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Judge Says RIAA "Disingenuous," Decision Stands

kdawson posted more than 6 years ago | from the smackdown dept.

The Courts 195

NewYorkCountryLawyer writes "Judge Lee R. West in Oklahoma City, Oklahoma, has rejected the arguments made by the RIAA in support of its 'reconsideration' motion in Capitol v. Foster as 'disingenuous' and 'not true,' and accused the RIAA of 'questionable motives.' The decision (PDF) reaffirmed Judge West's earlier decision that defendant Debbie Foster is entitled to be reimbursed for her attorneys fees." Read more for NewYorkCountryLawyer's summary of the smackdown.
The Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true." This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly.

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195 comments

Hey, RIAA (5, Insightful)

Himring (646324) | more than 6 years ago | (#18859817)

Judges can't fix your flawed business model and/or lack of innovation....

Re:Hey, RIAA (5, Insightful)

BeansBaxter (918704) | more than 6 years ago | (#18859931)

I would think the RIAA might be a little nervous about paying legal fees to all the wrongfully accused however. It might make their selection of random file sharers a little more difficult. The way it should be handled I think.

Re:Hey, RIAA (1)

asilentthing (786630) | more than 6 years ago | (#18861483)

so pretty much everything they're making on settlements goes right back into paying these court fees. Brilliant!

Re:Hey, RIAA (5, Interesting)

sconeu (64226) | more than 6 years ago | (#18860929)

Or, as Heinlein said over 60 years ago,

There has grown up in the minds of certain groups in this country the notion that because a man or a corporation has made a profit out of the public for a number of years , the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped ,or turned back, for their private benefit.

-- The Judge in "Life-Line"

Re:Hey, RIAA (0)

Anonymous Coward | more than 6 years ago | (#18860985)

I've been boycotting the RIAA for a couple of years now. I listen to live music and I buy t-shirts and merchandise from the bands I listen to.

http://www.archive.org/details/audio [archive.org]

Those bastards won't get a red cent from me until they stop harrasing their customers.

Sadly.... (5, Insightful)

8127972 (73495) | more than 6 years ago | (#18859845)

.... I suspect that this will not stop the MAFIAA from making the lives of millions of Americans miserable. They'll just blow it off and it will be business as usual for them.

Re:Sadly.... (1, Interesting)

jfengel (409917) | more than 6 years ago | (#18860007)

Millions?

Re:Sadly.... (5, Funny)

Hijacked Public (999535) | more than 6 years ago | (#18860143)

You don't just count the people being sued, you have to also consider the great many Slashdotters who believe that any expectation that you pay anything at all for any media that can be digitized equates to misery.

That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.

Bands make money from touring. DRM is evil. You can make unlimited copies of a song for no marginal cost. I only listen to independent bands anyway. Live music is better. The president of the RIAA has a monocle and stokes a cat all day. Ogg Vorbis is a good name for a file format. Micropayments are the future. Outmoded business model.

Re:Sadly.... (5, Insightful)

Maxo-Texas (864189) | more than 6 years ago | (#18860259)

I agree. It's a shame that people are trying to undermine the successful and legitimate efforts by these businessmen to successfully lock up all major distribution channels, radio stations and to have laws passed to extend their copyrights indefinitely or as jack valenti said, "forever plus one day."

It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales. If this goes on, we might see the destruction of copyrighting sequences of notes and see entire new genre's of music like blues which shamelessly infringe on the same set of riffs for different songs.

A unique combination of generations of producers, lawyers, organized criminals, and the congressmen and senators that they bought have worked hard to create a virtual monopoly. Where is our respect for all that work?

Re:Sadly.... (3, Insightful)

radish (98371) | more than 6 years ago | (#18860941)

It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales.

Show me one example of a record company holding a gun to a band member's head to make them sign a contract.

Nope?

Then the artists have nothing to complain about. They were offered a contract and they took it, if they didn't read it properly, or better yet have it read for them by someone competent, it's entirely their own fault. The work I do for my employer generates a lot more income for them than they pay me - but that's exactly how companies generate profit for their shareholders. I wonder what would happen if Linus turned around tomorrow and said that he'd changed his mind about using the GPL for Linux and would actually like $1 a copy from everyone currently using it? The collective "WTF??!?? STFU!!" would be deafening. He chose how to license his work, and just like the anecdotal starving musician he's stuck with that decision.

Re:Sadly.... (2, Insightful)

pegr (46683) | more than 6 years ago | (#18860995)

Show me one example of a record company holding a gun to a band member's head to make them sign a contract.
 
You could make an anti-trust argument... that the music publishers have an unfair advantage over musicians due to collusion and unfair business practices.

Otherwise, its just taking advantage of the stupid, which I believe is still legal...

Re:Sadly.... (5, Interesting)

Artifakt (700173) | more than 6 years ago | (#18862081)

The RIAA and MPAA individual members have all, without one single exception, lost at least one suit, filed by an artist or multiple artists, where the corporations were caught concealing the true status of profits, under-reporting gross or net take, and/or over-reporting expenses, billing for expenses not actually incurred, double, triple, and even quadruple billing. In several of these cases they have committed such large numbers of 'convenient mistakes all just happening to fall their way' that the judges deciding those cases have freely used terms such as "egregious", "willful" and even "rising to a level that is undoubtedly criminal" in their decisions. Last I heard how the law is supposed to work, contract fraud is supposed to be illegal, even with no armed force involved.
      Yes, you could possibly justify an anti-trust argument, but how about this broader one. If artists are still entering into contracts with a group of companies that have all been caught cheating on contracts, there must be some unfair advantage to keep them doing it. Whether it's a monopolistic trust that leaves them no better options, or the group otherwise enjoys selective immunity from paying the full price of their contract violations is irrelevant. The government could vigorously prosecute where conduct crosses the line to criminal accounting practices, lieing under oath, and so on, and this would help a great deal whether there is a proven monopoly or not.
      Sure, some of it, at least a little, can be blamed on various artist's stupidity. Put a clause in your recording contract that says there will be bowls of all green M&Ms available at all times on the soundstage, and you can expect to pay very dearly for it. Fair enough, but not nearly all the artists are that stupid. Which seems more likely, that there are so many artists too stupid to realize the risks, or that many of them do know they are going to get screwed, but feel like all better alternatives are closed off to them, and hope to be the one who isn't screwed too badly.
      Prior post amounts to saying "show me a successful white collar criminal who turned to blue collar methods when they didn't have to, or agree I'm right!" I'm rather surprised you're rebutting only one part of it and letting the rest stand.

