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US Dept. of Justice May Intervene To Help RIAA

kdawson posted more than 7 years ago | from the big-guns-in-the-wings dept.

The Courts 215

NewYorkCountryLawyer writes "In a Corpus Christi, Texas, case, Atlantic v. Boggs, where the defendant interposed a counterclaim alleging that the RIAA's $750-per-song file damages theory is unconstitutional, and the RIAA moved to dismiss the counterclaim, the US Department of Justice has sought and obtained an extension of time in which to decide whether to intervene in the case on the side of the RIAA. What probably precipitated the issue is that the constitutional question was raised not just as a defense as it was in UMG v. Lindor, but as a counterclaim, thus prompting a dismissal motion by the RIAA."

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VS... (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#20060429)

Get her to add you as a friend.....you get to see milfy bewbs!!!!

http://profile.myspace.com/index.cfm?fuseaction=us er.viewprofile&friendID=108370887 [myspace.com]

It worked for me, Donny Most!@!!!~`~!

Re:VS... (-1, Troll)

Anonymous Coward | more than 7 years ago | (#20060503)

Thanks for touching my goatse

Re:VS... (0)

Anonymous Coward | more than 7 years ago | (#20060727)

dood...

i just wnet there .. no goatse, but not hawt either....meh!

An excellent idea (5, Funny)

Anonymous Coward | more than 7 years ago | (#20060431)

As well they should! It is well known that pirates are destroying the Intellectual Property of our Great Nation. They avoid detection using illegal hacker tools like poxie servers [shelleytherepublican.com] . They try to impose their communist agenda by using European software like Linux [shelleytherepublican.com] and satanic browsers like Firefox [shelleytherepublican.com] . Also, the DOJ is under grave pressure from activist judges who don't like the fact that Alberto Gonzales is a Mexian immigrant [shelleytherepublican.com] . This should give the lie-beral Democ-rats something to think about!

Re:An excellent idea (-1, Troll)

Anonymous Coward | more than 7 years ago | (#20060493)

Go to IRAK with the other extremists, you Christian religion hijacker jihadist!

Re:An excellent idea (0)

Anonymous Coward | more than 7 years ago | (#20061215)

YHBT HAND

Re:An excellent idea (1)

PacketScan (797299) | more than 7 years ago | (#20061157)

She doesn't even like lesbians. I think shelly is a 400 pounder hiding behind the net.

Re:An excellent idea (5, Insightful)

SoulRider (148285) | more than 7 years ago | (#20061487)

Damn, if that site isnt satire Im buying a gun.

You forget you can't spell DMCA without the *D* (0)

Anonymous Coward | more than 7 years ago | (#20061621)

Have some balls. Go to opensecrets.org and see which party the MAFIAA has in their pocket.

Hint: it ain't the Republicans...

Two (5, Funny)

Himring (646324) | more than 7 years ago | (#20060507)

"Who can resist the union of the two towers." --Saruman

Re:Two (5, Funny)

Tackhead (54550) | more than 7 years ago | (#20060767)

> "Who can resist the union of the two towers." --Saruman

"Sure, the high tech industry produces more revenue and innovation than the entertainment industry, but when it comes right down to it, we still prefer to snort our cocaine from between Titney's Pears than from the Commander's Taco. Can you really blame us?"
- Bipartisan Statement: Sen. Porkin' Hitch (D-isney), Sen. Serious Tubes (R-IAA)

Re:Two (1)

xeromist (443780) | more than 7 years ago | (#20061239)

Apparently humor is -1 offtopic today?

Re:Two (4, Funny)

Anonymous Cowpat (788193) | more than 7 years ago | (#20060885)

plot spoiler:

The forces of Rohan destroy the army of Eisengard. The Ents destroy Eisengard itself. A bunch of ghosts destroy the armies of Minas Morgol and then two little guys with furry feet cause Mordor to implode by destroying a ring.

Which leads us to the conclusion that if the US DoJ & the RIAA represent Isengard and Minas Morgol, they will eventually lose, although Sean Bean will die in the process.

Re:Two (1, Interesting)

jonnythan (79727) | more than 7 years ago | (#20061191)

Sean Bean played Samwise Gamgee.

Samwise went on to be mayor of the Shire for 49 years after the ring was destroyed. He died several years later.

Re:Two (1)

jonnythan (79727) | more than 7 years ago | (#20061217)

I'm a moron.

Sean Bean is not Sean Astin.

Damnit.

Re:Two (1)

Volante3192 (953645) | more than 7 years ago | (#20060939)

Offtopic? Really? Pretty clever allusion comparing the RIAA and DoJ to LotR. Shows a grasp of language far beyond what most people I've seen are capable of.

apparently the moderator as well.

Re:Two (2, Insightful)

thefergus (806985) | more than 7 years ago | (#20061035)

Agreed. That's about as *on* topic a response as you can have!

