Why Are RIAA Supporters So Scared Of What Actual Musicians Think?

from the interesting... dept

Last week, I wrote a post about the idea for something called Project EquilibRIAA. The idea was to reach out to the various musicians whose music was used in the trial against Joel Tenenbaum and here what they felt about it. Obviously, this had no legal basis, but was interesting from a cultural perspective, especially considering that just a day earlier the RIAA had declared that the trial wasn't about the RIAA but about how "Joel Tenenbaum and his egregious illegal behavior which robs artists and music creators of the right to be paid for their work." So, according to the RIAA, it's about the artists and their music, and I thought (as did the original poster of the suggestion) that it would be interesting -- no matter what they said -- to hear what musicians thought about the whole trial. No one suggested that it would have any bearing on the outcome. We just thought it would be a good experiment.

But what amazed me was the vitriol in the comments from the standard (small) group of RIAA supporters concerning this idea, and their absolutely dripping contempt for the actual musicians. Some samplings:

Comment #2: "It is entirely irrelevant, as the artists have signed away many of their rights (including those things that Joel was sued under). It would sort of like putting a dairy farmer in touch with a kid who stole milk posters at school. The relationship isn't relevant.

Comment #11: "I suspect you will get "wanna be cool party line" stuff, as each artist will dump a little crap on the RIAA, and then quietly cash the checks they keep getting."

Comment #12: "The artists don't have any rights. I don't care what the former owners of my car think about whether I've been maintaining it well or not and I don't care what the creator of a song who assigned the rights to someone else is now having cold feet about taking money from a record company. Bought, paid for, gone."

Comment #17: "What the Artists think doesn't mean crap. They all signed the distribution rights over to the record labels, and they are the ones that were wronged. I could care less if the artist stood on stage and told everyone to download their music, if they signed the distribution rights away, they are equally guilty of copyright infringement by telling people to download the music too."

This fascinates me. Statements like "it is entirely irrelevant" and "the artists don't have any rights" pretty much makes the point right there, doesn't it? These are the same people (yes, with the same IP addresses) who yell and scream about how what we discuss around here is insulting to artists and an effort to take away their "right to get paid." If this is all about respecting artists and helping them get fairly compensated, why are they so damn afraid of actually letting them speak? And why do they treat them with such contempt?

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Project EquillibRIAA: Putting Joel Tenenbaum In Touch With The Musicians In Question

from the good-idea? dept

Not sure what I think of this, but Michael Scott points out a project being set up to try to put Joel Tenenbaum in touch with the musicians whose music he downloaded and shared. The idea is to find out what the musicians think of the RIAA's lawsuit and the $675,000 fine. After the Jammie Thomas ruling, for example, Richard Marx, one of the musicians whose music was involved, came out and condemned the RIAA's action. Considering that the RIAA is out there claiming this is all for the artists, it would be worthwhile to find out what those artists have to say.

I have to admit that I hadn't looked at the actual list of 30 songs that were a part of the trial, but I'm pretty surprised to see some of the names on the list. For example, it includes Nine Inch Nails -- and we've already had plenty of blog posts about Trent Reznor's new business models which succeed by encouraging file sharing, recognizing that with more people listening to the music, there are many other creative ways to make more money. In fact, Reznor famously has told fans at concerts that they should download the music that was released under his (former) major record label. I'd love to see the RIAA let us know how much of the $675,000 will get to Reznor. The spreadsheet on the Project EquillibRIAA also lists Radiohead (who has spoken out against the RIAA tactics) and Courtney Love (who has been very explicit in condemning the RIAA's actions since way back in the Napster days), though I don't see either of them actually listed on Joel's list.

Either way, I agree it would be interesting to see what the musicians have to say -- whether they agree with the RIAA's strategy or not... and if they expect to see a dime of the $675,000.