Re:Sadly.... (2, Insightful)

defile (1059) | more than 6 years ago | (#18862541)

Sure, some of it, at least a little, can be blamed on various artist's stupidity. Put a clause in your recording contract that says there will be bowls of all green M&Ms available at all times on the soundstage, and you can expect to pay very dearly for it. Fair enough, but not nearly all the artists are that stupid. Which seems more likely, that there are so many artists too stupid to realize the risks, or that many of them do know they are going to get screwed, but feel like all better alternatives are closed off to them, and hope to be the one who isn't screwed too badly.

I don't see how these are bad deals. Going by the deal Negativland posted on their web site as proof of pure evil, the record label takes a bet on an unproven band, distributes their sound through channels that the band could never develop on their own (pre-internet), pays all of the band's production and travel expenses, does some promotion, etc. All the band has to do is show up.

If the band sucks ass, the record label writes off the loss and the band never says a word on how unfair it was that they didn't get to participate in the losses. If the band does well, while it's true the record label enjoys most of the profits (since they bore most of the risk), the band is the one that has proven themselves and can set the terms when their contract comes up for renewal. The record label is just a commodity at that point and the band can shop around for better deals.

(And they really have no one to blame but themselves if they can't see down the line and sign obscenely long contracts with unfavorable terms.)

Re:Sadly.... (5, Insightful)

DarkSarin (651985) | more than 6 years ago | (#18861199)

No, there wasn't a gun involved, but there might as well have been.

If you are trying to make a living by writing and selling music, then you have essentially three choices--market it on your own, make it free and try to make money touring (if you can get noticed); or you might be able to secure an independent label contract, market it essentially on your own, and hope to make money touring; or, if you get lucky, you can get noticed, sign a major label (read: RIAA) contract, and be stuck with whatever terms they offer, because while some people are good enough to have multiple labels clamoring over their stuff, this is unusual. Instead most bands are lucky to have any label be willing to sign them and there are always others willing to take your place.

The result is that RIAA labels, in effect, have huge amounts of buying power when it comes to negotiating artist contracts. These contracts are typically draconian in nature, and leave most bands actually losing money for a while, although the label is raking in lots of cash.

Now, if you go with an independent label, you just have to HOPE that you get famous and make money. The same is true of no label deals, and in all cases you are expected to tour relentlessly and hope for the best. NPR did a fluff piece on the Dresden Dolls a while back that talks about how the band was making less money than the people they had to hire to make the tour work! Sad.

The point is that being an artist isn't easy, and the RIAA does NOTHING to make it easier for the vast majority. Only a very few actually get deals that reward them in line with the amount of CDs they sell relative to the amount of work it requires from the artist.

I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed.

Re:Sadly.... (0)

Anonymous Coward | more than 6 years ago | (#18862389)

I have no expectation of free music, but I DO expect that the price I pay get passed mostly on to the artist with only a small percentage going to the label and distributors (including the retailer). This isn't what happens, and I know why people are pissed.

The two biggest problems with your expectations are:

1.) Most of the buying public isn't willing to spend any time trying to find new music. Whatever sources they have, they go to them and take one of the first few items displayed. This means that if you don't have the money to get on radio stations or store shelves, you're unlikely to get anywhere.

2.) Most people like their music to be over produced, over compressed and with a big mid scoop taken out of it. While the latter two considerations are mostly matters of bad taste, the former requires a lot of money.

In other words, the RIAA thrive in large part because of the demands of the market. If the public weren't so fucking lazy and stupid - wanting their music to be dinner at Applebee's rather than a delicious home made roast - it'd be a lot easier for more musicians to generate some revenue from their earlier (rougher) recordings which could fund better-made recordings down the line. One of the best things about the digital music age is that most people are listening to music at a much worse audio quality than before, so production values may become less important so long as they're properly aimed at certain common mp3/AAC recording resolutions.

Re:Sadly.... (4, Insightful)

ffflala (793437) | more than 6 years ago | (#18862451)

You're laboring under the assumption that it is in fact, some inherent quality of the music that most greatly influences the music on which you are willing to spend money.

A few years ago I saw an estimate that around 100 CDs were being created per day, every day. It seems like a fairly conservative estimate. Assuming that's in the ballpark, in the time it takes you to listen to one CD, around 3 others will have been created. And you can't listen to music 24/7.

Distribution power has tremendous influence on what music will sell. Great distribution power --physical sales and the airplay, good PR, and buzz needed to push those CDs to the register-- requires a lot of capital. It is the exception for heavily marketed product to completely flop: even the worst will go gold if it's crammed down enough throats (thanks, Clear Channel!) I'm not talking postering, I'm talking about pay for play.

The reason you buy bands --the reason you may even identify with them-- is because you found mention of them in the first place. In a world where you're exposed to thousands of advertisements every day, it is far more likely that you came across them in an ad of some sort; or at least the person who told you about them did.

So your expectation for all your money to go to the artist, at least in the case of the RIAA label bands, is misplaced. Don't fool yourself -- most of the capital that gave them the huge sales did not, in fact, come from their musical efforts. They simply have the gratification of being the faces of the advertising campaign that is their latest CD.

