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ACLU, EFF, & Others Fight RIAA for Debbie Foster
Posted by
CowboyNeal
on Fri Aug 11, 2006 03:46 AM
from the rally-the-troops dept.
from the rally-the-troops dept.
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."
Related Stories
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Interviews: Interview Lawyers Who Defend Against RIAA Suits 289 comments
Attorneys Ty Rogers and Ray Beckerman maintain a blog called Recording Industry vs The People, subtitled, "A blog devoted to the RIAA's lawsuits of intimidation brought against ordinary working people," which was most recently linked from Slashdot on Sept. 10. They've agreed to answer your questions about RIAA suits -- and they obviously will not preface their answers with "IANAL," although we must note that they cannot give specific legal advice about specific cases. For that you need to engage an attorney yourself. (Luckily, their site contains a directory of lawyers willing to defend against RIAA suits.) In any case, these guys obviously know more than the average bear (or lawyer) about how the RIAA goes about suing music fans, how to keep from getting sued by the RIAA, and how to fight back if you do get sued, so we're glad they're willing to help us learn more about this apparently endless legal mess. Usual Slashdot interview rules apply.
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RIAA Wants to Include Song Files it Can't Produce 234 comments
NewYorkCountryLawyer writes "In UMG v. Lindor the RIAA is trying to include song files it doesn't have copies of as part of its 'distribution' argument. The defendant Marie Lindor is asking the Court to preclude them from doing that. She points to the RIAA's own interrogatory response in which the record companies swore that their case was based upon their investigator seeing a screenshot and then downloading 'perfect digital copies'. They produced eleven (11) copies of song files, but want to be able to prove twenty seven (27) other songs for which they can't produce the files."
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News: Does the RIAA Fear Counterclaims? 245 comments
NewYorkCountryLawyer writes, "The RIAA seems to have a fear of counterclaims. In Elektra v. Schwartz, a case against a woman with Multiple Sclerosis, the RIAA is protesting on technical grounds Ms. Schwartz's inclusion of a counterclaim against them for attorneys fees. This counterclaim includes as an exhibit the ACLU, EFF, Public Citizen brief in Capitol v. Foster, which decried the RIAA's tactics as a 'driftnet.' In prior email correspondence between the lawyers Ms. Schwartz's attorney had offered to withdraw the counterclaim if the RIAA's lawyer could show him legal authority that its assertion was impermissible, saying 'I wouldn't want to get into motion practice over a mere formality.' The RIAA lawyer's response was 'I will let you know.'"
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Your Rights Online: EFF Jumps in Against RIAA for Copyright Misuse 147 comments
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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News: Judge Says RIAA "Disingenuous," Decision Stands 195 comments
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.
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Brief Summary (Score:5, Informative)
Alternate Brief Summary... (Score:5, Interesting)
2. The amicus curae is only for award of legal fees to one of the defendants, who was declared not guilty.
3. A lot of lawyers are going to get rich, since a big proportion of the 18,000+ will win.
4. The legal system allows a single rich entiry, the **AA to go after thousands of individuals... many of whom often settle despite being not guilty, because of the costs involved.
5. It is illegal for a large group of individuals to join together and engage in disruptive activities.
6. This brief does nothing to set right points 4 and 5.
7. And so, while lots of lawyers might probably get rich, nothing else significant is likely to happen.
Parent
Re:Alternate Brief Summary... (Score:5, Insightful)
Who's paying these legal fees? Right, the members of the RIAA. When they have to pay defendants' legal fees more often, they will find it is no longer close to profitable to chase individuals.
At that point, these frivolous lawsuits disappear.
Now, the problem is that no court has ruled that the primary lawsuits they've been using as threats for people to settle are frivolous. This is based upon the second lawsuit involving the defendant. What is needed is a watershed case where a judge legally tosses the RIAA out of court for its frivolous suit, and for that case to hold up on appeal. Then there is precedent, and the RIAA will have to screw itself, because even they can;t afford to pay legal fees for thousands of defendants they are wrongfully suing.
Parent
Re:Brief Summary (Score:4, Interesting)
Having lawyers on staff like the RIAA does is probably much cheaper than hiring one ad-hoc like most people have to do.
Parent
Mod Parent Up for Insight (Score:5, Insightful)
Additional considerations:
- 18,000 is just the number of lawsuits filed. How many "settled" by paying some kind of greenmail before a lawsuit was filed?
- From TFA, the range of settlements was $3,000 to $11,000. The average is probably closer to the low end, but might be a few thousand dollars more, which would bump the revenue by 30% ++
- Most likely, there are several attorneys on staff but also law firms in every state that do the actual filings, appearances, etc.
