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EFF Jumps in Against RIAA for Copyright Misuse 147

Posted by Zonk 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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EFF Jumps in Against RIAA for Copyright Misuse More

EFF Jumps in Against RIAA for Copyright Misuse

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  • Comment removed (Score:3, Funny)

    by account_deleted ( 4530225 ) on Tuesday April 10, 2007 @04:23PM (#18682151)
    Comment removed based on user account deletion

    • 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 ) <[moc.oohay] [ta] [45ttam.yrrep]> 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:2, Insightful)

          by Anonymous Coward
          ...they considered this collateral damage legitimate.

          Aah, the old "Timothy McVeigh" defense.

  • 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@nOspAm.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)

            by kcbrown ( 7426 )

            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

            • Re: (Score:2)

              by plover ( 150551 ) *

              The only way to really kill the RIAA is to break through its corporate veil and nail its members.

              ...with a wooden stake. Don't forget the wooden stake. That's the most important part, because they'll just rise from the grave [ananova.com] if you don't. Although maybe exposure in full sunshine will do them in too, I never remember which remedy works best on which kind of monster.

              • Don't forget the wooden stake. That's the most important part, because they'll just rise from the grave if you don't. Although maybe exposure in full sunshine will do them in too, I never remember which remedy works best on which kind of monster.

                Drive a wooden stake through whatever passes as the heart, cut off the head, stuff the mouth full of garlic, burn the remains, expose the ashes to direct sunshine for at least three hours, sprinkle them with holy water, bury them in consecrated ground and build

            • there really is no other point than to make the mass-public opinion known and kill these people outright. They have the balls to restrict their own buyers by foul illegitimate licenses? fuck that noise, kill them all and let God (and applicable law concerning 1st and 4th amendment rights [since the gov't decides that your property is their property,]) or some other recognized higher power sort them out. Seriously, they need to shut the fuck up and quit trying to control us, unless we fight for the ability

          • Re: (Score:2)

            by Thuktun ( 221615 )

            Since acting as its members' copyright-enforcement organization is virtually the entire function of the RIAA such a decision would utterly sink it.
            No. It also lobbies Congress, and without copyright enforcement chewing up resources, it could focus all its time and energy on that.

        • Re: (Score:2)

          by Builder ( 103701 )
          What makes you think the RIAA _have_ any copyrights? They don't! The labels that are member companies have copyrights.

          I really wish we would stop lumping these all together so that the record companies are shielded.

    • Re: (Score:2)

      by Thaelon ( 250687 )
      [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 (Score:5, Funny)

    by Weaselmancer ( 533834 ) on Tuesday April 10, 2007 @04:32PM (#18682291)

    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?

    • There's a thought. (Score:3, Interesting)

      by geekoid ( 135745 )
      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)

        by Workaphobia ( 931620 )
        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.
        • The record labels own the rights to the recordings. The rights may be shared with songwriters & publishers, sort of--recording rights are built off publishing rights.
          The labels don't share copyrights with the artists if they have a choice. When the artists have a share of the copyrights, then the labels have to pay them more & sooner.

      • Re:There's a thought. (Score:5, Insightful)

        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
        • "The artist can retain ownership, but then he would have to not claim copyrights" You contradict your own self. Now explain yourself out of a paradox concerning customer influence. HINT: You're not gonna accomplish it.

        • 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.

          • Re: (Score:2)

            by arth1 ( 260657 )

            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.

            I never said it had to be applied for. It's automatic upon publishing the work to the public. If you don't publish the work to the public, it's not protected by copyrights, but then you can instead claim it's stolen.

            The code I have here on my computer that I've written myself are NOT protected by copyrights. If I were to publish the code, it would be. But if someo

            • Hmmm... copyright law varies a bit from place to place. In the UK, copyright applies to any work you create at the moment of creation. So code I write on my computer IS protected by copyright, as soon as its written, without having to do anything, or without having to publish it. If my computer gets stolen, and I hadn't arranged for any proof that I wrote it, I may have a hard time proving I wrote it though - so publication may help you there. Or a copy can be placed in escrow.

              The GPL works because of c

            • I never said it had to be applied for. It's automatic upon publishing the work to the public. If you don't publish the work to the public, it's not protected by copyrights

              In the United States this isn't true. A work is considered copyrighted upon the moment of creation, whether or not it has been published. Publication used to be the standard, but not for many, many years. Publishing a work, however, makes it easier to establish the legitimacy of your claim to ownership, and actual registration with the

      • Re: (Score:2)

        by rm69990 ( 885744 )
        You can't get "convicted" or be "guilty" of anything in a civil case. And to the best of my knowledge, criminal cases cannot be brought against corporations (would be nice though).

      • Re: (Score:2)

        by rm69990 ( 885744 )
        Whoops, didn't put everything in my last comment.

        No, a finding of copyright misuse does not place the work in the public domain. It is similar to sitting on knowledge of copyright violations for 10 years and then deciding to go after the infringer, you may be prohibited from asserting your copyrights against that infringer but you don't lose the rights entirely. You could still sue someone else.

    • 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.