Perhaps someone fears allusion over illusion...

Burden in counterclaim? (5, Insightful)

EveryNickIsTaken (1054794) | more than 7 years ago | (#20060527)

Is it now the responsibility of the RIAA / US DOJ to show that the $750/song is constitutional? Or is it the defendant's responsibility to show it is unconstitutional? How would this work?

DoJ is helping out a huge corporation?! (4, Interesting)

FatSean (18753) | more than 7 years ago | (#20060581)

How funny that our tax dollars are being used to help a beligerant corporation make it's case, but why doesn't the common citizen get such help?

Maybe I'm missing something here...

Re:DoJ is helping out a huge corporation?! (5, Informative)

dgatwood (11270) | more than 7 years ago | (#20060675)

Simple. It's the golden rule: he who has the gold makes the rules. Translated another way, those who pay the most in bribes^H^H^H^H^H^Hcampaign contributions and protection money^W^Wtaxes get the most protection.

*sigh*

Re:DoJ is helping out a huge corporation?! (5, Insightful)

nuzak (959558) | more than 7 years ago | (#20060751)

It's not even about contributions. They have money, therefore they are afforded respect and deference at our own expense. They're "good for the economy". They don't have to give much of the money away at all, just show it off, much like a peacock's feathers, or my preferred analogy, a baboon's ass.

Anything that's Good For The Economy is what Must Be Done. All other pursuits, goals, and ideals of this country are secondary to The Economy.

Re:DoJ is helping out a huge corporation?! (3, Insightful)

Adambomb (118938) | more than 7 years ago | (#20061315)

Which is interesting since the US economy and the value of US currency versus most first-world currencies has been nose-diving pretty handily in the past decade.

Re:DoJ is helping out a huge corporation?! (1)

westlake (615356) | more than 7 years ago | (#20061031)

How funny that our tax dollars are being used to help a beligerant corporation make it's case, but why doesn't the common citizen get such help?

Now and again he does: Civil Rights Act of 1964 [wikipedia.org] ,

Re:DoJ is helping out a huge corporation?! (4, Insightful)

Danse (1026) | more than 7 years ago | (#20061277)

Now and again he does: Civil Rights Act of 1964,
Now if only a bunch of CEOs would have to go through what the civil rights activists went through in order to get these favors from the government, I might be ok with it.

Re:DoJ is helping out a huge corporation?! (5, Insightful)

Johnny5000 (451029) | more than 7 years ago | (#20061055)

How funny that our tax dollars are being used to help a beligerant corporation make it's case, but why doesn't the common citizen get such help?

Maybe I'm missing something here...


You're not missing anything.

The government doesn't even pretend to be on the side of the 'little guy' anymore.
They used to at least give lip service to the idea, but now they don't even try to hide their kleptocracy.

Re:DoJ is helping out a huge corporation?! (0)

Anonymous Coward | more than 7 years ago | (#20061583)

why doesn't the common citizen get such help?
They do get such help, and this case is an excellent example of it. Our interest in having a selection of music made available for purchase is the one I mean.

Despite the agenda promoted here at Slashdot the common citizen believes that freely distributing copyrighted work is wrong and should be punished because he rightly recognizes that the availibility of such work hinges on the compensation of artists. The common citizen supports the penalties long enshrined in law. He wants swift and overwhelming consequences for those who break this public trust so that they can serve as examples.

So the DOJ is indeed doing its job here by working for the greater good. Unless you are part of this Slashdot cabal that feels there should be some indemnity for anything done behind a computer screen, you'd agree.

Re:Burden in counterclaim? (3, Insightful)

JamesRose (1062530) | more than 7 years ago | (#20060587)

Generally the person making the claim has to prove that the claim they are making is true, not the otherway round. If it were used in the persons defence against the RIAA that 750/song was unconstitutional then it may be the other way round, but IANAL.

Re:Burden in counterclaim? (5, Informative)

Anonymous Coward | more than 7 years ago | (#20060603)

IANAL. However, I don't believe that this should be unexpected. The Department of Justice occasionally intervenes in cases when someone challenges a federal law in a civil lawsuit. Federal law in some cases requires a party to notify the Attorney General when they intend to challenge the constitutionality of a federal law. The defendant, having challenged the law, has a burden to show that the law is unconstitutional, and then the government has the burden to defend the law.

While on one hand this is a case where the government is defending a law that helps the RIAA, the intervention would have happened regardless of whether the record companies were involved because the government has a duty to defend its laws.

Re:Burden in counterclaim? (1)

plague3106 (71849) | more than 7 years ago | (#20060753)

While on one hand this is a case where the government is defending a law that helps the RIAA, the intervention would have happened regardless of whether the record companies were involved because the government has a duty to defend its laws.

No, the government has a duty to fulfill the wish of the people, since we allow it to operate.