- In-house attorneys probably don't make $250K even fully loaded (benefits, overhead, etc.), but this is offset by the previous point.
It may be just a guess, but who thinks RIAA didn't do a cost-benefit analysis of their strategy before they started down this road? Of course, part of that analysis would have been the revenue they think they're losing (including future revenue) by not contesting file sharing. No idea on that numberParent
Re:Brief Summary (Score:4, Informative)
[Obligatory Car Analogy]
If (say) an 11 year old child steals a car wrecks it, the child is the only one who can be charged with car theft, but the parents are the ones sued for damage to the car. The problem with the RIAA case here is that they claimed the parent "stole the car", as it were.
Parent
Of Course (Score:5, Insightful)
Re:Of Course (Score:5, Insightful)
I don't think a court would call the lawsuits harassment. The real problem here is that even those who are innocent pay up rather than defend themselves due to the cost and risk of doing the latter. In a fair legal system, an innocent man should not feel the need to pay a fee for something he didn't do.
Parent
Re:Of Course (Score:5, Interesting)
In England they bill people falsely imprisoned for their room and board. Commit a crime, get free room and board. Have the state commit a crime against you, get a bill for 100K pounds.
Things actually could be worse here; and I'm sure they will be -- soon.
KFG
Parent
Re:Of Course (Score:3, Informative)
Re:Of Course (Score:3, Insightful)
And this is how it starts.
KFG
Re:Of Course (Score:4, Insightful)
Parent
Re:Of Course (Score:5, Informative)
Further, in the UK it's normal practice for costs to be awarded against the losing party in a lawsuit. That's not all positive since even if you're careful about your costs an opponent with plentiful resources may spend hundreds of thousands on legal costs and if you lose (and you can never be sure in a lawsuit) you can end up liable. So this also acts as a deterrent to "the small guy", but perhaps less so than in the US?
I suspect that the differences between the UK and US systems are the reason we haven't seem similar activity from the Recording Rights Association. Plus the UK legal system can turn quite nasty if they think you're playing games with them like the RIAA do in America. Try the same sort of thing here and a UK judge is quite likely to stamp on you.
Parent
Re:Of Course (Score:5, Insightful)
To someone who regularly deals with things legal - such as a lawyer or judge - a single lawsuit which is without merit is little more than a minor annoyance.
To a single parent whose biggest "crime" to date has been to allow their child to use the Internet without understanding what their child was doing, being threatened with fines of $thousands is scary, and if it's done purely to generate publicity with little or no concern as to whether or not the parent is actually guilty, I'd say it is harrassment.
And I bet you anything you like every single lawyer on the RIAA's payroll is well aware that facing a court of law is a terrifying idea for a layperson.
Parent
Terrifying (Score:5, Interesting)
I've always wondered what would happen if you saved yourself the money for attorneys' fees etc. by just showing up in court and telling your side of the story in 100% not-fancy language.
Say you're the JMRI guy, being sued for patent infringement [chillingeffects.org]. If you were allowed to speak in plain English, the case would last 5 minutes and cost nothing:
"Your honor, you can see that my software was released before their patent was even filed...""Hmm, that seems about right. KAM is pretty-much owned and should pay $100,000 in punitive damages.
I know; the team of lawyers buries you under a mountain of papers, discovery motions, etc. Why can't you say:
"Your honor, they're burying me in discovery motions, etc. to intimidate me into settling. Please make them
stop."And so on. Just wondering.
Parent
Re:Terrifying (Score:5, Insightful)
Where a lawyer can be genuinely helpful is, surprise surprise, in understanding the law: precendents, statutes and the like. The question is not simply "what are the facts?", it is "what does the law have to say about the facts we've established?"
Parent
Re:Of Course (Score:3, Interesting)
Re:Of Course - NOT (Score:4, Insightful)
a) Cities are GOVERNMENTS that are quite capable of
dealing with the "burden" of a lawsuit.
b) An American GOVERNMENT has 0.0 business showing
any sort of public favoritism to any particular
religion, PERIOD.
Sensible Xian fundies are actually the FIRST people
to object to the sort of shenanigan you are defending.
Parent
No Easy Way Out (Score:5, Interesting)
Effect on other cases? (Score:3, Interesting)
NOt living in the US, I'm not sure how the legal system entirely works in the States, but could this, assuming she wins her suit, have an enjoining effect on the RIAA in other cases that have brought with similar (lack of) evidence?