  • Tides are turning but what next? (Score:4, Interesting)

    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)

      by rm69990 ( 885744 )
      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)

        by Kadin2048 ( 468275 )
        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

        • Re: (Score:2)

          by rm69990 ( 885744 )
          So people that own wireless routers that use, let's say, WEP encryption which is woefully insecure are going to be expected to write their own encryption scheme and replace WEP with it? While the RIAA will no doubt push for laws like this, I simply don't see them passing, especially with a democratic congress in power.

          Not that I care, I live in Canada. If the US wants to litigate themselves into the stone age, they can do just that. Our lawmakers up here are insane, but not as insane as U.S. lawmakers :-P
      • It occurs to me that the real problem here is that none of Congress have been victims of hacked routers, RIAA lawsuits, etc. Were they to experience firsthand what they've wrought, mayhaps they'd begin to oppose it.

        I recall an interview with former Senator McCarthy, in his day one of the worst offenders in helping pass legislation that crippled business. After he retired, he got the notion that he'd like to buy and operate a nice midsized independent hotel... and found that thanks to the legislation HE had
  • 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.

      • I'm pretty sure a lawyer answering that question would run afoul of ethics rules.
        Ethics? I'd be worried about liability. You know how the messages are sig'd "I am a lawyer. I am not YOUR lawyer. This is not legal advice". Liability, baby.

        • Re: (Score:2)

          by Reziac ( 43301 ) *
          Another reader of Cpt.Kangarooski :) (sp?)

          Not only an ethical issue for the lawyer, but certain statements, if made in public, could jeopardize ongoing and even future cases.

           

    • Re: (Score:2)

      by thewils ( 463314 )

      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

    • 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.

      • i understand perfectly

        (wink, wink, nudge, nudge)
        • I still don't know what you are talking about. I'm starting to assume you're an RIAA troll.

          I don't know what you mean about downloading from a file sharing site.

          If you're asking me whether you can infringe copyright and get away with it by some legal maneuvering, the answer is no.

            • 1. I still don't see your name there. Your profile gave 3 websites, but I didn't see your name on any of them. In any event, I am satisfied that you are not an RIAA troll.

              2. In any event, this generation of law suits has nothing to do with any downloading "sites"; it is about peer-to-peer file sharing which does not go through any sites, but it computer-to-computer.

          • Re: (Score:2)

            by Reziac ( 43301 ) *
            Nah, CTS isn't a troll. Been here a long time, usually fairly sensible.

            I think the problem is that a lot of young people (and slashdotters tend to be young and often very lacking in realworld experience) have this "you are either WITH me or AGAINST me" mentality -- so they don't quite grok that defending someone against copyright *abuse* is NOT the same thing as encouraging copyright infringement.

            And I think that was the parent post's real question (however snidely worded) -- to the effect of "If this EFF a
            • Thanks, Reziac.

              I don't know why this motion would 'cripple the RIAA's lawsuit engine'. It just has to do with the simple right to interpose a counterclaim.

              I can't imagine why the RIAA is even moving to dismiss, other than to raise the ante on the legal fees, which seems to be its usual M.O.

              Assuming the judge denies the RIAA's dumb motion, he's not going to rule in defendant's favor dismissing the case. He's just going to say, OK the counterclaim stays.... now defendant has to prove it.

              That's not a big deal.

      • Unfortunately, I think he was asking if a person who was guilty of copyright infringement could get away with it because of the unscrupulous RIAA tactics in prosecuting the cases.

        Alas, I'm not sure he was aware that no reputable lawyer will ever advise you to break the law, although I should hope he was aware that you are, in fact, a reputable lawyer.

      • Re: (Score:2)

        by xtracto ( 837672 )
        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.

        Incredible how many bullshit can lawyers write without meaning anything. Thats some good 1337 speak.

        Don't get me wrong, my best friend is a lawyer (yeah slashdot crowd, it is true) and we are friends since we were just kids, and he also tends to speak like you =o)

        p.s. Thanks for your insight in the RIAA's cases, it is always funny to watch how people sue each other over there in the U
        • OK OK let me speak plainly.

          I had a tough time writing that, actually, because I didn't want to sound mean.

          So I had to rephrase it.

          In my own words: "it was a dumb question, possibly written by a troll trying to bait me".

    • Re: (Score:3, Insightful)

      by presidentbeef ( 779674 )
      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!

    • Re: (Score:2)

      by rm69990 ( 885744 )
      Why was this modded insightful? I certainly don't feel anymore enlightened after reading this post, and it sure didn't provide an insight into anything that I'm aware of.

      Not that I don't agree with the original poster, but come on, why waste mod points when there are plenty of more useful comments that still have a rating of 1 or 2???

  • Chicken of the Sea (Score:3, Informative)

    by vague_ascetic ( 755456 ) <va.impietease@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.

  • for my United Way Capitol Area monthly contribution are Austin EFF and Austin ACLU...

    Charles
  • To disallow such claims, by contrast, would allow Plaintiffs to play a nefarious "wait-and-see" game: those that expend the money on attorneys' fees and costs to fight back against the bogus suits would find their cases voluntarily dismissed without recompense, while those who did not fight back would end up having to submit to either an unfair settlement or default judgment.

    That absolutely says it all. If we have any hint of a fair legal system in this country, such a situation as above cannot be allowe

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