Re:Burden in counterclaim? (1, Insightful)

Anonymous Coward | more than 7 years ago | (#20060809)

And that part's done by the legislature. The executive has to assume that the will of the people has been correctly expressed by the legislature, which is why it has a duty to defend the constitutionality of the laws passed.

Re:Burden in counterclaim? (0)

Anonymous Coward | more than 7 years ago | (#20060851)

But this executive is the decider, so it makes its own rules.

Re:Burden in counterclaim? (1)

Drachemorder (549870) | more than 7 years ago | (#20061197)

Well, I think it might be more accurate to say that the government has a duty to determine whether or not the law really is unconstitutional, which implies that they will have attorneys defending it in court. Our system of justice works by having lawyers argue both sides of a case before a judge or jury and receiving a verdict based on those arguments. It wouldn't work very well at all if there were only one side. Not that it works all that great as it is, but it could still be worse.

Re:Burden in counterclaim? (0)

Anonymous Coward | more than 7 years ago | (#20061415)

IANAL.
Liar liar pants on fire!

Re:Burden in counterclaim? (1)

cfulmer (3166) | more than 7 years ago | (#20061601)

That's a little confused:

Whether the law is constitutional is really a question of law, not a question of fact. Normally, when we talk about the "Burden of Proof," we are concerned with questions of fact. So, for example, "Did the suspect kill the victim" is a factual question that goes to the jury. "Is murder illegal?" is a legal question, and stays with the judge.

This is a question of law: both sides will say why it is/isn't constitutional, and the judge will have to pick which side is correct (or come up with his own alternate explanation). In general, judges don't want to throw out well-settled law, so it's a bit of an uphill battle for the defendant. But, it's really more of who can present the best argument.

So much for the government working for the people (4, Interesting)

ZorinLynx (31751) | more than 7 years ago | (#20060553)

Unless you're an executive for a major coporation of course...

This is disgusting. The RIAA goes around harassing random people on the net (with no real evidence to show they were filesharing) and demands an outrageous amount of money per song, and the government continues to *HELP* them do this?

ARRRGGHHH!!

Hello politicians:

We voted for you.

You work for us.

We want you to tell the RIAA to f**k off.

These thugs are harassing people YOU represent and you are letting them.

Stop being corrupt money-grubbing assholes and help us.

(of course I'm not so naive to think politicians will ever actually listen to us, but one can dream right?)

Re:So much for the government working for the peop (5, Insightful)

TheRealMindChild (743925) | more than 7 years ago | (#20060745)

You know the REAL problem here? Is they DON'T work for you, and they don't really CARE what you say you want. And the kicker is, they will likely STILL get reelected.

Re:So much for the government working for the peop (0)

Anonymous Coward | more than 7 years ago | (#20061325)

I agree with you. It's all explained in the Godfather novel.

Re:So much for the government working for the peop (4, Insightful)

krgallagher (743575) | more than 7 years ago | (#20060979)

"We voted for you."

Did you really vote? If so it is a matter of record that the politicians can look up.

"You work for us."

They only work for voters and supporters. The best way to get your opinion heard is to vote and contribute to campaigns. BTW, contributing to the opposing candidate works too. Campaign contributions are a matter of public record. If you say "I will support your opponent in the next elections." they can check if you have ever supported any candidates before. If not they will treat it as an empty threat.

"We want you to tell the RIAA to f**k off."

Have you actually told your congressman this? I email [house.gov] my congressman regularly on issues that are important to me. I hope you do as well.

Re:So much for the government working for the peop (4, Insightful)

Danse (1026) | more than 7 years ago | (#20061359)

They only work for voters and supporters
No, they only work for supporters. They will comply with voters if enough of them raise a big enough stink. That's largely what's wrong with government today. It's all about the money. Career politicians, corporations and lobbyists are running the show, and people keep voting them back into office, or at best replacing one career politician with another. This is, in turn, largely due to the ridiculous election system we have, along with gerrymandering to keep incumbents safe. We need a lot of changes if things are ever going to get better.

Re:So much for the government working for the peop (1)

Dusty00 (1106595) | more than 7 years ago | (#20061419)

So your suggesting that since the RIAA is bribing officials we should offer a counter-bribe?

Great idea!

Re:So much for the government working for the peop (2, Interesting)

Mithrandir86 (884190) | more than 7 years ago | (#20061005)

That is not how this system works.

The RIAA campaigned for laws that were in the best interest of their respective shareholders. Copyright laws were passed. The RIAA issues lawsuits based on those laws. The Department of Justice carries out the letter of the law. There is no reason to complain about entities that continue to function as they were intended.

Personally, I would be displeased with actions of the RIAA if I was a shareholder. I do not believe that I ever will be, however, as the standard business structure of this industry does not seem to be viable.