Would be fantastic to see them crushed down.....!
Corporate Bullying (Score:5, Interesting)
For instance: How many people are presently incarcerated without having had a fair trial (not counting any Guantanamo Bay style prisoners of course, that's a different story).
How many people have ponied up cash to SCO because of their outrageous claims about Linux IP? This sounds a lot like the bullyboy who takes your lunch money.
Yhe RIAA can't honestly think they will stop filesharing because they will have to sue millions for this message to effectively be driven home to Joe User. And the few thousand quid they win on each case will barely cover the administrative and investigative costs they make, so there's a
The flip side of that injustice (Score:3, Interesting)
It's funny, I was actually thinking about the other side of the injustice that court settlements encourage: failure to fully prosecute people for crimes. With a settlment, especially a plea bargain, never get the satisfaction or the social benefit of the guilty being fully punished for their crimes.
Worse yet, we lose the notion
Re:The flip side of that injustice (Score:5, Interesting)
If citizen wants to sue a corporation, they simply form their own corporattion and capitalise it with sufficient funds to litigate.
NB This doesn't mean citizens get to break the windows of the corporate HQ with impunity (the corp reports them to the police), just that corporations can't force citizens to submit to the gross inequity of their litigation budget.
The other thing to do, of course, is to abolish copyright.
Parent
Re:Corporate Bullying-Slashdot Lawyering. (Score:4, Insightful)
The social cost of suing or prosecuting individuals for non-commercial copyright infringement of music far outweighs the social value of having copyrights on music to begin with.
Metallica is not worth the ruination of lives involved, or the interference with other industries (namely mine) that the RIAA dreams of implementing.
Parent
Why didn't this happen before? (Score:5, Interesting)
By uniting the elements opposed to them the RIAA loses some of its advantage, even more so by breaking the back of one of it's most pointy sticks, the dodgy litigation techniques, so far no one has had the knowledge or money to attack this but lets hope this is the beginning of an effective counter-attack.
Re:Why didn't this happen before? (Score:3, Insightful)
Bingo! We need to form the MCAA - Media Consumer's Association of America, get Congress to insist on a levy on blank tapes and CDs and DVDs etc in order to to allow the members to participate in [rampant piracy] exercising their rights and be indemnified for all their legal costs!
Why is maffia even legal? (Score:3, Interesting)
Oh, RIAA, what won't you do... (Score:5, Insightful)
It's like a rape victim taking the rapist to court and proving to be so vile and vicious as to turn the public in favor of the rapist (real mass pirates, not individuals, in terms of metaphor), and get pro bono law groups to back up the sonofabitch too! Astounding, I say. Well, that's what happens when you screw over everyone you come into contact with and try to crucify the innocent instead of behaving civilly about the matter and going after real pirating rings. Silly suits, instant gratification in greed and money will mean your doom... particularly when you have nothing to do with music itself, aside from litigating and controlling it for profit.
I tell you what, if I were in charge of any company with a product line that could be easily pirated, I'd be suing the RIAA for making piracy more publicly acceptable through their corporate grotesqueries of lawsuits and such. I'm sure you could find a lawyer with a sharp enough tongue and wit to word it quite well.
Re:Oh, RIAA, what won't you do... (Score:3, Interesting)
But you have to admit, the RIAA's position on the issue paints them into a corner that practically forces them to act in this manner (not that I'm in any way sympathetic!). Think about it; if your legal argument is essentially that a 'culture of piracy' is making devaluing your work product through unlicenced non-fair use copying culturally acceptable to the point where Joe and Jane Citizen don't think much of it, and piracy itself is almost trivially easy despite attempts at copy protection, what option do
Re:Oh, RIAA, what won't you do... (Score:5, Informative)
One does not lose copyright by failing to defend it (unlike trademarks); or "selectively" defending it. They might have a problem establishing damages if they were inconsistent, but again there are statutory damages for sopyright infringement.
Parent
The good old days (Score:4, Funny)
One wonders if the law exists to keep lawyers rather than the other way around.
Secondary liability (Score:5, Informative)
So, I have a wife and two adult university students living at home. The RIAA asserts that I am responsible for their online activities. That means that I have to read all their posts and emails. I don't think so.
The RIAA has already lost their case. What we are arguing about here is that they should pay the defendant's legal fees. What we need is for the court to decide that the RIAA's theory about secondary liability never had a basis in law and that their case is essentially frivolous.
On Groklaw there has been some discussion of frivolous cases. There are punishments for lawyers who bring frivolous cases. If the RIAA's lawyers were sanctioned for cases like this, that would really make them think twice before going after the obviously innocent.
