RIAA Defendant Says Kazaa Settlement Bars Case 174
NewYorkCountryLawyer writes "The defendant in Arista v. Greubel has filed an answering statement. The statement says that the RIAA's case against him, since it's based upon his use of Kazaa, is barred by the RIAA's receipt of $115 million from Kazaa. Mr. Greubel also challenged the constitutionality of the RIAA's $750-per-song damages theory, saying damages should be limited to $2.80 per song. See the previous Slashdot discussion of that issue and Judge Trager's decision in UMG v. Lindor."
Has the RIAA won any court cases (Score:5, Interesting)
Re:Has the RIAA won any court cases (Score:5, Interesting)
This is an interesting defense, though I don't think it'll fly. I think the record companies will argue that the settlement against Kazaa was for creating the file sharing software, and not for actually infringing on any copyrights.
I do think that the arbitrary value per song is long over due for a re-evaluation. 750 is nothing more than extortion unless they can prove actual value lost (which they can't) or until they actually force someone to settle for that amount, which they haven't yet.
Re:Has the RIAA won any court cases (Score:5, Informative)
No, that's actually the number Congress provided in the statute. It's meant to be an alternative to having to prove actual damages (similar in some respects to, say, workman's comp). In fact, $750 per work is the minimum amount they can ask for; the maximum is $30,000 to $150,000, depending on some facts in the case. Don't think that the $750 figure is them being nice; it's meant to stay away from a jury that might side with the defendant, since if the minimum is what's sought, there's nothing for a jury to decide with regard to damages, or even to need to know about.
As for settlement, that has nothing to do with anything.
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So? It may be the law, but that doesn't make it right. Indeed, the due process defense is interesting, and probably is a better solution to the RIAA lawsuits. In general, a defense based on Kazaa's payment to the recording industry is not a good idea IMO. After all, a paid-off bully has incentive to extort more money from you.
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Re:Has the RIAA won any court cases (Score:5, Funny)
That, or else you might start getting served papers for $2.80 in damages
Re:Has the RIAA won any court cases (Score:4, Funny)
Reminds me of my wife's granddad. (Score:4, Funny)
Reminds me of my wife's granddad and the KKK.
They objected to his choice of wife. One of their members came out to his farm (as he was mending a fence with wife's pop - then a toddler - holding a tools for him) and ordered him off his land and out of the area. He waited until the guy turned around, then beat him unconscious, loaded him onto his mule-drawn wagon, and set the mules walking back home.
Sheriff came out to demand he come into town to be tried for assault. He said he'd be in the next day.
Came in and went to the judge's office. (Judge, of course, also KKK.) Judge told him the fine was something like $100 (a small fortune at the time). He laid down twice the fine.
"What's that for?" asks the judge. "I figure I'll pay for the next one in advance."
Then he beat the tar out of the judge.
(How he avoided the lynch mob is a separate story. And don't try this at home - or in court - these days, kiddies.)
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Then we'd have a lot more people settling out of court, that's for sure.
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There's enough easy to find infringement going on anyway, and no one views ordinary P2P-type infringement as a way to make money through actual or threatened litigation, so I'm unsurprised that the idea of honeypots seems not to have caught on, given how unlikely it would be to work in the first place.
Re:Has the RIAA won any court cases (Score:5, Insightful)
This to me implies that they don't neccesarily have to stick to the minimum, if they can show that the minimum is ridiculous.
Also - I think it isn't quite fair to say that if you uploaded 1 song to 50 people, and those 50 people upload it to 50 people, that you are responsible for all of those damages. Who is to say that they don't go after the 50 people you uploaded it to, and the 50 people they uploaded it to? If they did in fact, then they would be getting damages way in excess of the money they actually lost. Realistically, I think the defendant should only be responsible for damages *directly* caused by them - that is, their initial downloading of the song and their uploading it to others, if those others go onto share it yet again, they should pay the price, not the original seeder.
Re:Has the RIAA won any court cases (Score:5, Informative)
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The only remedies are the ones in the statute. If some of those remedies are unconstitutional, then the statute is gone, and they have to find a different remedy permitted by the statute. The plaintiff can't just ask for an arbitrary amount of statutory damages outside of what the statute provides for; then the courts would be creating their own statutory damages, and that's impermiss
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Under the statutory damages, no. They can only get damages per work, not per infringement. So if you infringed the copyright of one work, the most you could possibly pay would be $150,000. It doesn't matter if you infringed one time or a million times. But if you infringed on two works, then it's twice that.