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More On Deserving To Get Paid

from the vs-infringement dept

There's been an interesting discussion concerning my post taking the RIAA to task for various (incorrect) "FACTS" it listed about Joel Tenenbaum and his case. As expected, of course, not everyone agrees with me, but there's a point of disagreement that I wanted to focus on, because I think people are merging two ideas in their minds, and it's clouding their judgment:

1. There's the issue of whether or not Joel Tenenbaum had the right to download or share the songs that he did. On that we absolutely agree that he broke the law. No questions at all.
2. There's a separate issue of whether or not the RIAA "deserves to get paid" for its music.

The folks who are arguing against my point combine these two as a single point, and say that if Joel downloaded/shared the music then the labels "deserve to get paid." My argument is that those are two separate discussions. We agree that Joel broke the law. But that doesn't mean that the record labels "deserve payment." There's no indication that Tenenbaum would have bought CDs in absence of the songs being available online. The labels have a job to do, which is putting in place a business model that gets them paid. And they're failing in doing so, which is why their financials are looking so pitiful these days.

I recognize that it's difficult to separate out these two issues, but it's important. If you understand that these are two separate issues, then you recognize that this is a business model issue, not a legal one. If you recognize that these are two separate issues, then you recognize that it's not about "deserving to get paid" and there's no "we had no choice but to sue." Instead, you recognize that the issue is that the labels have failed to put in place a business model, and their response has been to fight the wrong thing. It's to legally go after the people who wish the labels had put in place a better business model, rather than actually putting in place a better business model.

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No, A Jury In A Trial Is Not A Representative Sample Of Views On Copyright

from the nice-try-though! dept

After the Jammie Thomas trial, the RIAA tried to claim that the juries in both her trials represented a representative sample of the nation's views on copyright law. Now, following the Joel Tenenbaum trial, entertainment industry lawyer Ben Sheffner is making the same claim again:

On the Internet, (almost) everyone hates copyright. In fact that's one of the reasons I started this blog. Every day, for years, I would read about how copyright is stupid, outmoded, destructive, and downright evil. But I knew that the "law" I would read about bore scant resemblance to the actual law, and the way that businesses that earn revenue from production and exploitation of copyrighted works actually function. And I knew that not everyone harbored such vitriol and venom for the copyright owners, who routinely win major victories in the courts and the political arena.

The Jammie Thomas-Rasset and Joel Tenenbaum verdicts have highlighted this chasm between the "Internet" view of copyright, and what average citizens think of the topic. Now three juries, made up of 34 ordinary people from the Minneapolis and Boston areas, none of whom had any connection to the entertainment industry, have passed judgment upon use of p2p networks to obtain music without paying for it -- an activity that is excused, or even celebrated, in many quarters of the web. And all three of those juries demonstrated through the very large damages awards they imposed that they view illegal downloading and "sharing" as wrong, and deserving of harsh sanction.

While I'm sure that sounds good and is comforting to folks who make their living by profiting off of government granted monopolies, it's not even close to accurate. First of all, a jury is hardly a representative sample. The lawyers on both sides work hard to weed out those who actually are knowledgeable on these topics. In the Tenenbaum case, for example, any juror who admitted to using any file sharing apps was ruled out from serving on the jury. I have no problem with this from a legal standpoint, and totally understand why it happens, but it highlights that these juries are not a representative sample by any means.

Second, trials have very, very specific rules (many of which Tenenbaum's team tried to break), which limit what sort of information you can share about various issues. So at no point could there be a real conversation on copyright or business models. The jury was not an informed audience.

Third, Sheffner tries to use the fact that all three juries did not assign the statutory minimums as a sign that they felt that file sharing deserved harsh punishment, but again, that's not necessarily true (though, certainly it could be). There's a tremendous amount of evidence out there on jury decision making, and the award amounts that juries give can be heavily influenced by numerous factors, including something as simple as the numbers tossed out by those involved in the case. A few separate studies have shown that when numbers are discussed, it gives the jurors an anchor and they just see those numbers as acceptable, rather than comparing the numbers to the actual crime. Given that, the fact that the jury chose a number towards the lower end of the statutory range suggests that the jury actually didn't think the punishment should really be that harsh.