Re:Secondary liability (Score:3, Informative)
Not only that, but you also have to make sure your wireless router is locked down with top-notch security, so your neighbors and wardrivers can't steal, either.
-Eric
A lot like the McLibel case (Score:5, Insightful)
What proceeded was the longest ever court case in British legal history and in the end the court agreed that indeed, McDonalds do, quote: "exploit children with their advertising, falsely advertise their food as nutritious, risk the health of their long-term regular customers, are "culpably responsible" for cruelty to animals reared for their products, are "strongly antipathetic" to unions and pay their workers low wages."
From http://www.mcspotlight.org/case/trial/verdict/ind
So not only can uninformed consumers not make a good choice, but when people try to inform consumers of FACTS, money-laden corporations can shut them up most of the time. So on the whole, markets don't work properly in these cases because no consumer can be adequately informed about absolutely every product that some corrupt corporation is selling.
Likewise with the RIAA Mafia, most people cannot afford to defend against them or have the money to inform the public of the other side of the story - i.e. how the damage that RIAA claims P2P causes is largely exagerrated.
It's only the free market fundamentalists that think markets are sacrosanct, and "informed" consumers can defeat corrupt organisations through consumer power, despite the wealth and power of some of the players involved. Unfortunately, there appears to be rather a lot of those in America. No wonder the Middle East thinks America's corrupt.
Re:A lot like the McLibel case (Score:3, Interesting)
Americans spend $30 billion a year on lotto tickets.
We could buy a record label every year with that kind of money.
Why do we have to be "informed"? Someone start a website buysony.com and start soliciting donations. Turn donations into stocks held by all donors equally. Make it fun, have polls, but always encourage the continual donating of money to buy stocks, which you hold in a trust. Then you can all act as a single interest in Sony's stake.
Eventually you can probabl
Cravath, Swaine and Moore (Score:3, Interesting)
Can they get Cravath, Swaine and Moore [cravath.com] to provide some input into the brief also? They've provided several wonderful briefs in the SCO vs IBM case. If anybody can present a watertight legal argument, CS&M can. I'm just a bit worried that the brief as it stands contains too much emotive language and spends too much time appealing to the judge's sense of "the greater good".
IANAL, but IMHO judges don't care about "the greater good" unless it's a claim before them; I expect this judge will ignore all the emotive arguments and get right down to the question of whether it's legal to award attorneys' fees to the defendant, including whether the appropriate standard for awarding has been met.
I also expect the judge to try very hard to make the narrowest possible ruling. Judges don't like setting precedents; the bigger the precedent, the less the judge likes it. This brief strikes right to the heart of the Adversary legal system, namely that poor defendants have little access to the courts and can be easily abused by rich plaintiffs. The judge will want to stay way clear of upsetting that status quo.
RIAA Profits (Score:5, Informative)
two points (Score:3, Interesting)
Second: "Though the RIAA has the right to enforce its copyrights through lawsuits and settlements, it does not have the right to do so against people it knows or reasonably should know are innocent."
The RIAA may be stupid, but that doesn't mean it is entirely wrong, and not all of its lawsuits are misdirected. Copyrights put paycheques in peoples' pockets, including software designers, game designers, graphic designers, and countless others.
In a sense, the RIAA is going to bat for all these people, and that is a double-edged sword. Their idiotic approach to defending copyright has caused at least as much damage as it has prevented. They need feedback from people/industries with a vested interest, feedback other than "RIAA sucks!" or "Music should be free!", and they need to listen to that feedback.
Re:two points (Score:4, Interesting)
It works quite similar to that in German courts. First of all, the court decides how much money is argued about (if I say I want you to pay $1 mil, then we argue about $1 mil). Then he takes a chart, which says: For a one million dollar case, plaintiffs lawyers can charge $20000, defendant lawyers can charge $20000, court charges $20000 (actual numbers could be different). You can't stretch out a case infinitely because the judge won't let you create three years work for $20000. In the end, the court decides who was guilty and what has to be paid. Now say you wanted $1000000, and the judge says that you win, but the million dollar was nonsense, you get only 10000. Since I have to pay one percent of what you demanded, I also pay one percent of the court cost, one percent of your lawyer, one percent of my lawyer, and you pay the rest. Obviously people know that, so they don't try to get unreasonable amounts. If you win the case as a defendant, you pay nothing, but you might end up paying little even if you lose. And the lawyer cost is limited.