Re:So much for the government working for the peop (2, Insightful)

goldspider (445116) | more than 7 years ago | (#20061581)

This [slashdot.org]

I understand; Slashbots are supposed to react to both the RIAA and politicians with knee-jerk indignation, regardless of how little they understand the matter at hand.

Motion unapposed by the defendant (0)

Anonymous Coward | more than 7 years ago | (#20060559)

Why do you assume the justice dept will be on the RIAA side or even choose to intervene at all?

The docs state the 60 days were not apposed by the defendent.

Re:Motion unapposed by the defendant (0)

Anonymous Coward | more than 7 years ago | (#20060701)

Before anyone gives Mr AC a hard time:

appose: to put before : apply (one thing) to another; to place in juxtaposition or proximity

Re:Motion unapposed by the defendant (0)

Anonymous Coward | more than 7 years ago | (#20061299)

and yet your "what does words mean"-help was totaly fruitless since he very likely wanted to say "opposed" which means according to wordnet:
# S: (v) oppose (be against; express opposition to) "We oppose the ban on abortion"

Re:Motion unapposed by the defendant (1)

trolltalk.com (1108067) | more than 7 years ago | (#20060819)

"Why do you assume the justice dept will be on the RIAA side or even choose to intervene at all?

The docs state the 60 days were not apposed by the defendent. "

Because the site linked to says that the feds will intervene on the side of the RIAA. But really, was anyone expecting otherwise?

Re:Motion unapposed by the defendant (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#20060943)

the site linked to says that the feds will intervene on the side of the RIAA
It does not say "will intervene".

It says "may intervene".

Re:Motion unapposed by the defendant (2, Funny)

bmo (77928) | more than 7 years ago | (#20061397)

"It says "may intervene"."

Ray, stop it. I'm trying to foment a gallon of bile and correcting people with facts doesn't help me.

--
BMO "I have never come upon a post which makes its point so excellently, and also contains so many F-words." - Bruce Perens

I am just going to state the obvious... (1)

tgatliff (311583) | more than 7 years ago | (#20060577)

The old music business model is over RIAA... Yes, I know that for a while you made allot of money by forcing overpriced albums down the throats of the consumer who never wanted just albums, but it is over now... Technology and communication has destroyed you business of "we make our money by making it available to you" type distribution model... To fear to bad, as most software companies are realizing the same thing... The key thing to remember, though, RIAA, is that no matter how hard you sue, or the sheer number of people you sue, nothing will change this fact..

OK. There.. You now you know it... Now you can start the process of acceptance and healing.. :-)

Re:I am just going to state the obvious... (2, Interesting)

shark72 (702619) | more than 7 years ago | (#20061467)

Folks around here have been saying that the "sell stuff for a profit" model is dead for the record industry for almost a decade now. But I rarely see people hazard a guess as to when this will happen. Legitimate download resellers like iTunes are making a ton of cash, and I think most Slashdotters would claim that piracy doesn't actually significantly affect record sales, so we can't say that it's piracy that will kill the beast.

Perhaps you're claiming that this will be the case because the market will be taken over by indie musicians who distribute their stuff for free. The problem with this theory is that the market is already saturated with unsigned artists who sell their stuff directly and or givie it away, yet there are still a lot more artists who want record deals than get them. Slashdotters like to claim that artists can use the mighty power of the Internet to promote and distribute their music, but the record labels are doing this, too... the mighty power of the Internet is rising all the boats.

If you think it's obvious that the business model is dead, then great -- but do you have an estimate of when the record industry will go away?

Re:I am just going to state the obvious... (2, Interesting)

shrikel (535309) | more than 7 years ago | (#20061521)

Okay, this is just ridiculous. How many times on Slashdot have I heard the argument that the RIAA "forc[ed] overpriced albums down the throats of the consumer"? People have a choice whether to buy the album or not. If you buy music that way, you are supporting the business model. If you download the music, you are breaking the law. But there are other options available to you. You can buy independent lables' music. You can listen to the radio (at least for the moment). You can choose to do other things with your spare brain cycles than listen to music. There are countless choices, only two of which are "Pay big bucks or break the law."

I'm not saying the business model they've relied on is good and ought to be supported. I'm also not saying that downloading music is immoral... but it IS illegal. As a consumer, put your money where your mouth is... or in this case, DON'T put your money where your mouth ISN'T. They'll have to change their business model when it stops working. And in fact, they ARE changing their business model. They're changing it to get money by suing those who break the law by illegally downloading music. You can make them change THAT model too by just not downloading their music. What do you think would happen if we just showed the RIAA et al that we just don't CARE about their music? They'd lose any economic clout that they currently have and wither away, or change until they can find a way to engage the consumer's interest again.

But don't blame the RIAA for your choice to buy their music, or for your choice to illegally download it! You're just playing their game either way.