Under actual damages, it could roughly be per infringement, and the two sides end up fighting over what should and s
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Comment removed (Score:4, Interesting)
Umm... (Score:2)
Re:Umm... (Score:5, Interesting)
"That's $750 PER SONG. Share 1(one) CD? $7,500+."
Good point. I think the "$750 per work" language is a remnant of the old days of piracy, where people tended to pirate entire albums, books, or movies at once. It's from before today's song-by-song piracy.
"That's a hefty fee for putting something on Kazaa. (Compare to fines for reckless driving and the like.)"
Yet if your sharing that song with 10,000 people caused the rightsholders a loss of $750 of business, then it's just. Yeah, yeah, I know, the rightsholder might not need the money and might be a cocaine addict, but rich cocaine addicts have the same rights under the law as we do.
"Given the bandwidth most people have it's extremely unlikely that they've uploaded to more then 50 people. (The song itself may be shared more then 50 times, but not by just one person.)"
You've nailed it. I recall some analysis several years back that through fingerprinting or what have you, they found 16K copies of an Eminem song on a P2P network that all came from the same rip. Power in numbers.
Re:Umm... (Score:4, Interesting)
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Then it would be just if they recovered the money once and all others would be free of indemnity after that. But the way the law is, it gives them the right to recover $750-150,000 from each and every one of the 10,000 people, which surely can't be in the spirit of justice?
Re:Has the RIAA won any court cases (Score:5, Insightful)
Inability to prove your claim should not be grounds to relieve you of that burden.
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That's what IBM has been saying about SCOX.
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Ever been to a library?
They let people TAKE HOME books, CDs and DVDs!
You don't know how
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Is bandwidth a consideration? (Score:2, Interesting)
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Re:Has the RIAA won any court cases (Score:4, Insightful)
The RIAA is not a government nor a government agency. The RIAA cannot collect fines from individuals. Sorry, but the language we use is very important or else we'll start thinking things unconsciously. That's why anti-abortion people call themselves pro-lifers.
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But wasn't that their whole argument? That Kazaa thrived off of copyinfringement, not that they had some disdain for networking protocols...
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Re:Has the RIAA won any court cases (Score:5, Informative)
The RIAA hasn't won any contested case.
No defendant has won a contested case either.
No contested case of which I am aware has been seen through to conclusion yet.
(By "contested case" I mean a case in which the defendant (a) denies having done what the RIAA claims he or she did, and (b) is fighting back and not defaulting.).
There are probably cases out there that I don't know about. If you hear of any, please let me know.
Re:Has the RIAA won any court cases (Score:4, Informative)
Doing a quick google search for "RIAA contested case" turns up this link http://arstechnica.com/news.ars/post/20061015-799
Defendants 1, RIAA 0.
Re:Has the RIAA won any court cases (Score:5, Funny)
We have always been at war with the RIAA.
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It's wrong of course, 1984 is very complex, too complex for a single idea to be distilled from its pages. I love the book myself.
I more often compare the RIAA/MPAA/DMCA situation to Plato's Republic, which predates 1984 somewhat.
IANAL (Score:5, Informative)
Sued? (Score:2)
Piracy Tax? (Score:5, Interesting)
Re:Piracy Tax? (Score:5, Interesting)
The Recording industry lobbied the government to introduce a tax on recordable CDs (and MP3 players IIRC) which was then paid out to the recording industry; later the recording industry wanted to sue individuals in Canada for downloading music and it was ruled that people had already paid for the music through this tax.
Re:Piracy Tax? (Score:4, Interesting)
Piracy Tax for the Zune (Score:2)
I don't know about Canadians, but my understanding is that with the Zune situation, the artists get half of the money that Universal gets from Zune sales. I think Universal gets about $1/Zune. So each artist gets a pico-cent from the Zune. Altogether they should end up with a total of 12 pico-cents each.
what's the ratio of Zune-points to pico-cents? (Score:2)
that Canadian media tax was also put on blank CDs and DVDs iirc. oddly i do not think it applied to HDDs, just plastic media and portable MP3 players. didn't the iPod/MP3 player part of that tax get overturned? i thought there was some sort of rebate. i know the same idea has bounced around in parts of Europe too.
Re:Piracy Tax? (Score:4, Insightful)
administrative costs are excessive
industry collects revenues
system lacks proper accountability and transparency
imho, it's like many other good ideas that have been corrupted by greed
its one redeeming feature, there is less lawyer fodder
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"silly questions but... ...do the artists get an automatic percentage of this tax collected by the music industry in canada?"
To expand on some other answers: it's split up roughly according to sales, and goes to Canadian artists. Which means that the bulk will go to Celine Dion and her songwriters, but your typical recording artist or songwriter who sold maybe 5K CDs last year won't get anything worthwhile.