Re:Sadly.... (5, Insightful)

MetalPhalanx (1044938) | more than 6 years ago | (#18861385)

I think you might have missed an important sentence in the GP post... the one that explains how the corporations can hold a gun to a band member's head. I'll point it out: (emphasis mine)

It's a shame that people are trying to undermine the successful and legitimate efforts by these businessmen to successfully lock up all major distribution channels, radio stations and to have laws passed to extend their copyrights indefinitely or as jack valenti said, "forever plus one day."

In the days before the internet, the record labels made life for independent artists as hard as they could, to force them into restrictive contracts. Good luck trying to get any air time on a significant radio station as an independent artist. And the strange thing about bands, is that while you can make money touring, you first have to gain a strong following. To do that, people have to hear you. If you can't get any air time the only way to do that is tour with other bands. But chances are, unless you're very original AND very good, most people will not remember your material nearly as well as whatever song that one of the labels has playing on the radio every 20 minutes all day long. NOT accepting a contract with a record label was a death knell for almost any band. Of course, there is always the possibility of arguing for a better contract, but it's not likely to be improved much, unless you really are very good and very original.

Of course, now with the internet their efforts to lock up the major distribution channels are starting to fail, so they are flailing wildly in an attempt to gain control over this new and unexpected threat. So far, they seem to be having some trouble, and I hope it continues that way.

Funny accounting..... (5, Interesting)

tinkerghost (944862) | more than 6 years ago | (#18862019)

Also remember that both the movie & record distributors have been caught repeatedly doing some very funny accounting in reguards to what makes a 'profit'. Most of the contracts issue an advance followed by royalties after a net-profit has been gained.

ISTR that a producers new Ferrari was once considered an 'expense' in calculating net profits. For a modern example of this look no farther than New Line Cinema & Peter Jackson - LOTR1 is showing $100M+ discrepency in the audit. That's a lot of money to be 'disputed' as an expense - like 2 more movies. Worse, although it's in the contract, NL is trying to bar Jackson from auditing the books on the other 2 movies. We are talking potentially 1/2 of $1B in profits being swept under the table & hidden from the 'Artists'.

Re:Sadly.... (1)

Maxo-Texas (864189) | more than 6 years ago | (#18862127)

I agree. And all that nonsense about breaking up "company stores" that kept workers in virtual slavery back in the 1800's was nonsense. I think it is wonderful to have a captive audience of customers who you can sign contracts with and then execute them in a way so they can never get free of the contracts.
http://www.cbc.ca/documentaries/bigsugar/sugar.htm l [www.cbc.ca]
http://links.jstor.org/sici?sici=0010-4175(198610) 28%3A4%3C729%3A%22MFOST%3E2.0.CO%3B2-Y [jstor.org]

If it is legal, then screw'em I always say. I think abolishing debtor's prison was a terrible idea in fact and it was great that we recently reduced people's ability to declare bankruptcy when they develop catastrophic illnesses. Honest businesses were just losing too much money on destitute people who still had a small amount of money they could fork over. The way we charge people without insurance five to ten times as much for the same procedure as we charge the insurance ($75 vs $1500 in some cases) company so we can have a "retail" rate is completely legal. Vicious and evil-- but completely legal.

All these things and eternal copyrights for mickey mouse are what makes America great.

Re:Sadly.... (1)

Sancho (17056) | more than 6 years ago | (#18861077)

It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales.
You want to protect the artists from themselves? They entered into those contracts freely.

Re:Sadly.... (0)

Anonymous Coward | more than 6 years ago | (#18861601)

Hmm..

I was thinking about your comment for a while... It's tragic that the music corporations are not giving the performers a bigger cut of the profits.

That is, until you realize that these performers are expecting to be paid millions of dollars for, umm, performing. The "artists" nowadays rarely play their own instruments. Sometimes they can't even sing without extensive tweaks from software. Even if they do the whole thing -- write the songs, play the instruments, sing -- it's still a ways away from the art for art's sake.

OK, so music is a business. One pop star is just like any other. The companies promote the "latest thing" by seeding MySpace, payola to the radio stations, having some band/performer do the soundtrack for some teen movie, having the cool kids on the latest teen TV series listening, etc.. It's all about image. Carefully crafted image, in fact. Gone are the days when scouts would actively look for interesting sounds. Now, a bunch of suits get together in a meeting room and look for a performer that appeals to some untapped demographic. Then the performer is chosen and his/her image tailored to appeal to that demographic.

That's why teen bands were/are so popular. Back in high school and college, the kids that got together to form a group tended to get together because they had similar interests. But it's telling that the pop groups now are so incredibly eclectic. There's a rebel with spiky hair. There's the introspective, quiet type. There's the cutey. I.e., every member chosen to appeal to a particular demographic. It's not sinister, just the way of the business.

This said, there are some talented musicians out there. Why they chose to sign on with these big names is theirs to know, but if it was because of the lure of millions then that's something they have to live with.

Re:Sadly.... (1)

hxnwix (652290) | more than 6 years ago | (#18861739)

I agree? Amen? Right on? Weak sauce.

Fuckin' A? That's a spicy meatball!!

On the topic of the RIAA, what Maxo-Texas said.

Re:Sadly.... (2, Interesting)

shark72 (702619) | more than 6 years ago | (#18862499)

"It's just wrong that corporations should not be able to force artists into contracts which deny them any profits after millions of dollars worth of sales."

It's much worse than you think. I'm at the director level for a company that makes PC peripherals. I'm in charge of $40MM of business a year, yet my employment contract (which I was "forced into" in the same sense that artists are "forced into" recording contracts) includes a salary that isn't one hundredth of that amount. I've probably been responsible for half a billion dollars of sales, yet I'm firmly in the middle class.

