own rip, but instead from an original infringer only one level up from me. Since he owes the $150K, does that mean he has already paid for me too?
In short, how can they legally or morally claim that every sharer has damaged them for the entire $150K as they are now doing? Yes it is nearly impossible to trace who got which shared file from whom, however I would expect any reasonable court to throw out such ludicrous claims of attempting to charge everybody for the same entire infringment.
Re:Similarities (Score:3, Insightful)
No. The First Amendment is where you will find the Establishment Clause that I mention in my parent post. That clause was never intended to seperate church from government, but rather to allow the states themselves to determine the nature of their own relationships to organized religion, rather than having it force fed them by the federal government.
Specifically, there were only two Founding Fathers who wanted to see real seperation through all levels of government with religion (well, only two that felt strongly enough to write about it at length). Both were Virginian, btw, and neither considered it a deal breaker. Seperation of Church and State as an implication of the First Amendment only holds water if you beleive that the only Founding Fathers who mattered were the Virginian ones, which as a Virginian I like, but as a scholar I recognize to be false. Many voices came together to write the Constitution and almost all of them saw no problem with the state governments and organized religions being in cahoots.
-Tom
Copyright law is broken. (Score:2, Insightful)