Fourth, in both of these cases it was clear that the defendants broke the law. The jury's job is made clear to them, and it is to make a determination on the law (and in the Tenenbaum case, even that was taken out of their hands by Tenenbaum's admission). Saying that this is somehow representative of the actual views on the activities is again, quite misleading.

Fifth, it's no surprise that those who don't follow these issues closely believe the idealistic story about copyright being an undeniable good thing. It's what most of us were taught, and if you don't know the details or haven't been directly impacted by draconian copyright laws, you probably believe that myth that many of us were taught from a very young age. So you put a bunch of those folks together on a jury, limit their ability to be educated, and of course they're going to default to thinking "copyright = good."

Over the years, I've found that most people who don't pay much attention to these things believe that story of copyrights and patents being the "root cause" of American creativity and innovation. It's a fable that sounds so good as youngsters, and why not? Yet, when you talk to such folks one on one or in small groups, and start going through the real details... and when you explain to them how copyright is used to stifle speech and innovation, and when you show them the new and unique business models that don't rely on copyright, they recognize the issue. When you finally show them the evidence -- the studies upon studies about the harm done by such things, it's not hard for them to realize that there's a real problem with copyright laws, and that problem isn't the fact that some kids aren't paying for downloads.

The only people I've found who resist such things are those whose own income in some way depends on exploiting copyright for their own advantage. There may be others, certainly, but in my experience it's incredibly rare. Not only that, but I've actually found that even within much of the entertainment industry, there's an understanding of this as well. I can't even begin to tell you the number of industry insiders who pull me aside at entertainment industry events to say (quietly) that they agree with a lot of what I say, but there are too many legacy issues to deal with to move forward strategically.

So, claiming that these juries are somehow representative samples of the views of people on file sharing is not even close to being accurate, no matter how much a small group of entertainment industry lawyers hope it's so.

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Correcting A Few 'Facts' From The RIAA... For Which We Feel We Deserve Payment

from the we're-waiting-for-the-check... dept

After the Jammie Thomas ruling, the RIAA kept its typical gloating to a minimum, recognizing the PR disaster that the nearly $2 million judgment presented for its already widely disliked members. A few mistakes slipped through, but for the most part, the RIAA kept pretty quiet hoping that Thomas would settle rather than appeal (that didn't work). However, with the Joel Tenenbaum ruling, it appears the RIAA is going in a slightly different direction, posting a snarky blog post about Joel supposedly under the guise of "facts." Now, I've been clear that I think Tenenbaum never should have gone to trial and should have settled a while back. As more facts became clear in his case, it made little sense for him to fight against the RIAA. He broke the law and admitted it. You're not going to get very far fighting in court on that front. I think he's a bad test case (and had terrible legal representation).

So I can see where some of the opening comments from the RIAA's Cara Duckworth come from (basically trying to tear down Joel). But, for the life of me, I can't figure out what good the post does for the RIAA. It's a rather typical tone-deaf pronouncement from a group that's been about as tone deaf as it could possibly be to consumer desire for over a decade. To the people who already support Joel, it comes across as yet another attack. To people who already support the RIAA, it adds nothing new. To people in the middle... it just looks mean to attack this guy. Yes, Joel broke the law. But he was fined $675,000 for 30 songs (and, yes, the RIAA tries to point out that he downloaded/shared much more, but if that's their point, they should have sued him for that as well). Plenty of people see that punishment as totally out of line with any sense of reality. There's a tremendous amount of evidence that file sharing has not been a problem for the music industry -- it was a failure of the labels, often at the urging of the RIAA itself, to embrace new technologies and new business models.

And rather than recognize that, it now wants to smack around a guy they may have just sentenced to a life in poverty? That'll win over supporters...

