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Judge Says RIAA "Disingenuous," Decision Stands
Posted by
kdawson
on Tue Apr 24, 2007 02:16 PM
from the smackdown dept.
from the smackdown dept.
NewYorkCountryLawyer writes "Judge Lee R. West in Oklahoma City, Oklahoma, has rejected the arguments made by the RIAA in support of its 'reconsideration' motion in Capitol v. Foster as 'disingenuous' and 'not true,' and accused the RIAA of 'questionable motives.' The decision (PDF) reaffirmed Judge West's earlier decision that defendant Debbie Foster is entitled to be reimbursed for her attorneys fees." Read more for NewYorkCountryLawyer's summary of the smackdown.
The Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true." This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly.
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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."
[+]
RIAA Victim Wins Attorney's Fees 171 comments
VE3OGG writes "Debbie Foster, one of the many caught-up in the RIAA's drift-net attacks who was sued back in 2004 has recently seen yet another victory. After having the suit dropped against her "with prejudice" several months back, Foster filed a counter-claim, and has just been awarded "reasonable" attorney's fees. Could this, in conjunction with cases such as Santangelo, show a turning of the tide against the RIAA?"
[+]
RIAA Has to Disclose Attorneys Fees In Foster Case 193 comments
NewYorkCountryLawyer writes "The RIAA has been ordered to turn over its attorneys' billing records by March 26, 2007, in Capitol v. Foster in Oklahoma. The 4- page decision and order, issued in connection with the determination of the reasonableness of Ms. Foster's attorneys fees, requires the RIAA to produce the attorneys' time sheets, billing statements, billing records, and costs and expense records. The Court reviewed authorities holding that an opponent's attorneys fees are a relevant factor in determining the reasonableness of attorneys fees, quoting a United States Supreme Court case which held that 'a party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by his opponent in response' (footnote 11 to City of Riverside v. Rivera)."
[+]
RIAA Balks At Complying With Document Order 166 comments
NewYorkCountryLawyer writes "When the RIAA was ordered to turn over its attorneys' billing records to the defendant's lawyer in Capitol v. Foster, there was speculation that they would never comply with the order. As it turns out they have indeed balked at compliance, saying that they are preparing a motion for a protective order seeking confidentiality (something they could have asked for, but didn't, in their opposition papers to the initial motion). Having none of that, Ms. Foster's lawyer has now made a motion to compel their compliance with the Court's March 15th order."
[+]
RIAA Secretly Tries to Get ISP Subscriber Info 127 comments
NewYorkCountryLawyer writes "In an attempt to change the rules of the game, the RIAA secretly went to a federal district court in Denver with an ex parte application. The goal was to get the judge to rule that the federal Cable Communications Policy Act does not apply to the RIAA's attempts to get subscriber information (pdf) from cable companies. Just to clarify, ex parte means that the application was secret, no one else — neither the ISP nor the subscribers — were given notice that this was going on. They were, in effect, asking the Court to rule that the RIAA does not need to get a court order to be able to force an ISP to disclose confidential subscriber information. The Magistrate Judge declined to rule on the issue (pdf), but did give them the ex parte discovery order they were looking for."
[+]
RIAA Security Expert's Quest For Reliability 170 comments
NewYorkCountryLawyer writes "In the ongoing case of UMG v. Lindor, Ms. Lindor has now moved to exclude the trial testimony of the RIAA's 'expert' witness, Dr. Doug Jacobson. Jacobson is the CTO and co-founder of Palisade Systems, Inc, and a teacher of internet security at Iowa State, but in his February 23rd deposition testimony she argues he failed to meet the reliability standards prescribed by Daubert v. Merrell Dow Pharmaceuticals, Inc. and Federal Rule of Evidence 702. The Groklaw and Slashdot communities participated in both the preparation of the deposition questions, and the vetting of the witness's responses."
[+]
Washington Woman Sues RIAA for Attorneys Fees 115 comments
NewYorkCountryLawyer writes "A Washington woman sued by the RIAA has asked the Court to award her attorneys fees, after the record company plaintiffs (Interscope Records, Capitol Records, SONY BMG, Atlantic Recording, BMG Music, and Virgin Records) dropped their case against her after two years of litigation, in Interscope v. Leadbetter. The brief submitted by her attorneys (pdf) pointed out the similarity between Ms. Leadbetter's case and Capitol v. Foster. In the Leadbetter case, as well as Foster case, the RIAA sued the woman solely because she had paid for an internet access account, and then later in the case attempted to plead 'secondary liability' against her without any factual basis for doing so. This tactic had been repudiated by Judge Lee R. West in Capitol v. Foster as 'marginal' and 'untested' in his initial decision awarding attorneys fees, and in his later decision denying the RIAA's motion for reconsideration."
