'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."
Rationale (Score:5, Interesting)
The tactic of any defense suit should be to challenge the DMCA on fourth amendment grounds. Nowhere in the US constitution is the right to subpoena, search, and seize given to corporations or their representatives.
HOWEVER, this doesn't mean that the RIAA are in the wrong necessarily. If they want to enforce the copyrights that they hold, they have to do something. I have always preferred the idea of targeting individuals who were infringing rather than mass lawsuits against "P2P", which was their tactic until recently. The method for doing this should be through normal legal channels though, not based on "PR".
What happens if RIAA wins... (Score:5, Interesting)
Re:Rationale (Score:4, Interesting)
Re:Al Qaeda VS Johhny Music Downloader... (Score:5, Interesting)
"Copyright Act prevents against unauthorized reproductions, alterations etc. etc. So dl'ing your mp3's is illegal, plain and simple"
Just remember that, if you don't had any special new limiting right, the basis of (Int'l) copyright law is the Bern Convention.
On the basis of this convention, this is NOT illegal to dwl MP3, event the local RIAA-like institutions officially agree with that and put it on their website or in the letters sent to 'uploaders' (which is always illegal, if not within a _small_ _private_ circle of friends)
And this should be the case in most european countries (at least, for sure, BE, CH, FR)
Re:Of couse... (Score:1, Interesting)
Yeah of course it's also about protecting the artists from having their art being hijacked by the corporate scums, but you know what? it's happening anyway, copyright or not, justa that they manage to do it legaly, but im not taking about that.
So, get back to our carrots.
It's a social contract between all of us the fine people of the third word of the western civilisation.
We we don't respect the copyright law, there's 2 possibilities.
1. intelectual feudalism, all your IP are belong to the blue-blood chosen ones
2. the music industry gets destroyed (a very good thing, by the way).
3. a big molasse of litige, legality, and bullshit, where the fantasms are the points of law, whatever, nevermind.
Fair use needs to be defined more clearly (Score:5, Interesting)
Re:Rationale (Score:5, Interesting)
Yeah, but at the same time they need to get the word out. A lot of people genuinely don't realize that what they do is illegal. Doe's lawyer even makes the same point: teenagers in an environment where they can't be expected to know that what they are doing is illegal. I actually know a couple musicians who think that, because they are musicians and need access to musical works to practice for covers, think that this gives them a right to infringe - perfectly above-board and legally. They honestly believe this, and they tell their friends, too!
So, to protect legitimate copyright claims (yes, legit. I'm talking law, not ethics, not justifications!), the RIAA has to get the word out. They can buy publicity spots and crank out the infommercials. Will anybody listen? Not even during the Superbowl! Or, they can make a few examples, make them firmly, juice them for PR and maybe scare people into listening. It's unfortunate, but there just isn't any better alternative for them to protect their intellectual property.
More importantly, and more germanely, they don't necessarily need the massive subpoena authority granted under section 512. They could still pick a representative handful of people and make their lives a living hell, and make sure the rest of the unaware file-sharing community knows it. Coming from RPI as I did, and personally knowing one of our $97 Billion RIAA Sweepstakes Winners, I'd sit up and take notice in a hurry. It only takes having one person you know get nailed before you stop and think about it.
I think it goes without saying that, as a community, we generally believe that they're better off not enforcing these claims too vigorously. We've all seen the studies that, as sharing goes up, so do sales. But holding to a broken business model doesn't change their rights under broken US law.
just for info... (Score:4, Interesting)
does anybody know?
Re: Rationale - No AOL subpoenas yet. (Score:3, Interesting)
This selectivity demonstrates exactly why nobody should be given the power that they currently have.
Wow, nice plan, Glenn (Score:3, Interesting)
Based on this interview, he's going to argue that people can't be identified in a civil suit until we know that what they're being sued for is actionable.
Psst, Glenn, in a civil suit there is no presumption of innocence, and quite literally no prejudice. The result of the suit is the indication of whether the case is actionable. There's no stigma attached - in the eyes of the law - if it fails, and if you believe otherwise, your response should be a counter-suit to show that, not an argument that a suit can't be brought against you.