English translation, please? (1, Interesting)

Anonymous Coward | more than 7 years ago | (#20060591)

I've read the links, and it's still not clear to me exactly what the significance of this is. Could someone please translate this from legalese to English please?

RIAA (1)

MikeDataLink (536925) | more than 7 years ago | (#20060617)

The RIAA is simply WayStupid [waystupid.com] idiots. Or not actually: No other business entity on the planet could operate the way they do, except a government agency. And that my friends is what scares the shit out of me!

Re:RIAA (0)

Anonymous Coward | more than 7 years ago | (#20061017)

I would love to see a blindly presented game of spot the despot: China, Chavez, Castro or RIAA.

Re:RIAA (0)

Anonymous Coward | more than 7 years ago | (#20061389)


I would love to see a blindly presented game of spot the despot: China, Chavez, Castro or RIAA.

Chanvez was democratically elected.

the DoJ is required to consider it (5, Informative)

conspirator57 (1123519) | more than 7 years ago | (#20060641)

Just as the Plaintiff is required to notify the court and the DoJ

from the Plaintiff's answer and counterclaim:

"Rule 24(c) further provides that "[a] party challenging the constitutionality of legislation should call the attention of the court to its consequential duty" to notify the Attorney General of the United Sates under 28 U.S.C. 2403. Defendant Boggs therefore is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c)."

Re:the DoJ is required to consider it (1)

Knara (9377) | more than 7 years ago | (#20060763)

Just as the Plaintiff is required to notify the court and the DoJ

from the Plaintiff's answer and counterclaim:

"Rule 24(c) further provides that "[a] party challenging the constitutionality of legislation should call the attention of the court to its consequential duty" to notify the Attorney General of the United Sates under 28 U.S.C. 2403. Defendant Boggs therefore is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c)."

I'd give you mod points if I had them.

Re:the DoJ is required to consider it (3, Informative)

zarkill (1100367) | more than 7 years ago | (#20060843)

I think using the word "intervene" makes it sound like the DoJ is taking it upon themselves to step in, say "no, you can't countersue the RIAA", and that will be the end of the story.

If I'm understanding the scenario correctly, the counterclaim is saying to the RIAA "you have done something unconstitutional, and now I am going to seek damages from you because of it"; but the RIAA is replying "well, what we've done is federal law. If you say it's unconstitutional, we've got to get the Department of Justice involved".

Am I grossly misunderstanding this? It sounds more like the DoJ is "getting dragged into it" than "intervening" unless "intervene" is the proper legal term for this situation. I can see where there might be confusion caused by the use of that word.

Re:the DoJ is required to consider it (5, Informative)

conspirator57 (1123519) | more than 7 years ago | (#20061113)

Actually, the defendant is challenging the Constitutionality of the damages portion of the Copyright Act. Since this has broad and sweeping consequences, the result is an engraved invitation to the DoJ to attempt to preserve the status quo. This assumes that the status quo is generally desirable, and in many areas of law, it is.

Here is the paragraph above the one i initially posted wherein the defendant challenges the whole copyright damages provision:

"Pursuant to Rule 24(c) of the Federal Rules of Civil Procedure, Defendant Boggs is submitting concurrently with this Answer a Notification to call the attention of this Court to his challenge to the constitutionality of the statutory damages provision of the Copyright Act, 17 U.S.C. 504(c). Pursuant to Rule 24(c), "when the constitutionality of an act of Congress affecting the public interest is drawn in question in any action in which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28 U.S.C. 2403." Section 2403 of Title 28 requires that when the constitutionality of a federal statute "affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality.""

Re:the DoJ is required to consider it (1)

shmlco (594907) | more than 7 years ago | (#20061563)

Damages are always excessive because they're applied after the fact, as a punitive measure, and because they're also intended act as a deterent. If all you paid was the actual cost of goods your tried to steal, then you might as well go into Best Buy and try to walk out with that disc under your coat. Best case, you get a free disc. Worse case, you pay no more than you would have paid at the checkout counter.

It's why most littering fines are in the "outrageous" category. Does it cost $1,000 to pick up an empty coke can? No. But the fact that you "might" have to pay $1,000 may prevent you from tossing it in the first place. The benefit doesn't outweigh the potential consequences.

Will someone PLEASE mod the parent up? (5, Interesting)

AKAImBatman (238306) | more than 7 years ago | (#20060957)

It wasn't the plantiff (RIAA) that called in the federal dogs, it was the defendent. I'm reading through the defense's response and counterclaims right now. The issue is that the law requires that the Feds be notified about an accusation of an unconstitutional claim. The dependent therefore demanded that the government intervene to decide on the RIAA's claimed price of $750.