I can't believe it needs to be said again, but you DON'T win customers by suing the biggest fans of your product. You DON'T win customers by doing everything you can to hold back innovation unless its under your terms. You DON'T win customers by exacting a massive pound of flesh and overvaluing your contribution over everyone else's.

As for the specifics of the RIAA's "facts" they get a bunch wrong. For example:

FACT: As much as he wants to make this into one, this is not a crusade against the RIAA or the laws that protect creators. This is not about us. It's about Joel Tenenbaum and his egregious illegal behavior which robs artists and music creators of the right to be paid for their work, and robs record companies of the ability to invest in new artists and bring new music to the public.

That's not a "fact." That's very much an opinion, and the second part of it is flat-out wrong. It's not a fact, it's a lie. Tenenbaum's actions robbed no one. No one has a "right to be paid for their work." You have a right to try to convince people to buy, and the RIAA and its labels FAILED in convincing Tenenbaum to do that. But that's the market at work. Today for lunch I may pick the deli rather than the pizza shop next door. Based on the RIAA's logic here, I have just "robbed" the pizza place of its "right to be paid" for its work. There is no right to be paid. Only a right to try to convince people to buy. As for "robbing the ability to invest," again, please explain how people choosing not to buy your product is the fault of the people not buying? If you simply put in place business models that work (which we point to all the time, showing artists who embrace file sharing and make more money because of it), there would be plenty of money to "invest in new artists."

And, of course, the woe-is-us routine is bogus as well. As we've seen in two recent studies (the latter from the music industry itself), the music ecosystem is thriving. More money is going into music and music-related goods than ever before. It's just that less and less of it is filtering through the RIAA's labels who (oops!) have a nasty history of not actually paying their artists money they owe them. The idea that not giving money to the RIAA somehow means less music will be brought to the public is laughable. It's not a fact, it's pure propaganda. Thanks to these same new technologies that the RIAA has tried to kill off, it's easier than ever for bands to create, promote and distribute music. And because of that, there's more new music out there than ever before.

Hey, let's agree on the fact that Joel broke the law and it was silly for him to go through with this lawsuit. Done and done. But don't spew a line of pure bull that this was ever about investing in artists.

FACT: Mr. Tenenbaum has put forth the defense that "his generation" has grown up learning that file-sharing isn't wrong. This is a bogus argument. I'm a member of Tenenbaum's generation. I was taught I shouldn't take what doesn't belong to me without permission.

Funny, then, can you explain all the lawsuits that artists have filed against major record labels asking where the money owed to them has gone? Why is it the RIAA's biggest name members seem to have no problem "taking what doesn't belong to them without permission"? And can you explain why the RIAA has been fighting for a new tax on radio stations? Isn't that just "taking what doesn't belong to you" as well? The RIAA has no problem taking what doesn't belong to them (though, usually it works hard behind the scenes to get politicians to pass laws to give it the appearance of legality).

FACT: The best anti-piracy strategy is a thriving legal marketplace that gives music fans a wide variety of innovative options where they can get their favorite music in affordable, hassle-free ways.

Which is why your members, under your legal direction and strategic input have sued a significant number of those services and tried to make the MP3 player itself illegal? Uh-huh.

Because there are some people like Mr. Tenenbaum who believe music should be free, we've had to enforce our rights to protect all those hard-working individuals who create the music.

There's a bit of a problematic logic train here... Because someone doesn't want to buy from us, we have to sue, to get money for the people we work so hard to not give money to. Hmm. Can Cara Duckworth and the RIAA share with us some details on how the "settlement fees" from all the folks threatened by the RIAA has been distributed to artists? The RIAA has no requirement to enforce its rights. As we've seen time and time again, artists who purposely chose not to enforce those rights, but to instead provide something of real value to consumers have found that they can make more money than they ever got from an RIAA member. There's no such thing as that you "had to enforce" your rights. Instead, you could have innovated. You chose not to.

FACT: We do not want to be in court. We'd rather be investing in new artists and bringing great music to the public's collective ears.