[+]
RIAA Directed To Pay $68K In Attorneys Fees 192 comments
NewYorkCountryLawyer writes "In Capitol v. Foster, in Oklahoma, the RIAA has been directed to pay the defendant $68,685.23 in attorneys fees. This is the first instance of which I am aware of the RIAA being ordered to pay the defendant attorneys fees. The judge in this case has criticized the RIAA's lawyers' motives as 'questionable,' and their legal theories as 'marginal' (PDF). Although the judge had previously ordered the RIAA to turn over its own attorneys billing records, today's decision (PDF) made no mention of the amount that the RIAA had spent on its own lawyers."
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Hey, RIAA (Score:5, Insightful)
Re:Hey, RIAA (Score:5, Insightful)
Judges, no... (Score:5, Interesting)
Re:Hey, RIAA (Score:5, Interesting)
Re:Hey, RIAA (Score:5, Interesting)
And for the past decade or so, they've been succeeding.
Sadly.... (Score:5, Insightful)
Re:Sadly.... (Score:5, Insightful)
I would not be so sure about that. If this decision withstands the test of time, many lawyers will be willing to take on at least some of the cases, since the salary will now come out of **AA's pockets. The obvious outcome will be that more people will engage in illegal filesharing (seeing that it is possible to go to court and win), while **IA will have to pay considerably more for its "war on piracy".
Re:Sadly.... (Score:5, Insightful)
Re:Sadly.... (Score:5, Funny)
That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.
Bands make money from touring. DRM is evil. You can make unlimited copies of a song for no marginal cost. I only listen to independent bands anyway. Live music is better. The president of the RIAA has a monocle and stokes a cat all day. Ogg Vorbis is a good name for a file format. Micropayments are the future. Outmoded business model.
Re:Sadly.... (Score:5, Insightful)
It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales. If this goes on, we might see the destruction of copyrighting sequences of notes and see entire new genre's of music like blues which shamelessly infringe on the same set of riffs for different songs.
A unique combination of generations of producers, lawyers, organized criminals, and the congressmen and senators that they bought have worked hard to create a virtual monopoly. Where is our respect for all that work?
Re:Sadly.... (Score:5, Insightful)
If you are trying to make a living by writing and selling music, then you have essentially three choices--market it on your own, make it free and try to make money touring (if you can get noticed); or you might be able to secure an independent label contract, market it essentially on your own, and hope to make money touring; or, if you get lucky, you can get noticed, sign a major label (read: RIAA) contract, and be stuck with whatever terms they offer, because while some people are good enough to have multiple labels clamoring over their stuff, this is unusual. Instead most bands are lucky to have any label be willing to sign them and there are always others willing to take your place.
The result is that RIAA labels, in effect, have huge amounts of buying power when it comes to negotiating artist contracts. These contracts are typically draconian in nature, and leave most bands actually losing money for a while, although the label is raking in lots of cash.
Now, if you go with an independent label, you just have to HOPE that you get famous and make money. The same is true of no label deals, and in all cases you are expected to tour relentlessly and hope for the best. NPR did a fluff piece on the Dresden Dolls a while back that talks about how the band was making less money than the people they had to hire to make the tour work! Sad.
The point is that being an artist isn't easy, and the RIAA does NOTHING to make it easier for the vast majority. Only a very few actually get deals that reward them in line with the amount of CDs they sell relative to the amount of work it requires from the artist.
I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed.
Re:Sadly.... (Score:4, Insightful)
A few years ago I saw an estimate that around 100 CDs were being created per day, every day. It seems like a fairly conservative estimate. Assuming that's in the ballpark, in the time it takes you to listen to one CD, around 3 others will have been created. And you can't listen to music 24/7.
Distribution power has tremendous influence on what music will sell. Great distribution power --physical sales and the airplay, good PR, and buzz needed to push those CDs to the register-- requires a lot of capital. It is the exception for heavily marketed product to completely flop: even the worst will go gold if it's crammed down enough throats (thanks, Clear Channel!) I'm not talking postering, I'm talking about pay for play.
The reason you buy bands --the reason you may even identify with them-- is because you found mention of them in the first place. In a world where you're exposed to thousands of advertisements every day, it is far more likely that you came across them in an ad of some sort; or at least the person who told you about them did.