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.
I wish him and Jane the best of luck, but on this basis, they're really going to need it.
Similarities (Score:5, Interesting)
Quoth the article "There are interesting similarities between the RIAA's campaign, Prohibition, the War on Drugs, and the 'War on Terrorism.' ".
Really well put, what do all of these things have in common, they will all, in the end, be failures. I've gone in to this a thousand times before, but sometime soon governments/organizations will have to learn that no matter how hard you try you cannot manipulate everyone into thinking the way you want them to. There is an innate ability in some humans to make their own decisions, and although it is more sparce today than say 20 or 30 years ago, there are those who use this ability and formulate their own decisions. The gov't/RIAA hate this.
During prohibition there was a massive (failed) propaganda campaign. The war on drugs, I think everyone who realizes that it is easier to buy pot/coc/crack/heroin/pcp/lsd than alcohol on a sunday in most states will agree that this has been/is/will continue to be a failure. I know I'll get at least ten proud citizens that will argue with me on this one, but the War on Terrorism will fail too.
The reason the war on terrorism will fail is because we (the US) are using the wrong methods. Again we've fired up the propaganda machine, I saw an interview with the new "Big Cheese" of Fort Bragg. In it, he said the reason that terrorists attack is because they are "jealous of our way of life". This could not be a more callous, arrogant, and ethnocentric lie. These terrorists, especially the 9/11 group and friends, weren't jealous of our way of life. They were irrational because they were religious extremists and a 1,000 years ago christians returned to a land they had given up years ago, slaughtered indiscriminantly, and claimed to have "retaken the holy land", which coincidentally, is the muslim holy land too. So began the feud between the extremist muslims and the extremist christians. Fast forward a few hundred years and we see that even though the US has a supposed separation of church and state (don't even get me started on that nutcase holy roller 10 commandments uber-conservative closed minded judge in Alabama) the US gets involved in this war and picks (of course), the judeo-christian side. That series of events is (predominantly) why the 9/11 attacks happened. Back to the war on terrorism failing, so we're attacking this thing in the wrong way. The gov't is spreading falsities about the people involved, we're insulting everything from their land, to their culture, to their names, which does not bode well for diplomacy and mutual respect. To add insult to injury, we're killing anyone who gets in our way while we try and kill a few of our personal favorites as well. The apparent reasoning behind the killing is the "cut off the head and the body dies" logic, which DOES NOT WORK WITH NON-CENTRALIZED organizations. Due to this piss-poor technique, the war on terrorism will, in the end, create MORE TERRORISM.
It's a similar logic failure which is afflicting the RIAA's battle. Rather than scaring users into paying full price and not pirating, they're simply angering and frustrating them into adapting to new ways to achieve the same result, sometimes worse. I wasn't boycotting the RIAA until about 5 months ago, so from me alone they've sold around 15-20 less CDs (for some reason some indie bands end up on RIAA labels), and I've increased my downloading (and uploading) levels, yeah, good strategy here.
Tired of this... (Score:5, Interesting)
Copyright law is bullshit. First off-- to make those of you that actually care understand that I have some standing on the issue-- I'm an artist, among other things. I write, act, and direct both for free and for money. The pay is little, and I honestly am only concerned with making back the money I put into a performance. I can and do find money elsewhere, doing the meaningless things that our labor-as-commodity economy provides and occasionally finding the job that really provides me with satisfaction. Would it be nice to devote more time to my creative work? Sure, except I find being an automaton provides just as much time to space out and file ideas away in my head as sitting in front of a computer thinking ever could. It certainly provides me with more inspiration.
I don't care if people tape my shows. I don't care if people show them to all of their friends. I don't care if people make as many copies as they possibly can give them away. I doubt I'd even care if people sold those tapes for $1000 a piece. There's really only one thing I really care about: a little bit of credit. If someone's taking my writing and performing it (whether or not for pay), I'd like to receive just a note of thanks for putting some effort into writing it, exactly as I appreciate it when my girlfriend thanks me for bringing her lunch at work. Common courtesy is all I ask.