I believe that everybody should pirate as much music as their hard drive will hold, if they feel that it's the right thing to do. "I pirate to save money" or "I pirate because I give fuck all about respecting the rights of somebody whom I haven't even met" are good rationalizations for doing so. Inequities in contract negotiations aren't a particularly good rationalization, as that's something that we all have experience with -- on both sides of the desk.

Re:Sadly.... (3, Funny)

Anonymous Coward | more than 6 years ago | (#18860283)

The president of the RIAA has a monocle and stokes a cat all day.

If cat-stoking is as illegal in the US as it is in Europe, this might just start a case worth watching.

Re:Sadly.... (5, Funny)

Mr2001 (90979) | more than 6 years ago | (#18860917)

I tried to stoke a cat once, but I couldn't figure out which end the coal was supposed to go in.

Re:Sadly.... (1)

certain death (947081) | more than 6 years ago | (#18860943)

baaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaahahahahahaaaaaa aaaaaaaaaaaaaaaaaaaa!!!!!! I almost pist myself on that one!!!!!

Re:Sadly.... (2, Funny)

bigmauler (905356) | more than 6 years ago | (#18860499)

It is also abhorrent how all of these close minded slashdotters seem to follow the flawed Americanized idea
of "innocent until proven guilty"
I for one want no part ina group that follows such an evil trend.
When coroporations sue, we should automatically side with the selfless corporations as they are most likly right.

Re:Sadly.... (3, Insightful)

Sancho (17056) | more than 6 years ago | (#18861157)

It's said multiple times in each RIAA/MPAA story: civil suits do not have to pass the reasonable doubt test. They only have to pass the preponderance of the evidence test. This is because the reasonable doubt test would rarely even apply in civil cases, and when it DID apply, it would be an almost insurmountable barrier. You'd get nasty people causing damage to other people and getting away with it without compensation to the victim. It's just unfortunate that corporations and individuals are considered to be on the same playing field when it comes to courts.

Re:Sadly.... (0)

Anonymous Coward | more than 6 years ago | (#18860501)

I'm really sorry you had to resort to sarcasm to get your point across.

Re:Sadly.... (0)

Anonymous Coward | more than 6 years ago | (#18860517)

Ogg Vorbis is a great name (or names). Like "MPEG1 Layer 3" is so much better. Anyhow, speaking of the vorbis, here's a Vorbis IC for you. [sparkfun.com]

Re:Sadly.... (4, Insightful)

teflaime (738532) | more than 6 years ago | (#18860863)

One point...Most bands really do make their money from touring, not from their records. In fact, if you pay attention at all, you hear horror stories from everybody who isn't a corporate rock fuck about how if they had to rely on album sales they would starve to death.

Re:Sadly.... (0)

Anonymous Coward | more than 6 years ago | (#18860947)

I agree that Ogg Vorbis is a bad name for a file format(or anything at all) but DRM is not evil??!! You must be a main attraction at parties.

Re:Sadly.... (0, Troll)

some_yahoo (686674) | more than 6 years ago | (#18861145)

You know, it's always the thief that declares his right to the spoils.

If it is as you assert that bands make all their money from touring, then answer this...

1. why do they bother putting out CDs at all?

2. where are the bands saying "screw media, we're releasing everything on the 'net for free to boost our ticket sales"?

The fact is that just because something is easy to steal doesn't make it yours.

The bands that release their stuff free on the 'net are garage bands who aren't ready for primetime.

Re:Sadly.... (1)

jimicus (737525) | more than 6 years ago | (#18861197)

The president of the RIAA has a monocle and stokes a cat all day.

Really? How do you stoke a cat, anyway?

Try Thinking Next Time. (4, Insightful)

twitter (104583) | more than 6 years ago | (#18861427)

You don't just count the people being sued, you have to also consider the great many Slashdotters who believe that any expectation that you pay anything at all for any media that can be digitized equates to misery.

It's more like the 125 million US citizens with an ISP connection that might be wrongly accused and threatened with the loss of all their life savings.

That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.

Yes, I'd like my music to play on restrictionless devices. If you like having to beg permission to play and copy your files or keep running your OS. I'm not sure why anyone would prefer that but to each his own. Perhaps you would like one of Mr. Gates' bed o'nails and pillow full-o-thorns to sleep on?

Bands make money from touring. ... blah blah blah

You don't have a real job do you?

Re:Sadly.... (1)

jimbojw (1010949) | more than 6 years ago | (#18862239)

That they be denied the ability to obtain, free of charge, the latest pop music in a format that not only plays on any conceivable device but was also developed by people who share their particular political and philosophical leanings with regard to software....that is truly misery for them.
No need to be miserable - there are now plenty of alternatives [jamendo.com]

Re:Sadly.... (4, Insightful)

melikamp (631205) | more than 6 years ago | (#18860053)

I would not be so sure about that. If this decision withstands the test of time, many lawyers will be willing to take on at least some of the cases, since the salary will now come out of **AA's pockets. The obvious outcome will be that more people will engage in illegal filesharing (seeing that it is possible to go to court and win), while **IA will have to pay considerably more for its "war on piracy".

Re:Sadly.... (4, Insightful)

pdboddy (620164) | more than 6 years ago | (#18860087)

Quite the contrary, this is setting precedence, and there are a number of other cases where RIAA is not only in danger of losing, but also in danger of having to pay lawyer fees. Think of how many cases they have filed, knowing they can't win all of them but hoping the defendants will cave to pressure and settle. Now imagine these defendents standing up for themselves and going to court... RIAA *could* end up losing quite a bit of money, quite a few lawsuits and what remains of their tattered credibility. It will also give pause to other companies pondering this sort of litigation.