If we're dealing in "facts" here, we should get one straight. If a plaintiff doesn't want to be in court, then he or she doesn't sue. It's that simple. Making this out like the RIAA was somehow forced to go to court is ridiculous. Edgar Bronfman Jr. announced nearly a decade ago that he was sending an army of lawyers to sue file sharers. You made the conscious decision to declare war on your best customers. You weren't forced into it at all.

But artists, musicians, music companies, and all the working-class folks who rely on the legitimate sale of music to make a living deserve to be paid for their work.

There we are with the "deserve to be paid." Hell, I "deserve to be paid" for my work too. But, the world doesn't work that way. Deserving to be paid for your work and a nickel gets you five damn cents. You earn money by offering something in the marketplace that people want to buy. You didn't do that. You failed at business 101 and you started suing people because of it.

FACT: We remain willing to settle this case, but Tenenbaum is so far insisting on filing more motions and appeals in order to continue to pursue his misguided mission to get music for free.

You could drop the case. You've already declared (somewhat misleadingly) that you were giving up this strategy of suing music fans. Why continue to tarnish the RIAA's reputation by bankrupting a kid for listening to music?

Nobody can argue that people don't deserve to be paid for their hard work. But through all his illegal actions, Tenenbaum has argued exactly that.

Indeed. No one is likely to argue that people don't deserve to be paid for their hard work, but out here in the real world, deserving to be paid is meaningless. Cara, since I spent so much time correcting your errors, half-truths and misdirections, I feel that I deserve to be paid for this hard work I have done for you. Based on your logic, I should see a check in the mail from you shortly, yes? Clearly, if you don't pay up, we can only assume that you are arguing that I don't deserve to be paid for my hard work. So which is it?

No matter how clearly Tenenbaum broke the law, it doesn't change the only real fact: the RIAA has failed to embrace new business models when they appear, has attacked and held back new technologies and innovations at nearly every opportunity until dragged kicking-and-screaming into the new era (which it still refuses to fully embrace), and has created a PR nightmare for itself that isn't helped by lying to the public in the name of a bunch of bogus "FACTS."

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Tenenbaum Dinged $22,500 Per Song; $675,000 Total

from the and-onto-the-appeal dept

After admitting flat out yesterday that he downloaded and distributed songs using file sharing software, and that he lied about it, there wasn't a question of whether or not Joel Tenenbaum would be found guilty. In fact, the judge even said that the question wasn't even at issue. The only thing the jury had to work out was how much the damages would be, and they didn't take long at all, awarding $22,500 per song, or a total of $675,000. While a lot less than what the Jammie Thomas jury awarded, it's still a hefty chunk of change.

I've already expressed my distaste for how this trial was handled by Nesson and "Team Tenenbaum," but honestly, if he was going to just admit that he did it, it's unbelievable that he didn't just settle earlier when he had the chance. The only reason to go through with this is if the entire purpose is to create a later constitutional challenge on the statutory rates -- which many assume was Nesson's plan all along. However, if that's the case, is this really a good test case for that? Gleefully ignoring the law isn't the sort of thing that I think many judges/justices will find endearing. If this case does move up the appeals chain, one would hope that a better team of folks will handle Tenenbaum's appeal, and focus on the real legal issues. Of course, even before the appeal, it appears that Judge Gertner is planning to review whether or not the amount appears to be unconstitutional. It seems that particular ruling will be a lot more important than what the jury had to say.

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Trainwreck From Team Tenenbaum

from the really? dept

So, I had said I was going to try to avoid talking about the Tenenbaum file-sharing trial until it was over or unless something major happened, but reading through the reports of the first day it's hard not to declare it to be a train wreck in motion. So far, it appears that Charlie Nesson's argument is that "everybody's doing it!" While I obviously don't know the jury and don't know what else (if anything) Nesson has up his sleeve, that doesn't seem like the sort of argument that's all that convincing. In the meantime, I'm going to do something that I almost never do, and actually agree with entertainment industry lawyer Ben Sheffner (who regularly goes out of his way to misrepresent what I write here) and say that it's unconscionable that Nesson/Tenenbaum don't have an economic expert to testify on the "damages" caused by Tenenbaum. It's not like the idea hasn't been brought up before. Hell, we here had a lengthy discussion on exactly that back in March.