I don't create for money. I create because I have to. It makes me happy. At most of my free shows, we break fire code. And when I manage to take all of those people and force them into the exact mix of emotions I'm aiming for--when a nervous, uncomfortable laughter rides over the crowd--that's a better feeling than anything. Like the MasterCard commercials, money can't buy some things.
Some of you will say, "Yes, but you have a right to be paid for what you do." I don't see it. I have a right to do what I want to do, and in a perfect world, I'd be able to work my ass off doing that and not have to worry about paying the bills and whatever. I have no right to be rich, and that's all royalties and pay-for-play is about. I perform for people because I want to connect with them, to make them laugh, to simply make them glad that they took 2 hours out of their day to sit back and enjoy something. Charging only limits my audience, and frankly, the reason I do what I do seems to me to be far more important than getting paid to do it, particularly when I consider how disgusted I am with what the pursuit of money has brought this country.
I have no reservation about "stealing" from record companies, software companies, or whatever. No, I don't want to see artists starve, but really, the revolutionary that's too careful about stepping on toes doesn't do shit. I want to keep hearing Aesop Rock, but I want, more than that, to tear down the barriers that reinforce elitism. I want to see everybody "pirate" music and software. I want to see Microsoft's profits dwindle until they disappear and force it to fold. I want the creative work of the world come to a screeching halt under capitalism so that people realize free is the only way to go-- that creation implies ownership no more than discovery. I want this because the system we have is fucking stupid. It's so fucking stupid that we get article after article posted about the latest lawsuit the RIAA's intellectual-property-rights claiming jerkoffs are waging against somebody that really just wants to share the creative wealth of human achievement.
Noam Chomsky sums it up well: "It is sometimes argued that constructive and creative work will cease unless it leads to material reward, so that all of sociey gains when the talented receive special rewards. For the ma
Re:Fair use needs to be defined more clearly (Score:1, Interesting)
This "fair-use" bs is tiresome. Yes you can tape TV shows for your own PRIVATE viewing. You can't rebroadcast them [even for free] to the public.
So yes, you can backup music and dvds [which is why I think nobody should restrain DeCSS] but you can't "share" them with people [well you can, but you're not supposed to].
Tom
Re:Rationale (Score:1, Interesting)
Re:Rationale (Score:2, Interesting)
Well, the whole point of the lawsuits is to get the word out. And come on, you don't think that the word has long been out?
First Napster was famously shut down for contributory copyright infringement. More recently the RIAA sent out millions of IM's over Kazaa, and there have been countless stories in the press, as well as sponsored promotional campaigns (even in movie trailers) -- frankly I find the "I didn't know it was wrong" excuse hard to swallow.
And for that matter 'ignorance' has never been an excuse that absolves guilt anyway, though it certainly may be taken into account when considering the appropriate punishment.
It's important to separate questions regarding this fast subpoena process from whether it's appropriate to specifically pursue the people directly infringing on copyright.
No doubt if we're going to maintain that P2P shouldn't be held accountable for how some may misuse it, then we acknowledge that some may misuse it, and a response to such misuse is to be expected.
This isn't about just music -- an independent coder (like me) is protected by the same copyright that protects music.
And for that matter, the very same copyright also protects GPL. So if it's phooey on copyright for music, then it's phooey on copyright for code too (both GPL and non-GPL).
Re:Similarities (Score:3, Interesting)
I don't mean to nitpick, heck I basically agree with your points; however, it is worth noting that we do not have a seperation of church and state anywhere in the constitution. That was a phrase taken from the writings of one of our Founding Fathers and used in a Supreme Court case to justify said seperation. The Establishment Clause, though, was only designed to keep the federal government from establishing a state religion because, and this is key, it wanted that right to fall upon the individual states.