Re:Sadly.... (0)

Anonymous Coward | more than 6 years ago | (#18862079)

set PRECEDENT, not precedence

Nice to see... (3, Interesting)

Churla (936633) | more than 6 years ago | (#18859897)

It's nice to see a judge finally start applying some "put up or shut up" logic to this mess. Actually this looks more like a "Put up AND shut up", but I'm willing to run with that as well.

Finally! (5, Interesting)

Lockejaw (955650) | more than 6 years ago | (#18859929)

because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible
It's about time we started hearing this sort of thing again.

Re:Finally! (0)

Anonymous Coward | more than 6 years ago | (#18860021)

Why?

Do you think the RIAA is in the business of denying you access to creative works? I would think the opposite, since that it how they make money.

Re:Finally! (5, Informative)

pdboddy (620164) | more than 6 years ago | (#18860125)

They make their money by making people buy one cd for the car, one for the computer, one for the portable cd player, and download mp3s for their iPod/mp3 player... The sort of thing the copyright laws were supposed to prevent.

Re:Finally! (2, Funny)

NormalVisual (565491) | more than 6 years ago | (#18860813)

They make their money by making people buy one cd for the car, one for the computer, one for the portable cd player...

And this is after you'd already bought the same album on vinyl and cassette 20 years ago.

Re:Finally! (2, Funny)

StikyPad (445176) | more than 6 years ago | (#18862497)

Not to mention one vinyl for the home, one for the computer, one for the car, and one for the portable record player.

Re:Finally! (1)

R2.0 (532027) | more than 6 years ago | (#18861551)

"The sort of thing the copyright laws were supposed to prevent."

Huh? Considering that basic copyright law was written before recorded music even existed, I doubt that the fair use rights for an iPod were considered.

Re:Finally! (1)

MightyYar (622222) | more than 6 years ago | (#18860191)

They most certainly are in the business of providing access to THEIR creative works, but they are have an interest in seeing their works provided rather than the works of the competition. All you have to do is look at what broadcast radio has become to see what they would like the internet to look like. Of course, the thought of taming the internet is the delusion that makes them seem so clueless to "us" Slashdotters. They will eventually have to figure out how to make money without selling very many CDs as the "music is free" crowd gets older.

Re:Finally! (1)

MindStalker (22827) | more than 6 years ago | (#18860243)

Yes, every time they and the RIAA push legislation to extends copyright they are denying the public access to vast quantities of creative works that can and should be use to create new works.

Re:Finally! (5, Interesting)

Profane MuthaFucka (574406) | more than 6 years ago | (#18860409)

Yes, they are, and I include all copyright holders in this as well. Go out and try to find a brand new Travelling Wilbury's CD. You can't, and you won't be able to until sometime near the year 2100 when it goes into the public domain.

Same goes for the original recordings of some classic albums. I don't want the greatest hits copyrighted from 2006, I want to buy a brand new CD with the same record that I grew up with. Take THAT Corey Hart, you stupid Canadian money grubber. You had what, two records? And one of them was a hit? I want to buy your "First Offense" CD, not the Corey Hart greatest hits. It's absurd that you've even got a greatest hits anyway, when "First Offense" had all of hits anyway.

If copyrights were limited as they should be, Corey Hart would be in the public domain by now, or soon, and I could just get a copy of the CD from anybody.

Right now, I don't have any way to get a legal copy of the CD I want to buy. Thank god I already have the entire run of "The Golden Girls" on DVD, or I would have to wait until the next century for my masturbation material.

Re:Finally! (2, Funny)

Himring (646324) | more than 6 years ago | (#18860231)

Fogerty v. Fantasy, Inc

Is that the one where John Fogerty had to prove he didn't sound like himself?...

Re:Finally! (5, Informative)

Himring (646324) | more than 6 years ago | (#18860925)

Funny? If only it were a joke. To me, John Fogerty being made to go to court to prove he didn't sound like himself (comparing new recordings he did to old when changing labels) is one of the prime examples of the insanity that is the RIAA....

Re:Finally! (3, Informative)

HeadachesAbound (828103) | more than 6 years ago | (#18860505)

Ripped from an email in response to a fax that I sent concerning copyright issues / problems. It may be a form response, but who knows, maybe somebody is paying attention.

>>>>>>
Thank you for contacting me regarding copyright protection. I welcome your thoughts and comments on this issue.

Copyright protection has been central to America's prosperity and job creation. Movies, books, computer software, television, photography and music are among our unique American products and some of our most successful exports. United States industries depending on copyright protection employ nearly 4 million workers and produce over $65 billion of our exports ( more than agriculture and automobile manufacturing.

Protecting content in a high-technology age is a new and daunting problem, and copyright protection is an important challenge as the broadband revolution offers even more far-reaching possibilities and opportunities. With new speed and interactivity, the entire store of movies, music, books, television and raw knowledge can be made widely available. I believe copyright protection is a foundation of innovation, and copyright law should work to ultimately protect the best interests of consumers. Intellectual property is the creative core of the information age, and I agree this is a pivotal issue for Congress to address.

I appreciate hearing from you and hope you will not hesitate to keep in touch on any issue of concern to you.

Sincerely, Kay Bailey Hutchison

Correction (0)

Anonymous Coward | more than 6 years ago | (#18860829)

because copyright law ultimately serves the purpose of enriching the general public through access to creative works

That should read:

because copyright law ultimately serves the purpose of enriching those in the general public who may own stock in corporations that control access to creative works

Question (4, Interesting)

MicktheMech (697533) | more than 6 years ago | (#18860089)

Maybe I missed it, but if the RIAA complied with the order to show their attorney's fees, does that mean they're available in some accessible court document somewhere?

Re:Question (1)

zappepcs (820751) | more than 6 years ago | (#18860127)

I was thinking exactly that, but don't know where to look. I'd be real interested in finding out what it is costing them to sue file sharers. I'd be willing to bet that hits their bottom line nicely, and might encourage member companies to think a bit about what they are paying for.