There are numerous economic experts out there who could clearly point out that there's no causal evidence that file sharing does any damage at all. There may be a correlation with a decline in CD sales, but not with any other aspect of the music industry -- and recent research is showing that the overall industry is growing. Even some of the music industry's own research is showing the overall industry is growing -- it's just that spending has shifted. It would have certainly been possible to make a strong case that file sharing alone doesn't cause any significant damage to the industry. They could have shown the recent economic studies, along with evidence of many, many, many artists who have embraced file sharing and used better business models to take that attention to make more money than they had in the past. At that point, they could make the case that it's not piracy that's causing harm to the plaintiffs, but their failure to adapt and embrace better business models. And, from that, show that Tenenbaum's actions didn't cause any direct harm.

But Nesson went on a wild goose chase pursuing "fair use" -- an argument that never really made much sense, and did so in a way that annoyed the judge and pretty much everyone associated with the case. He also screwed up getting the witnesses lined up for the case, only requesting that the author of one of those recent studies be allowed to testify long-past the deadline to do so. And, of course, with fair use being knocked out before the case started, and without any experts to present on damages, and a (so far) defense of "everyone's doing it," you have a recipe for disaster. Nesson seems much more focused on putting the whole RIAA strategy on trial, and seemed to forget that there were specific legal questions that had to be dealt with in this case. As with Jammie Thomas, I think that Tenenbaum is a bad case to go to trial, and I dread the results. At this point, the "best" result may be that they flub the case so badly that super high damages are awarded, and you end up with a repeat of the bad PR that came out following the Jammie Thomas trial (though, things are so twisted so far, I wouldn't be surprised if the RIAA themselves to do their best to convince the jury to keep the award low).

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No Surprise: Fair Use Rejected As Tenenbaum Defense

from the let-this-be-over-with-quickly dept

We've been careful to avoid covering most of the insanity around the Joel Tenenbaum trial from the last few months, as it became increasingly clear that the whole thing was a giant mess -- culminating in the plan to try to defend Joel's file sharing as "fair use." Pretty much everyone told the legal team that such a defense would never fly and it was a huge mistake. It's entirely unclear why Charlie Nesson kept pushing it. It should come as no surprise, then, to find out that the judge has rejected a fair use defense. One can hope that Nesson and crew actually have a better defense ready, but with the judge rejecting the planned fair use defense just hours before the trial began, you have to wonder if "Team Tenenbaum" has a real strategy at all. Hopefully it's just been hidden from all of us, because there are significant legal points that can be attacked, but to date Nesson seems to have focused on long shots, rather than the real legal questions at play.

Not only that, but it appears that even Judge Gertner (who originally approached Nesson about representing Tenenbaum, but had to scold him multiple times and threaten sanctions) seems to recognize that if Nesson and Tenenbaum had thought it out, there might actually have been ways to make a fair use claim stick. But, instead they failed to make a compelling case and (as Gertner says): "propose[d] a fair use defense so broad that it would swallow the copyright protections that Congress has created." So what would such a fair use defense entail?

To be sure, this Court can envision certain circumstances in which a defendant sued for file-sharing could assert a plausible fair use defense. Indeed, an amicus brief previously filed in this consolidated action by the Berkman Center at the Harvard Law School (on which Defendant's counsel was a signatory) outlined some of those circumstances--for example, the defendant who 'deleted the MP3 files after sampling them, or created MP3 files exclusively for space-shifting purposes from audio CDs they had previously purchased.' The Court can also envision a fair use defense for a defendant who shared files during a period of time before the law concerning file-sharing was clear and paid outlets were readily available.