Many Canadian music fans use the tax as an moral free pass to pirate as much as they want since
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And that's why I don't buy CDs, but rather go to the shows. Artists make crap off of CDs, and new/indie artists make even less. But if I go to the show, buy a ticket, and maybe buy a CD or TShirt there, the artist ends up getting more money out of that than if I'd bought their entire anthology from The Record Store.
For bands where I can confirm the band runs the website and not the label, I'll buy the music or merchandise o
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"And that's why I don't buy CDs, but rather go to the shows. Artists make crap off of CDs, and new/indie artists make even less. But if I go to the show, buy a ticket, and maybe buy a CD or TShirt there, the artist ends up getting more money out of that than if I'd bought their entire anthology from The Record Store."
Just to correct one generalization -- many indie labels pay the artists more than do the big labels. I'm referring to Magnatune as well as traditional indie labels.
Anyway, I've heard from
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Not a silly question at all. I was one of the official objectors on this court case in federal court a few years back. Their inability to fairly distribute brought the whole regime into question, and for that reason (among others) I argued that it should be scrapped.
Right now it's collected and distributed by an agency called the Canadian Private Copying Collective [www.cpcc.ca]. They base their dist
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Kind of like a reverse tax.
They collect the money and then subsidize the CD sales.
That would make sure that the truly more popular artists receive the money according to sales and not the radio stations play lists.
just an idea but,it might work.
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"The Recording industry lobbied the government to introduce a tax on recordable CDs (and MP3 players IIRC) which was then paid out to the recording industry; later the recording industry wanted to sue individuals in Canada for downloading music and it was ruled that people had already paid for the music through this tax."
Are you sure that it was the CRIA? I thought it was SOCAN that lobbied for and collects the tax -- but please correct me if I'm wrong.
I know it's an easy shorthand to blame "the recor
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Re:Piracy Tax? (Score:5, Informative)
The recording industry lobbied the government for a levy (not a tax) on recordable media. The government decides what media is covered and what the amount of money is levied. The money is sent to the recording industry which is supposed to distribute it to the recordning artists (I don't believe that part has actually happened yet).
In exchange for the levy, the copyright act specifies that copying an audio musical performance for personal use is not considered infringement. This is *very* different than saying "It has already been paid for". It has not. Copying for person use is *not* infringement whether or not the must has "been paid for".
The court case in question was an injunction to get certain ISPs to release the names of accounts who had been shown to share files over the internet. In the case, the recording industry failed to show that they represented the copyright holders for those files (they had file names, not contents). And they failed to show that the copying was not for personal use. Further they failed to show that making a file available *to others* on the internet actually infringed copyright (since *they* weren't the ones who were copying it).
So, they failed to show any evidence at all that copyright infringement had occurred. And so the judge did not grant the injunction.
Right now the Canadian government is making ammendments to the copyright act. There are no details on what those ammendments will be. But one can guess. Government officials have been meeting with recording industry lobbiests to consult on the issue. The government even paid hundreds of dollars to take lobbiests out for lunch. So far they have refused to meet with pro-user lobbiests.
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The RIAA Has To Sue.... (Score:5, Funny)
Double dipping is why they can't sue in Canada (Score:4, Informative)
Yeah... (Score:2, Interesting)
First off, who knows if what he is saying will work. If he goes into this he could be wrong and get completely fucked. They will of course offer a settlement, etc etc and everyone will be warm and cozy.
Secondly, if they actually see a threat, they will simply drag it out as long as they can until the defendant runs out of money...at which point they will probably offer another settlement.
He's fucked either way, unless he's rich or something.
Re:Yeah... (Score:5, Insightful)
Especially with that attitude...
One point: computer geeks and programmers need to get used to the "feces flinging" technique of the lawyers. Write a program with multiple logically inconsistent statements and it will collapse in a screaming heap. Doing that is anathema to most programmers. But when mounting a legal defence (or attack), you're allowed make logically incompatible statements. You just keep flinging feces until something sticks. The fact you're arguing the case should be dismisseddoesn't stop you arguing that the damages awarded should be reduced 100x - EVEN THOUGH it's nonsense to talk of damages because you're arguing the case should be dismissed. Many computer geeks just don't get that. You're not programming a consistent logical system, you're feces-flinging. Remember that, and you can start to win much more often against the lawyer/CxO scum.
Re:Yeah... (Score:5, Insightful)
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"In the first place, I never borrowed your car".
"In the second place, the front end was crumpled when I borrowed it".
"And in the third place, I returned it to you in showroom condition".
"Scum" would be one of the milder words you might use.