Re:Question (4, Informative)

ZachPruckowski (918562) | more than 6 years ago | (#18860173)

Nope, they're sealed - the RIAA won the fight to keep them out of the public eye, citing possible damage to other lawsuits in progress.

Re:Question (2, Insightful)

Anonymous Coward | more than 6 years ago | (#18860311)

I really don't think this could damage other suits in progress, since they could make the same request. More likely it would harm their extortion business... if people knew they would be safe spending 100 grand on a nice big lawyer and have it reasonably covered in attorney's fees they might be more confident in their ability to win said fees and come out from a lawsuit even or perhaps ahead. If they think anything over 10 grand might be considered "unreasonable" they might not be so confident in their lawyer.

And of course revealing how much they spend on lawsuits might make people even more likely to boycott them, not wanting to finance extortion but rather the artists. Or maybe they'd just be less guilty about stealing music.

Re:Question (1)

iminplaya (723125) | more than 6 years ago | (#18860787)

Or maybe they'd just be less guilty about stealing music.

Who? the RIAA, right? After all, they are the thieves here, not the customers, and I don't believe they ever felt guilty about stealing music. Besides, if the government approves, it isn't stealing. Stealing is against the law. They have the unique advantage of being able to change the law as needed to suit their purpose.

Re:Question (1)

Adriax (746043) | more than 6 years ago | (#18861255)

I can see how this could be damaging.
It probably proves the whole lawsuit campaign is nothing more than them tossing huge chunks of money at the courts in the hope it scares everyone into not only stop copying, but even stop practicing fair use, and buying every cd as it comes out "just to be on the safe side".

Re:Question (5, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#18860967)

They are presently confidential [blogspot.com].

But when the Court's final decision fixing the amount of fees is issued, the details will probably be in the decision.

And if the RIAA appeals, then the underlying papers will be filed as part of the appellate record, and it is highly unlikely that the appeals court would keep them confidential.

Re:Question (1)

jellie (949898) | more than 6 years ago | (#18861395)

Thanks for the updates, Mr. Beckerman.

Does this mean that they will finally have to pay up? I know the original decision was one to celebrate, but since then, it seems like the RIAA has been throwing every argument to either stall or reverse the decision (although the judge says it is not final). It would be unfortunate if they could drag this issue on, even though the case is over.

I also like the judge's first footnote in which he cites other RIAA cases to refute their argument. IANAL of course.

Re:Question (4, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#18862465)

With each dilatory move the RIAA has made in Capitol v. Foster, it seems to be digging its grave just a little bit deeper.

I can't for the life of me fathom what they are doing other than enriching their lawyers. Plus they're ensuring that Ms. Foster's attorney will have a nice payday at the end of this, which will enable her to help many more RIAA victims.

They're turning a $55,000 attorneys fees award into a $150,000 award, and spending a lot of money to do it.

Plus they're ensuring that their fee arrangements -- which they don't want people like me to know about -- will become public.

Go figure.

I've been in the litigation field for 32 1/2 years, and I can't imagine what they are thinking.

But Capitol v. Foster has already given the rest of us a number of excellent judicial precedents, and it seems that more are on the way.

Re:Question (0)

Anonymous Coward | more than 6 years ago | (#18862521)

You guys are my heroes. :)

In legalese, "Disingenuous" means... (5, Funny)

R2.0 (532027) | more than 6 years ago | (#18860115)

"Lying Bitches"

Re:In legalese, "Disingenuous" means... (1)

baomike (143457) | more than 6 years ago | (#18860391)

>
They can , but they only do it if there is no one around to lift them
into their favorite tree each night.

Why don't "we the people" (4, Interesting)

Sodade (650466) | more than 6 years ago | (#18860261)

Revoke RIAA member's corporate charter? Invalidate their predatory contracts with artists. Thile we're at it, eliminate Ticketmaster. This leaves room for a non-profit system for promoting and desseminating music. We need a blue-collar musician class.

Re:Why don't "we the people" (3, Insightful)

hackstraw (262471) | more than 6 years ago | (#18861029)

We need a blue-collar musician class.

In older times, this was called a union. Its kindof a bad word today, but in order for artists to get around the RIAA and Tickemaster and any new incarnation of the same, a union may actually be something that can protect their rights.

Re:Why don't "we the people" (1)

Sodade (650466) | more than 6 years ago | (#18861111)

With the RIAA and Ticketmaster out of the way, there would be room for a taxpayer funded (cheaper than dealing with RIAA lawsuits) non-profit system for promoting peer-reviewed bands (since promotion is the only thing that the RIAA has to offer). This wouldn't require a union I don't think.

Re:Why don't "we the people" (4, Informative)

Mattintosh (758112) | more than 6 years ago | (#18861321)

"Unions" are for laborers. Factory workers, service-job workers (bus drivers, retail clerks, etc.) should be in unions. (Or not, depending on how they feel on that issue.)

"Guilds" are for artists and creators. Engineers, actors, painters, musicians, and even computer programmers should be in guilds, not unions. (Again, "or not" applies here.)

Unions got a bad name from the corrupt officials in their organizations (past, present, and probably future). Guilds don't have that problem.

Re:Why don't "we the people" (3, Funny)

Grishnakh (216268) | more than 6 years ago | (#18862271)

"Guilds" also evokes images of brave warriors, armed with magic swords and shields, courageously exploring dangerous dungeons full of orcs, trolls, and other denizens.

If I join an engineer's guild, do I get to carry a sword around and wear chain mail armor made of mithril?

Re:Why don't "we the people" (1)

boldtbanan (905468) | more than 6 years ago | (#18861669)

Um...isn't that what the RIAA is technically supposed to be? Not that it actually represents the artists' interests.