The advent of the internet in the late 1990s threw a number of norms into disarray, offering sudden access to a wealth of digitized media and giving the veneer of privacy or anonymity to acts that had public consequences. At the beginning of this period, both law and technology were unsettled. A defendant who shared files online during this interregnum but later shifted to paid outlets once the law became clear and authorized sources available would present a strong case for fair use. It might matter, too, who the defendant shared files with--his friends, or the world--as well as how many copyrighted works, and for how long.

But the Defendant has offered no facts to suggest that he fits within these categories. He is accused of sharing hundreds of songs over a number of years, far beyond the infancy of this new technology or any legal uncertainty.

As with the Jammie Thomas case, it makes you wonder how things would have been different with better legal counsel. Either way, unless there are any major developments, we're unlikely to talk about the day-to-day events of this trial until a ruling is made.

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DOJ Sides With RIAA In Tenebaum Case

from the shocker dept

Considering that the Justice Department has hired a bunch of the RIAA's favorite lawyers, it was widely expected that the Justice Department would weigh in on the Joel Tenenbaum case -- despite the fact that folks in the Obama administration aren't supposed to be involved in situations that relate to work they did recently (oops). So, of course, the Justice Deparment has filed an amicus brief supporting the constitutionality of the statutory fines for copyright infringement. As Ray Beckerman notes, the Justice Department seems to have conveniently ignored numerous other precedents -- and doesn't bother to explain why earlier cases that upheld damages of 116 and 44 times damages means it's okay to have damages pushing hundreds of thousands of times over potential damages (and an argument can be made that there were actually no damages at all solely due to Tenenbaum). So while this is hardly surprising, it is a bit disappointing that the DOJ filed this brief, given the obvious conflicts of interest concerning its recent hires.

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RIAA Asks For Sanctions Against Charles Nesson In Tenenbaum Suit

from the getting-nasty dept

I think it would be an understatement to say that the RIAA is rather unhappy with Charles Nesson and his team of folks from Harvard Law, challenging them on the constitutionality of the RIAA's "sue everyone" strategy. Recently, they've been battling over the right to broadcast the courtroom proceedings, and now the RIAA is asking for monetary sanctions against Nesson, claiming he violated certain procedural rules. The RIAA is likely seeking sanctions under section 11, which is used against lawyers who file lawsuits that are "unreasonable." In other words, this is starting to get personal.

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RIAA Really Does Not Want Live Broadcast Of Hearing In Tenenbaum Case

from the what-are-you-afraid-of? dept

It seems the RIAA is, once again, showing its true colors. When Charlie Nesson asked the court in the Tenebaum case to allow a live internet broadcast of a hearing to dismiss the case, the RIAA protested. This was odd, on its face, since the RIAA has insisted from the beginning that the reason for the campaign is educational. That was the point made by Judge Gertner in granting the request -- and she even pointed out how odd it was that the RIAA didn't want that to happen.

It turns out that the RIAA is so against the idea that it's gone and asked an appeals court to overturn the ruling, which even has entertainment industry lawyers who support the lawsuit strategy questioning the RIAA's move here. Of course, it's not surprising to find out that the RIAA has been misleading (at best) about its intentions with these lawsuits, but it is rather amusing at how hard they're fighting this, even knowing how it shows their hypocrisy.

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Judge Approves Public Broadcast Of RIAA Lawsuit

from the educate-us,-please dept

Harvard Law prof. Charlie Nesson has been leading a case challenging the constitutionality of a core part of the RIAA's continuing lawsuit strategy. Late last year, he asked a judge if the trial itself could be broadcast live over the internet, noting that the RIAA claimed the lawsuits were part of its education campaign, so he couldn't see why they would object. Of course, they did object, but the judge has sided with Nesson, and the court proceedings will be broadcast live next Thursday, January 22nd on the Berkman Center's website. The judge repeated Nesson's points in responding to the RIAA's objection, noting that the RIAA's objection seemed "curious" considering its previous claims of this being an educational campaign. Nesson and his law students had clearly done their homework on the judge. As the article notes, in 2007, the judge (Nancy Gertner) had testified on Capitol Hill on the importance of broadcasting more trials over the internet and television.