Parent
They aren't "going to bat" for the producers... (Score:3, Informative)
left and right over this BS. No, I don't think that illicit file sharing (and there's a distinction there)
is right and that "Music should be free!) but in the same breath, suing the customer is rarely a good thing
especially when the person in question obviously didn't do what they're claiming. They're setting the
financial bar high enough that people just "settle" out of court instead of defend themse
Re:two points (Score:4, Insightful)
The downside to your proposal, You do minor damage to my car,, say $200.00, I have an attorney on retainer, for my business, so I have my attoryne spend 200 hours procecuting the case ath $300/hr, so you owe me after I emerge victorious, $60,200. and I just saved myself two monts retainer, And no I won't use small claims because I cannot use my attorney there, and the whole point of the law suit is to exceed my retainer. (the actual damages are just incidental.
Many people suspect that your proposal would lead to litigation that is aimed at reducing legal costs,
Parent
Wreaking havoc in people's lives (Score:5, Interesting)
Recently, when I appeared in court in Warner v. Does 1-149 [blogspot.com] in Manhattan, Judge Owen said, in words or substance, "so they want to find out this person's name and address so they can take his deposition, what's wrong that?" I responded, in words or substance, "No, judge, that's not what they're going to do. They don't want to take this person's deposition. They are going to sue these people, bring lawsuits that wreck people's lives." The judge then said to me "what are you talking about, wreck people's lives?" I proceeded to tell him how these lawsuits affect the poor people that are targeted, and he cut me off, did not allow me to finish, and said that because I used the term "wreck people's lives" he wouldn't believe anything further I could say.
It was therefore quite gratifying to me personally to read the following passage in the amicus brief:
Re:Wreaking havoc in people's lives (Score:5, Funny)
Will someone please think of the Grandparents?
Parent
I smell class action (Score:3, Insightful)
From the motion:
And inevitably, that would be the fatsest way to deal the **AA a blow -- if everyone sued wrongfuly joind together in a class action civil suit and sued them for an outrageous amount of money. They wouldn't get the outrageous amount of money, but the trouble with this whole process has been that there's really no mainstream publicity of the matter. A class action suit might change that. Of course if you really wanted to stick it to the **AA, sic NY Atty General Spitzer on them.
Re:ACLU and attorney's fees (Score:5, Insightful)
It may seem shady business to you, but that is the way the rules are written for cases involving . . .
(C)ivil (L)iberties.
And the ACLU did not make those rules, the state did. And I'm glad they made them that way.
KFG
Parent
Re:ACLU and attorney's fees (Score:4, Informative)
Basically what im saying is that by sueing for lawyer fees after winning pro bono work to protect people's civil liberties they are also protecting your pocket book.
Parent
Re:ACLU and attorney's fees (Score:3, Informative)
As far as I can tell "pro bono" really is "for free". At least in the US it's not common for the judge to award legal fees; it has a chilling effect on poor people suing rich people. It's SOP in Great Britian, IIRC, but IANAL.
Re:ACLU and attorney's fees (Score:5, Informative)
Pro bono (pro bono publico) means that the lawyer is not charging the client. Pro bono does not mean that the laywers can't get attorney's fees awarded to them by the judge.
Parent
Re:AMICUS and attorney's fees (Score:5, Informative)
However, they do want a particular outcome: sticking it hard to the RIAA. Therefore they have filed their own legal statement trying to aid Ms Foster (and her lawyers, whoever they are). Whether they succeed or not, they don't get any money from anyone in the case.
Parent
Re:ACLU and attorney's fees (Score:4, Insightful)
I really don't understand your first paragraph at all. The ACLU is an organization with a long history of fighting for civil liberties. Why would you slam them because once in a blue moon they actually get paid a small portion of the expenses involved in their work, instead of the money having to come from their contributors? And why is it wrong for someone who is proved to have violated someone else's civil rights to have to pay all or part of their attorneys fees in vindicating their rights? And why is it wrong for our laws to occasionally shift the attorneys fees to the guilty party, in order to give legal aid lawyers, litigants, and others an incentive to take on a cause where the other side has much more money? Attorneys fees statutes are equalizers between big and small, which is what our country -- and our courts -- are supposed to be about. Contingent fees, and fee-shifting statutes, are the one small exception, one small dent in the rule which otherwised prevails more often than not in the U.S.: whoever has the most money has the best chance of winning in court. I.e., they are a step up from the law of the jungle, that might makes right. Would you have us step down? If not, you shouldn't slam them for fighting the good fight and once in a while getting a little bit of their fees paid back.
Parent