Re:Why don't "we the people" (1)

steelfood (895457) | more than 6 years ago | (#18862145)

Not particularly coherent today, so forgive me if not everything makes sense, but I'll take a shot at replying.

http://www.freelancersunion.org/ [freelancersunion.org]

What they do, except perhaps with more of a music slant. Like offering discounts to equipment/promotional resources or pairing producers with singers, etc. If done right, it could theoretically completely replace what the RIAA does. RIAA members owning a good chunk of the major media outlets does present a challenge to the organizers of such a union, the RIAA could be driven to extinction by this alone even without the internet.

Add the internet as a viable alternative promotion channel to more traditional forms of media, and it might actually fly.

Ironic thing is, this model would bring the music industry far closer to a free market than one that involves the RIAA. That is, assuming the union leaders aren't eventually corrupted by the money. After all, the music industry is huge.

Re:Why don't "we the people" (1)

tnk1 (899206) | more than 6 years ago | (#18861715)

Revoke RIAA member's corporate charter? Invalidate their predatory contracts with artists. Thile we're at it, eliminate Ticketmaster. This leaves room for a non-profit system for promoting and desseminating music. We need a blue-collar musician class.


Because "We the People" is represented by Congress and Congress doesn't feel like it. Additionally, there's a good chance that a significant portion of "The People" don't actually care. Note that "the People" tends to include people who think an MP3 is an older version of a popular German-made submachine gun.

And lets face it, musicians don't want to be blue-collar any more than I do. At least your standard pop, rock, or rap artists don't. How can you live a rock and roll lifestyle without a healthy dose of cash? That bottle of Kristal costs 500$ a pop, last I checked.

(Most) Artists don't want to hear "non-profit" associated with their profession. They just want to have the recording industry stop giving it to them up the ass. Profit and getting filthy rich is just fine by them. The public's interest and the artists' interests coincide currently because it is the publishers who are screwing people over. Artists, like baseball players, are quite capable of banding together into a guild or union and acting just like the RIAA and getting paid incredible amounts of money to make music too.

Bear in mind that artists want MP3s as a means of cheap distribution and PR which frees them from a useless middleman, the publisher. That means that they are willing to go along with the digital revolution to a large degree. But don't think that they are doing it as a group for any other reason than to either promote or monetize themselves in some way. And I don't blame them, because they have a right to enjoy a living from making music, if there is demand for it. Still, your idea of super cheap (even free), and ultra easy-to-obtain music is not going to necessarily be their idea of it.

fscking A!! (4, Informative)

VorlonFog (948943) | more than 6 years ago | (#18860287)

It's about damned time. Now how and when can we get Sony, Macrovision, and the MPAA to back off? They just killed the open-source FixVTS website, and gagged everyone involved. Just like they did with RipIt4Me a month ago. Way too much open-source innovation is being squashed, and it's a crime they're quashing any discussion of it, too.

Re:fscking A!! (2, Interesting)

CelticWhisper (601755) | more than 6 years ago | (#18861127)

How can they truly stop it, though, if it's open-source? All that would need to happen is for one person to have downloaded the source .tar and distributed it far and wide, unofficially. Let a programming team in a foreign country pick up the project and keep it alive.

This is why I really wonder about the sanity of some of the developers of these ripping apps--if you know there's a real, tangible threat from the industry, why-oh-why do you never release your source? DVD Decrypter, DVDFab, and DVD Shrink are all (at least, at one point I thought they were) closed-source even if some are/were free.

I understand the desire for notoriety in the warez scene, but sometimes the greater good must be served. Open the source.

Re:fscking A!! (3, Informative)

Mattintosh (758112) | more than 6 years ago | (#18861397)

Too bad they're thoroughly incompentent in everything they do.

FixVTS [afterdawn.com]

RipIt4Me [videohelp.com]

Sony, Macrovision, and the MPAA are a little vaklempt. Discuss amongst yourselves.

FAILZoRS (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#18860303)

clean for the next If yo0 3o not exemplified by [mit.edu] found

I felt a disturbance on the net... (5, Funny)

Black Parrot (19622) | more than 6 years ago | (#18860441)

...like a thousand record company executives suddenly sending each other whiney e-mails.

Re:I felt a disturbance on the net... (1)

StikyPad (445176) | more than 6 years ago | (#18862593)

I vote that the next person who uses a tired slashdot meme gets a great disturbance to the braincase.

Unequal income litigation (5, Interesting)

iamacat (583406) | more than 6 years ago | (#18860799)

We need a reform whereby when litigants have dramatically unequal net worth, the plaintiff is required to reimburse defendant's lawyers up to the amount that they themselves spend on legal services. The plaintiff can then argue for whatever damages they can convince jury the defendant can pay based on their income level. The same should hold true in criminal cases. When prosecutor feels the crime is grave enough to justify calling dozens of expensive expert witnesses, surely the suspect should be given a chance to prove themselves innocent. Justice shouldn't depend on your bank account, especially since we all know how many rich guys are crooks.

Re:Unequal income litigation (5, Interesting)

DDX_2002 (592881) | more than 6 years ago | (#18861727)

Should there be an award of costs if you sue someone and lose? Damn straight, that's how the British and the Canadians have always done it and it really cuts down on frivolous litigation. Costs in those systems aren't anything near actual solicitor-client costs, but they're high enough to make people think twice about wasting the court's time and the defendant's money.