FWIW, this document is wonderful reading. The lawyer is throwing every book on his shelf at the RIAA, and when he runs out he heads over to Barnes and Noble and keeps chucking. He's got everything from Lachs, Estoppel, Waivers, Unclean Hands, Racketeering, Statue of Limitations, Failure to Mitigate, Copyright Misuse, Failure to register copyrights, Failure to prove copyrights, Failure to provide notice of a subpoena, insufficient service of process, failure to join necessary and indispensable parties, lack of standing, failure to state a claim, and good God my fingers are getting tired.

If this document is any indication of the caliber of lawyer Mr. Boggs has hired, than I'd say the RIAA will soon be running away at top speed with its tail between its legs. Huzzah!

MOD PARENT UP (1)

ohearn (969704) | more than 7 years ago | (#20061059)

If only I had mod points for both you and the post above right now.

Re:Will someone PLEASE mod the parent up? (1)

conspirator57 (1123519) | more than 7 years ago | (#20061061)

good catch. yes, defendant. thank you.

Re:Will someone PLEASE mod the parent up? (1)

AKAImBatman (238306) | more than 7 years ago | (#20061091)

Now if only I could speel defendant. Geez, I even spelled it dependent once! :P

Re:Will someone PLEASE mod the parent up? (2, Funny)

magus_melchior (262681) | more than 7 years ago | (#20061453)

"and good God my fingers are getting tired."

I'll say. You've got the lawyer tossing some guy named Lachs and a hefty Statue of Limitations at the plaintiffs. That's gotta smart.

How is $750 per song unconstitutional? (3, Interesting)

CyberBill (526285) | more than 7 years ago | (#20060665)

Sorry guys, but I agree with the judges. There is nothing in the constitution that says the RIAA can't sue you for however much they want to. It doesn't mean they'll get it (that amount is up to the judge) but there is no way its unconstitutional. I think they should charge people $1 per song, thats how much you can buy a fucking song for on iTunes. If I steal a box of twinkies that costs $5, and people see me do it and they go and steal another 99 boxes, I don't have to pay $500 to pay for them all, just the $5 for the one I stole.

Re:How is $750 per song unconstitutional? (4, Interesting)

AuMatar (183847) | more than 7 years ago | (#20060721)

They can only sue you for what the law allows them to. You could make an argument that $750 a song, when the songs are sold for $1, is cruel and unusual punishment. No idea if this would work, but you could definitely argue it.

Re:How is $750 per song unconstitutional? (2, Informative)

iluvcapra (782887) | more than 7 years ago | (#20061159)

The federal government can't cruelly or unusually punish you, this doesn't apply to civil situations between individuals.

The language is:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Of course, the sentence is in the passive voice, so it relies on interpretation, but its in the middle of a bunch of laws that spell out limitations of federal power, so this is probably how it gets interpreted. Amendment VII, which guarantees just about every civil respondent a right to a trial by jury, might be more appropriate.

Re:How is $750 per song unconstitutional? (1)

AuMatar (183847) | more than 7 years ago | (#20061383)

I think excessive fines imposed is arguable. $750 per song, when the song is sold for $1? A 750x damages award? The argument here isn't that the RIAA is acting unconstitutionally, but that the law which allows such high fines is unconstitutional.

Re:How is $750 per song unconstitutional? (1)

iluvcapra (782887) | more than 7 years ago | (#20061571)

The $750 isn't a criminal fine imposed by the government, it's the RIAA's claim of damages. They can sue you for a billion dollars for talking smack about Moby if they want, and if you ignore the summons, they'd win.

RIAA is not the government (yet). The Constitution of the United States defines the powers of the US federal government, and defines the freedoms of individuals in terms of what the government can't do. It has nothing to do with plaintiffs in civil suits. If you can find some theory that says amendment VII applies to individuals, then it might be different, but I don't think that's the case.

Re:How is $750 per song unconstitutional? (5, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#20060847)

Sorry guys, but I agree with the judges. There is nothing in the constitution that says the RIAA can't sue you for however much they want to.
Sorry, guy, but what "judges" are you talking about? The only judges I'm aware of who have ruled on the subject have said that the RIAA's $750-per-song file damages theory may well be unconstitutional [blogspot.com] . See also In re Napster Inc., 2005 WL 1287611 at *10-11, 77 U.S.P.Q. 2d 1833, 2005 Copr. L. Dec. P 29,020 (N.D. Cal. June 1, 2005). And legal scholars have said it is [ssrn.com] unconstitutional.

Twinkies don't work that way (1)

EmbeddedJanitor (597831) | more than 7 years ago | (#20060873)

You obviously don't steal many Twinkies (or at least you don't often get bust for it).

If people just get fined retail value when they steal something, then there is no punitive/discouragement factor.

Need/want something? Try to steal it. If you get busted then you pay the ticket price and mutter something about bad luck. Clearly that won't work.