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It isn't multiple arguments about how I'm right. It's arguing that I'm right, and after you find in court that I am wrong, you should sentence me as if you think I'm right. The way a lawyer will prepare for the sentencing phase before the sentencing phase will lead to arguments that are not related to the finding, but the severity.
Is it logically
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I don't know what computer programmers you work with, but there aren't many I know who don't understand an "if->elseif->elseif->elseif->else" loop chain.
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It's essentially saying, "the fact is that X, but if all logic fails we'll recover as well as possible instead of just freaking out and dying".
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You're just complaining that lawyers make a lot of arguments in the alternative. This is really not different than having conditional statements in computer programming. You're required to make all the arguments you can make up front, partly to be fair to the other side (so they have a chance to respond), to not waste the court's time (courts do not tolerate surprises or sudden changes midway through a suit), and to avoid the danger of suing the defendant again and again over the same thing (which wo
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Not really; for the most part, you are allowed to, for instance, argue that one of two (or more) logically inconsistent scenarios is the case and present the arguments for each. It's not really at all analogous to much in programming, because if you right a program you are ordering the computer what to
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Seems to me programmers already think like this... cover all possible conditions so your code doesn't end up in an unexpected state.
switch (argument) {
case ARG_ALREADY_SETTLED: get_off_totally(); break;
case ARG_PENALTY_TOO_HIGH: get_off_easier(); break;
case ARG_RIAA_ARE_LYING: get_off_totally(); break;
default: cry_alot(); break;
}
Greubel Has Sugar Daddy (Score:4, Interesting)
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Fascinating Idea, But... (Score:2, Insightful)
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Of course, he could be sitting back and thinking, "Oh, he is so going to get his butt kicked by the RIAA," but I doubt it.
Re:Fascinating Idea, But... (Score:5, Informative)
I wouldn't bet against these guys.
but what if he wins? (Score:2, Interesting)
Bad complaint (Score:2)
Plaintiffs are informed and believe that Defendant, without the permission or
consent of Plaintiffs, has used, and continues to use, an online media distribution system to
download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public,
and/or to make the Copyrighted Recordings available for distribution to others. In doing so,
Defendant has violated Plaintiffs' exclusive rights of reproduction and distribu
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One initiating a lawsuit is not required to have evidence establishing the truth of every claim before filing a complaint (that's what discovery to develop evidence and trials are for); those things that the plaintiff does in fact believe and will seek to establish as fact, but which the plaintiff cannot state as certain
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I've seen a bunch of complaints, and they are a mixed bag, but references to "information and belief" aren't all that uncommon. Here are a few examples from a quick googling:
Raytheon v. John Does 1-21 [netlitigation.com]
Roadrunner v. Network Solutions [patents.com]
US v. Olivia Alaw, et al. [usdoj.gov]
Macromedia v. Adobe Syst [techlawjournal.com]
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You clearly didn't read the link:
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It still seems like bad writing in this case as they've qualified their core allegation as a belief. I guess you don't get style points in a lawsuit though.
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Just for the record, they're not accusing the guy of downloading stuff. They're accusing him of uploading stuff.
Re:Bad complaint (Score:5, Informative)
They're all the same by the way, all 20,000 of them.
So far though 6 out of 6 judges have said that this vague complaint is ok for the first round.
We're still waiting for judge number 7, Judge Karas, in Elektra v. Barker [riaalawsuits.us].
Just an opinion (Score:3, Interesting)
They may be complicit, but I think the judge will still see this guy as having guilt regarding the 'crime' in question.
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No, there's no fine line. Even if you can prove you did it in good faith, you're still liable (I think it drops from 750$/work to 100$/work, but you'd have to look it up).
Jury trial (Score:2)
Re:Jury trial (Score:5, Funny)
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juries tend to be middle-aged, middle class, small-c or large-C conservative. people who take the oath seriously and are not looking for an excuse to beg off.
not a particularly benign environment for the defendant.
one last word of practical advice for the Geek: never go into court thinking you are O.J. Simpson.
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Jury nullification is not needed. All that is needed is a fair trial. In most of the cases.... the RIAA does not have a case. No reason in the world to think the jurors will be biased towards the RIAA.
Terminology (Score:3, Informative)
Good idea (Score:2)
There's an element of "doing it on principle" here, because if Joe Sixpack is jointly and severally liable with Kazaa for damages, then it means that Kazaa could (at least potentially) sue Joe for his contribution to the damages. It opens a lot of questions, like how much of the settlement Joe is
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I want to see someone try a "CD tax" defense (Score:2)
Seems these orgs are double-dipping in a *big* way with the current system, and they need to get
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