That is why, even after that amendment was added, 8 states maintained official state religions. It was not until LONG after that when anti-catholic sentiment ran high did the Establishment Clause grow in practiced scope. They wanted to avoid a Catholic state in favor of the current default Protestant state. Hardly a noble endeavor.
Disclaimer: I'm Methodist, not Catholic, though I do have a degree in religion.
-Tom
Re:Similarities (Score:2, Interesting)
Oh come on US presence in the gulf is about oil. This expensive resource makes US want to "be present in the region" and part of the oil revenue is used to pay for terrorist's arms. Once it isn't a strategic resource any more (when it's finished or when it's made redundant by new technologies), US will loose interest, retreat and the terrorism will stop because it will not be financed any longer. "War against terrorism" is just smooth talk for "we want to secure our oil supply".
The RIAA's fight is different because there always will be enough resources (musicians) out there. Their business model is still lawful and the product music isn't as morally reprehensible as drugs or alcohol.
Also, the RIAA is an intelligent body that will not be pushed aside that easily. A huge change in people's awareness is needed for this to happen. That'll take time.
Re:just for info... (Score:4, Interesting)
Even better, you can demand from his ISP information including name, email and home address, phone number, etc., of all their customers. You can then do as you like with this data. It's a real windfall for the spam (uh, I mean marketing) folks. Maybe you could use this info to start your own lucrative spam (uh, I mean marketing) operation.
Hmmm
Re:IANAL (Score:3, Interesting)
It didn't create itself in a downloadable form. SOMEONE had to do work to rip the the track/song into an MP3, thus it is a derivative work. It is a work by the ripper to produce a reasonable facsimilie of the original. Thus, the ripper is an artiste.
Re:urge overkill (Score:3, Interesting)
Don't forget that the exact same ISPs that are now biatching about the subpoenas agreed to them when they sat down and hammered out the terms of the DMCA.
That was part of the 'safe harbor' deal that protects ISPs from being held accountable for how their subscribers might violate copyright.
The tricky part is that the original terms dictated that it generally applied to HTTP/FTP sites hosted on ISP servers, whereas the P2P apps are on home-bound PCs routed through the ISP.
To put it another way, imagine that your PC running Kazaa were co-located at an ISP. Giving up that name is essentially what they agreed to do.
Personally, I don't think there's much difference between my PC here and my PC co-located at an ISP.
However, this 'fast-track' subpoena process does seem highly problematic -- just don't forget that these very ISPs agreed to it in order to shift the legal burden from themselves to their customers (ie: you).
Re:Tired of this... (Score:3, Interesting)
Its not about the RIAA reactionaries! (Score:2, Interesting)
Actually you are not a criminal by downloading, you are a criminal by uploading. I may be splitting hairs, but I think that is the way it works. That is why I suggest only uploading obscure hard to find files that people want and need and not dozens of top 40 albums. The top 40 stuff always sucks you band width, and who wants to share with those chumps anyway. Those are all the record companies care about too because they are the only songs they make cash on, that 2% of music that gets to the top of the charts. They lose cash on the rest. You are doing them a favor by saving them printing costs on all of the obscure, money losing music. If your worried about the artist losing cash, go see them live. We don't need any more Kid Rock floating around in swap land. Simply upload about 30 or 40 songs total of obscure music, that you find important, hard to find and valuable to the community. If they sue you and find you have 100 gigs on your computer just say you don't share them, you only download, and you will be telling the truth.
Another way to protect yourself is to combine music archives with friends. The problems with MP3's are keeping your songs organized and backed up. By pulling a spare drive and passing it around to friends you can have 10 backups on friendly machines and aggregate all of their collections into yours to make a super collection, which can be cleaned up and ORGANIZED, so you don't have 10 copies of the same song and throwing bad copies. By doing this you can have a 100 gig archive that will be so bloated with quality files you can play them for 6 months solid without a repeat, pick any song you want to hear or switch categories based on mood, WOW! We also ripped our entire CD collections and share them this way.
Also, since I just turned 30, I am too old to be in the scene any more, I can just get music from other people with better knowledge of whats happening and get the best stuff for the least work.