There needs to be some sort of punitive damages to discourage further activity. $750 per song is probably a bit steep, but charging any reasonable flat rate per song is probably a crazy way to address the issue. Perhaps they should fine $1 per song plus some punitive damages ($500 for up to 10 songs, $1000 for more).

Re:Twinkies don't work that way (1)

jedidiah (1196) | more than 7 years ago | (#20061181)

I've got a novel idea... how about charging the perp with ACTUAL DAMAGES.

Yes, that's right. We've got rampant tort reform to defend insurance companies but never dare do the same for the common man. Companies are supposed to be rewarded for being crass and amoral. Mere mortals deserve all the punishment that the state can muster.

We could follow the model of tort suits I have alluded to and use the common standard of 3x the actual damages.

Even that would have some relation to actual harm rather than some misapplication of a statute originally intended to apply to professional bootleggers.

Prove actual damages. Even use the MSRP of the works in question. Then triple that.

Re:Twinkies don't work that way (4, Insightful)

vux984 (928602) | more than 7 years ago | (#20061255)

You obviously don't steal many Twinkies (or at least you don't often get bust for it).

Apparently neither do you.

If people just get fined retail value when they steal something, then there is no punitive/discouragement factor.

You are absolutely correct. A punishment component is both reasonable and required.

So for stealing a twinkie, $1.00 for the twinkie and $750 punitive fine is a perfectly reasonable judgement. However, if you stole a case of 100 twinkies instead of just one, what should your penalty be then? Would it be say, a single conviction, with a judgement of $100 for the twinkies plus $750 punitive fine or maybe even $800 or $900 in punitive damages? That seems fair to me.

Or would it be 100 convictions, each with a separate fine of $1 + $750 resulting in a $75,000 fine for stealing 100 twinkies.

THAT is how copyright infringement penalties works. There is a statutory $750 fine for each work that is infringed. The courts can't lower that amount, that minimum is right in the law.

There needs to be some sort of punitive damages to discourage further activity. $750 per song is probably a bit steep, but charging any reasonable flat rate per song is probably a crazy way to address the issue. Perhaps they should fine $1 per song plus some punitive damages ($500 for up to 10 songs, $1000 for more).

Yes. But their isn't, and the courts can't apply that scale even if they wanted to. The law requires that they be charged $750 per title infringed. Of course the RIAA is willing to 'settle' for far less... their 'good guys' after all.

But in the final analysis, a law that requires $375,000 in punitive damages for putting a few dozen cds on a web server, when the songs can be bought on itunes for $1 each is massively excessive, and that excessiveness can render it unconstitutional.

Re:Twinkies don't work that way (0)

Anonymous Coward | more than 7 years ago | (#20061455)

Problem though. When you down load a copyrighted song, you are NOT stealing something. The original is still there untouched and the ownership of the work is still in the owners hands. You did not take something, you made a copy of something. What is the value loss of the thing you copied? In reality, probably nothing. It might be a lost sale, it might not be. Is the lost sale retail value the sale amount? How much does the RIAA get from a digital sale of a song? Not the full retail price. They only potentially LOST money from a sale and that sale would have netted them a fraction of the retail price. Another teist. If you steal a candy bar from Wal-mart that sells for $1, Wal-mart loses the entire value minus their profit which is probably 0.02 so they would stand to lose 0.98. It does not matter if you would have bought it or not because they can NOT sale it once you took it. When you download a digital file, what store are you stealing from? Does Apple sue you because that is a lost sale from their store? Does the copyright holder sue? Does the person that represents the copy right holder sue (RIAA)? Does the artist sue? How about the radio stations? Wha tis the actual lost value interms of the sale and the value of the original? Who voilated the copyright? The person downloading the file or the person that is performing the unauthorized distribution of a copyrighted work?

If I stole an entire CD with 12 songs on it from Wal-Mart, I would not be charged a fine of $750*12, you know why? It is not a copyright violation to steal a CD because there was no unauthorized distribution of a copyrighted work, it is theft.

Many unanswered questions but the point is stealing a Twinkie can not be compared to distrubuting a copyrighted song to others when the owner of the copyright did not grant you permission to do so.

Re:How is $750 per song unconstitutional? (0, Offtopic)

Dr Kool, PhD (173800) | more than 7 years ago | (#20060927)

Remember that you're dealing with the same judiciary that interpreted "The Congress shall have Power ...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" to mean "a state cannot outlaw abortion".

"Constitutional" no longer has anything to do with what is actually in the Constitution.