So your expectation for all your money to go to the artist, at least in the case of the RIAA label bands, is misplaced. Don't fool yourself -- most of the capital that gave them the huge sales did not, in fact, come from their musical efforts. They simply have the gratification of being the faces of the advertising campaign that is their latest CD.
Re:Sadly.... (Score:4, Insightful)
The situation you describe also applies very well to writing software, building houses, selling ice cream, and innumerable other professions. Try to go it alone, work with a small company, or work with a big company. Each have reasons that make them good, and bad. This is part of doing business in modern society, no matter what your business is. Why would ye olde Invisible Hand make an exception for the music industry?
"I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed."
Why would you expect that? When you put together the end-to-end costs of recording, producing, marketing and selling a CD, the studio time (including the paying of the session musicians) and the royalties (in which the songwriters, composers, and featured performers are paid) are but a small percentage of the cost.
You probably already know that retail margins are anywhere from 10% (Amazon) to 50% and more (Best Buy, etc.) across all categories. Music is no different. If this is truly pissing you off, how do you cope with the anger of paying 10% - 50% markup for everything you buy?
Re:Sadly.... (Score:5, Insightful)
I think you might have missed an important sentence in the GP post... the one that explains how the corporations can hold a gun to a band member's head. I'll point it out: (emphasis mine)
In the days before the internet, the record labels made life for independent artists as hard as they could, to force them into restrictive contracts. Good luck trying to get any air time on a significant radio station as an independent artist. And the strange thing about bands, is that while you can make money touring, you first have to gain a strong following. To do that, people have to hear you. If you can't get any air time the only way to do that is tour with other bands. But chances are, unless you're very original AND very good, most people will not remember your material nearly as well as whatever song that one of the labels has playing on the radio every 20 minutes all day long. NOT accepting a contract with a record label was a death knell for almost any band. Of course, there is always the possibility of arguing for a better contract, but it's not likely to be improved much, unless you really are very good and very original.
Of course, now with the internet their efforts to lock up the major distribution channels are starting to fail, so they are flailing wildly in an attempt to gain control over this new and unexpected threat. So far, they seem to be having some trouble, and I hope it continues that way.
Funny accounting..... (Score:5, Interesting)
Also remember that both the movie & record distributors have been caught repeatedly doing some very funny accounting in reguards to what makes a 'profit'. Most of the contracts issue an advance followed by royalties after a net-profit has been gained.
ISTR that a producers new Ferrari was once considered an 'expense' in calculating net profits. For a modern example of this look no farther than New Line Cinema & Peter Jackson - LOTR1 is showing $100M+ discrepency in the audit. That's a lot of money to be 'disputed' as an expense - like 2 more movies. Worse, although it's in the contract, NL is trying to bar Jackson from auditing the books on the other 2 movies. We are talking potentially 1/2 of $1B in profits being swept under the table & hidden from the 'Artists'.
Re:Sadly.... (Score:5, Interesting)
Yes, you could possibly justify an anti-trust argument, but how about this broader one. If artists are still entering into contracts with a group of companies that have all been caught cheating on contracts, there must be some unfair advantage to keep them doing it. Whether it's a monopolistic trust that leaves them no better options, or the group otherwise enjoys selective immunity from paying the full price of their contract violations is irrelevant. The government could vigorously prosecute where conduct crosses the line to criminal accounting practices, lieing under oath, and so on, and this would help a great deal whether there is a proven monopoly or not.
Sure, some of it, at least a little, can be blamed on various artist's stupidity. Put a clause in your recording contract that says there will be bowls of all green M&Ms available at all times on the soundstage, and you can expect to pay very dearly for it. Fair enough, but not nearly all the artists are that stupid. Which seems more likely, that there are so many artists too stupid to realize the risks, or that many of them do know they are going to get screwed, but feel like all better alternatives are closed off to them, and hope to be the one who isn't screwed too badly.
Prior post amounts to saying "show me a successful white collar criminal who turned to blue collar methods when they didn't have to, or agree I'm right!" I'm rather surprised you're rebutting only one part of it and letting the rest stand.
Re:Sadly.... (Score:5, Insightful)
The fact that people still sign contracts with these companies is very suggestive that perhaps they feel that there are no alternatives. It suggests that people are resigned to getting screwed over, not necessarily on the contracts themselves, but on how closely those contracts are followed. It suggests that people feel like there is no alternative but to idly sit by and watch the law be broken. I say that this is a very bad thing indeed.