As to damages based on respective income level, dear god no. That change would completely and utterly overwhelm your first point - if McDonalds injures me to the tune of an actual loss of $1 out of my pocket, I shouldn't be able to claim $1000 just because they're a big company. That creates an enrichment in me and a huge incentive to sue big companies over frivolities. Conversely, if someone backs into Bill Gates' car, he should get less than the cost of fixing it why, exactly? If I have a $1 loss, it is perfectly reasonable to say megacorp defendant who caused the loss need to pay me $1, my filing fees and a reasonable amount on top of the real loss for my discomfort/trouble/pain/annoyance, but as a matter of legal and economic theory, I should *never* come out ahead by suing. A lawsuit is not a jackpot and god help us all if it ever becomes such (though many would argue the US is already there). Now, having said that punitive damage awards do happen- those enrich the plaintiff and are economically questionable, especially on the scale sometimes seen in US courts. But the theory is, megacorp can afford to lose $3 to cause a $1 injury if they actually make $3.25 by doing it or if they only get caught at this one time in ten, so sometimes you need to put a thumb on the scale, as it were. Punitive damages are intended to send the clear message not to do the complained of act again and avoid hundreds or thousands of other people having to sue to make the same point. They are also meant to be rare and in Canada, actually are.

Re:Unequal income litigation (1)

Grishnakh (216268) | more than 6 years ago | (#18862557)

I partially agree. Backing into Bill Gates' car shouldn't result in me paying less than the actual damage.

However, I'm a big supporter of punitive damages. Without them, companies tend to see lawsuits as a "cost of doing business". Companies will happily pollute rivers as long as the cost of doing so (measured in payouts to those affected who bother to pursue them) is less than the savings resulting from this deed. A few large punitive damage awards can bankrupt a company, which is a good thing: if the company can't operate ethically and legally, it has no business operating at all. If anything, the system is much too lenient with these companies: bankruptcy shouldn't be an option, and all the executives and managers of the company should be personally liable when misbehavior is caught and punished. Yes, it's supposed to be like this already, but not nearly to the extent that it should be; usually, they get off scot-free.

As for lawsuits not being jackpots, why not? What's wrong with that? If a company does something illegal and unethical, which results in real damage to a plaintiff, then why shouldn't that sufferer be awarded a huge amount of money in compensation? Why shouldn't he come out ahead (though the "ahead" part is questionable anyway, depending on the damage: did he lose a limb due to poor/nonexistent safety measures? You can't ever fully compensate for that.)? If the company doesn't want to lose its shirt to a plaintiff, then maybe they shouldn't do illegal stuff to begin with. What's wrong with that concept?

Companies in Canada probably don't do all the illegal, damaging stuff that American companies do, which is probably why punitive damages are rare there.

How would that help generate campaign funds? (1)

DogFacedJo (949100) | more than 6 years ago | (#18861747)

Why would a lawmaker want to pursue such a reform? Wouldn't that just piss off almost all the lobbies and people with enough income to make good use of a tax deduction?
    I'd love to see such a reform - but who would support it financially?

    Not to imply that our laws are written within a corrupt framework; well, perhaps I do suspect that.

Re:Unequal income litigation (1)

Hemogoblin (982564) | more than 6 years ago | (#18861753)

... the plaintiff is required to reimburse defendant's lawyers up to the amount that they themselves spend on legal services.
Apparently you haven't been following this case so I'll fill you in. Essentially, the case against the defendent was "dismissed with prejudice" and should she will be reinbursed for her legal fees. The RIAA balked at the amount she demanded and tried to argue that it was far too large an amount. The defendent replied "Well, how much did you spend? If you spent more than I did, the amount I'm asking for should be reasonable." The RIAA didn't want to reveal how much they had spent, but the judge forced them to. The amount is confidential right now, but NYCL has mentioned it might become public later. In conclusion, the charges have been dropped and the RIAA is going to be paying all/most of her legal fees.

Apparently its common practice to see how much the other party has spent on legal fees to determine what is reasonable as reinbursement.

Finding common ground in a new age (5, Interesting)

Borland (123542) | more than 6 years ago | (#18861335)

The RIAA is a cure that is worse than the disease, piracy, that it fights. Frankly, I hope they do end up paying out the ass for their McLawsuit business model. That said, it always seems that arguing fairness on digital media is like arguing abortion: It is difficult to find middle ground, let alone win, an argument with a true believer.

My own stance is often conflicted on digital media. I've never deluded myself into thinking I'm striking a blow for justice by downloading a game, software, song, show, etc. gratis. But the often clumsy DRM does sometimes make me regret a legitimate purchase. With BT games, I can take my machine to a LAN party without bringing a single disc. With a legitimate game, I'd either have to bring the discs or patch it as if I had obtained an illegal copy. Hell, I wanted a few songs right away to exercise with, so I downloaded the MSN service and bought a few bucks worth of songs: Easy as pie...until I restore my system, or until MSN folded into URGE without properly supporting legacy customers.

Even this far into the Internet age we still haven't developed proper analogues to physical media. You can loan a book to a friend; the only DRM is the security sticker removed at the store. How do you easily loan an audio book to a friend, without making it easy to endlessly provide perfect copies? The business model needs updating, but to what? As it stands, we are buying encrypted paper books that can only be read with a cipher key licensed to an individual.

But even that metaphor breaks down easily, since paper books employ near-universal formats that anyone literate in the language can read. Since the format is interpreted by the human mind, not a computer, any irregularities in the format (i.e. manga style graphic novels) can be adapted on the fly. We don't have to consider if a book comes in .doc, .avi, .mp3, or other format and choose the correct interpreter in addition to the language barrier.

Ease of use is key to adoption, but what is the balance between business and consumer? Is it fair that iTunes limits players or is it fair to demand that iTunes support an open format? Damned if I know the answer.

Hurrah! Perhaps the tide will turn! (3, Insightful)

HikingStick (878216) | more than 6 years ago | (#18861383)

I'm just glad to be reading another piece of good news in the whole fair use / RIAA abuse spectacle! Thank God for a judge who was willing to look for precedent, and was not simply willing to let yet another case go by that would have kept the thumb screws down on yet another defendant.
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