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Harvard Team Asks Court To Allow Live Broadcast Of Tenenbaum Case Against RIAA

from the should-be-fun dept

A bunch of folks have sent in the story that Charles Nesson of Harvard, who is challenging the constitutionality of the RIAA's lawsuits against file sharers, has filed a motion asking that the trial be broadcast live over the internet, amusingly using the RIAA's own words to support his request. From the beginning, the RIAA has always insisted that its lawsuits were part of a broad "educational campaign" to teach people about the evils of file sharing. Nesson notes that, if this is true, the RIAA should obviously have no objection to such a trial being broadcast online. Somehow, it seems likely that there will be an objection.

Given that the RIAA has supposedly given up its legal strategy -- while still moving forward with existing cases -- is anyone taking bets on how long it will be until the RIAA actively tries to back out of the Tenenbaum lawsuit altogether? This case is pretty much the last thing the RIAA actually wants to go to court -- whether broadcast or not. Even if it wins the case in the end, this lawsuit is going to involve a lot of dirty laundry airing that the RIAA probably doesn't want out there.

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Big Guns Come Out In Effort To Show RIAA's Lawsuits Are Unconstitutional

from the this-ought-to-be-worth-watching dept

People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It's not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it's been brought up in court, the arguments haven't been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.

In the past, it's been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA's strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.

However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA's efforts in a court filing, where it's noted that the very basis for many of the RIAA's lawsuits is very likely unconstitutional.

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called "theft" in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That's because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.

This Court should exercise its inherent power to allow background image redress to Joel Tenenbaum for Plaintiffs' abuse of law and federal civil court process. As detailed throughout this brief, Plaintiffs are using any and all available avenues of federal process to pursue grossly disproportionate -- and unconstitutional -- punitive damages in the name of making an example of him to an entire generation of students. The case at hand warrants the use of inherent federal power not just because of what Plaintiffs are doing to Joel Tenenbaum in this Court, but because of the manner in which Plaintiffs are abusing the federal courts all across the country. Plaintiffs have pursued over 30,000 individuals in the same way they have pursued Joel.... For these 30,000 individuals, Plaintiffs have wielded federal process as a bludgeon, threatening legal action to such an extent that settlement remains the only viable option. Joel Tenenbaum is unique in his insistence, in the face of it all, on having his day in court. The federal courts have an inherent interest in deciding whether they will continue being used as the bludgeon in RIAA's campaign of sacrificing individuals in this way.

The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a "perversion of lawfully initiated process to illegitimate ends," and citing the case law that suggests such behavior should be punished by the courts: "One who uses a legal process ... against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process."

And this is where it gets good.

To prove the abuse of the process, the filing uses the RIAA's own words against it. First, the writers note (and cite the relevant cases) that even if there is a "proper purpose" behind the filing, it's an abuse of process if the primary purpose in filing the lawsuit is different than the "proper purpose" behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its "deterrence" educational program. From deterrence, Nesson shows how it's actually used as more of a bludgeon to get students to settle, which is clearly not the "proper purpose" of the law:

In essence, Plaintiffs are using the prosecution of Joel Tenenbaum to extort other accused infringers: the accused are told to either pay the settlement, or else be exposed to the protracted litigation and potentially astronomical damages that Joel now faces. See Milford Power Ltd. Partnership by Milford Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass. 1996) (holding that "the essence of the tort of abuse of process is the use of process as a threat to coerce or extort some collateral advantage not properly involved in the proceeding"). The intimidation tactics are working: of the 30,000 accusations the RIAA has leveled against individuals, only a single defendant has made her case in front of a judge and jury... (that sole defendant is now awaiting a new trial).

The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say "stop."

This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees' nest of Harvard Law.

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