Re: (Score:3, Funny)
If cat-stoking is as illegal in the US as it is in Europe, this might just start a case worth watching.
Re:Sadly.... (Score:5, Funny)
Re:Sadly.... (Score:5, Insightful)
Try Thinking Next Time. (Score:5, Insightful)
You don't just count the people being sued, you have to also consider the great many Slashdotters who believe that any expectation that you pay anything at all for any media that can be digitized equates to misery.
It's more like the 125 million US citizens with an ISP connection that might be wrongly accused and threatened with the loss of all their life savings.
That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.
Yes, I'd like my music to play on restrictionless devices. If you like having to beg permission to play and copy your files or keep running your OS. I'm not sure why anyone would prefer that but to each his own. Perhaps you would like one of Mr. Gates' bed o'nails and pillow full-o-thorns to sleep on?
Bands make money from touring. ... blah blah blah
You don't have a real job do you?
Re:Try Thinking Next Time. (Score:4, Funny)
Re:Sadly.... (Score:4, Insightful)
Nice to see... (Score:4, Interesting)
Finally! (Score:5, Interesting)
Re: (Score:3, Funny)
Is that the one where John Fogerty had to prove he didn't sound like himself?...
Re:Finally! (Score:5, Informative)
Re: (Score:3, Informative)
>>>>>>
Thank you for contacting me regarding copyright protect
Re:Finally! (Score:5, Informative)
Re:Finally! (Score:5, Interesting)
Same goes for the original recordings of some classic albums. I don't want the greatest hits copyrighted from 2006, I want to buy a brand new CD with the same record that I grew up with. Take THAT Corey Hart, you stupid Canadian money grubber. You had what, two records? And one of them was a hit? I want to buy your "First Offense" CD, not the Corey Hart greatest hits. It's absurd that you've even got a greatest hits anyway, when "First Offense" had all of hits anyway.
If copyrights were limited as they should be, Corey Hart would be in the public domain by now, or soon, and I could just get a copy of the CD from anybody.
Right now, I don't have any way to get a legal copy of the CD I want to buy. Thank god I already have the entire run of "The Golden Girls" on DVD, or I would have to wait until the next century for my masturbation material.
Let me be the first to say (Score:3, Informative)
Yay (Score:4, Funny)
Question (Score:5, Interesting)
Re:Question (Score:5, Informative)
Re:Question (Score:5, Informative)
But when the Court's final decision fixing the amount of fees is issued, the details will probably be in the decision.
And if the RIAA appeals, then the underlying papers will be filed as part of the appellate record, and it is highly unlikely that the appeals court would keep them confidential.
Re:Question (Score:5, Informative)
I can't for the life of me fathom what they are doing other than enriching their lawyers. Plus they're ensuring that Ms. Foster's attorney will have a nice payday at the end of this, which will enable her to help many more RIAA victims.
They're turning a $55,000 attorneys fees award into a $150,000 award, and spending a lot of money to do it.
Plus they're ensuring that their fee arrangements -- which they don't want people like me to know about -- will become public.
Go figure.
I've been in the litigation field for 32 1/2 years, and I can't imagine what they are thinking.
But Capitol v. Foster has already given the rest of us a number of excellent judicial precedents, and it seems that more are on the way.
Re:Question (Score:4, Informative)
Would be interesting to know what the full process is though.
In legalese, "Disingenuous" means... (Score:5, Funny)
Why don't "we the people" (Score:4, Interesting)
Re:Why don't "we the people" (Score:4, Insightful)
In older times, this was called a union. Its kindof a bad word today, but in order for artists to get around the RIAA and Tickemaster and any new incarnation of the same, a union may actually be something that can protect their rights.
Re:Why don't "we the people" (Score:5, Informative)
"Guilds" are for artists and creators. Engineers, actors, painters, musicians, and even computer programmers should be in guilds, not unions. (Again, "or not" applies here.)
Unions got a bad name from the corrupt officials in their organizations (past, present, and probably future). Guilds don't have that problem.
Re:Why don't "we the people" (Score:4, Funny)
If I join an engineer's guild, do I get to carry a sword around and wear chain mail armor made of mithril?
Re:Why don't "we the people" (Score:5, Funny)
No, but you do get to carry a gold pen and you get to wear armor for your pocket.
fscking A!! (Score:4, Informative)
Re:fscking A!! (Score:4, Informative)