Re:How is $750 per song unconstitutional? (0)

Anonymous Coward | more than 7 years ago | (#20060947)

It is called equal protections under the law and banning cruel and unusual punishment. There are at least two issues here. One is the law consistently enforced or is this action being given more weight because of the plaintiff than other like actions. AKA would a boy caught whistling Dixie have to pay less if sued by the artist's family than if sued by the RIAA, though both are copyright offenses. Before you laugh, several bars and clubs are fighting this type of case right now. Second, is it cruel and unusal to attempt to obtain a vastly larger sum of money than was lost. Please do not confuse this with penalizing the defendant. This amount is only meant to be fair compensation for the loss, not a form of punishment. This is not that type of case. Ask yourself, would it be fair to sue you for your home because your son took a apple from your neighbor's tree? While a judge can lower the amount, the use of the possibility losing that much money is in and of itself threating to those who might not be unable to defend themselves and so choose to settle to avoid the risk.

Re:How is $750 per song unconstitutional? (1)

31415926535897 (702314) | more than 7 years ago | (#20061687)

There are two things at play here that make your analysis wrong:

1. What you're arguing for is that file sharers only pay compensatory damages. So if there were only 10 songs in play, then the defendant should only have to pay $10 because that's the RIAA's actual loss. The problem is that there is a good case to be made for punitive damages too, and I believe that's what the law speaks to. The FBI warning at the beginning of your DVD says that you can be fined $100,000 not because that's how much the MPAA loses, but because that's your punishment for breaking the law. If you steal a box of twinkies, not only do you have to give the box back to the store (or pay them for it), but you're going to find your ass in jail as part of your punishment.

2. These cases are for distribution, so even at your $1 per infringement, on a filesharing network you might be liable for thousands of dollars for one song.

Now that I've cleared that up, I want to say that I still don't agree with these lawsuits. The evidence the RIAA presents is really crappy (I have a screenshot of the files you're allegedly sharing). While I don't think the $750 / song is unconstitutional, I still don't think it's right (and now that you can get jail time for 'casual' infringement--well that's definitely wrong). The RIAA isn't proving that you have actually distributed the files (just that you're in a position that you could have) or that the files you're supposedly distributing are even protected/copywrited files (the text file in my public share called HarryPotter.txt is not your material).

Theoritcally (1)

JamesRose (1062530) | more than 7 years ago | (#20060693)

Surely theoretically, if the RIAA sues someone, and taht person had never bought an album, then there is good reason to beleive the person would never buy any of the songs, so the RIAA has lost nothing, and therefore has nothing to sue for.....?

Re:Theoritcally (1)

justinlindh (1016121) | more than 7 years ago | (#20061303)

No. That's not how it works.

That's like saying that if you've never bought a car (yup, it is a car analogy), and then steal one that you can't be held accountable since you weren't likely to buy it. I realize that there is a difference between the car being tangible goods whereas digital media is not, but you're still dealing with what the law considers "property" in both cases.

If someone stole a piece of candy from me and I wanted to sue them for one hundred billion dollars, I should have the right. It's not unconstitutional, it's just absurd and the court would laugh you out of the courtroom for trying. That's exactly what is happening here: the RIAA is suing for 750% of the perceived value of the good stolen. This is absurd, and there are probably some judges who would agree.

Re:Theoritcally (1)

shark72 (702619) | more than 7 years ago | (#20061721)

"That's exactly what is happening here: the RIAA is suing for 750% of the perceived value of the good stolen. This is absurd, and there are probably some judges who would agree."

Huh? That's the minimum statutory damage per work as defined by law. The RIAA is legally allowed to claim up to $30K per work.

Understand that this is per work, not per "copy of work." If you have a song in your share directory and it's downloaded 1,000 times, the RIAA is still likely to only go after you for $750 for that work, even though you've distributed $1K worth of copyrighted material. Due to the magical nature of P2P, 1,000 copies is actually quite mild -- back in Kazaa's heyday, somebody did some fingerprint analysis of rips and found that one rip was responsible for some 16,000 individual copies of an Eminem CD.

For what it's worth, I think that in the age of P2P, $750 is too high; I believe it's a remnant of the NET Act and the justification was the pirate rings which distributed copies of PhotoShop on FTP sites. Given the vast explosion of non-profit P2P copying nowadays, I think $100 is much more fair. But even at $100, if the RIAA catches you with 1,000 songs in your share directory (which is not uncommon), they'll still wave the threat of a $100K lawsuit in your face in an effort to get you to settle for $3,000.

Re:Theoritcally (1)

shark72 (702619) | more than 7 years ago | (#20061603)

"Surely theoretically, if the RIAA sues someone, and taht person had never bought an album, then there is good reason to beleive the person would never buy any of the songs, so the RIAA has lost nothing, and therefore has nothing to sue for.....?"

The whole point is whether the $750-per-work statutory damage is constitutional. Statutory is the key here. I think you may be confusing this with compensatory, or as USC17 puts it, "actual" damage.

Enforcement of copyright law does not require proof of monetary loss -- it is about violating the right to copy. You need not offer something for sale in order to claim copyright (remember, GPL relies on copyright). Of course people who share music on BT will claim that they're not causing economic harm -- that would be impossible to prove; and thus we have statutory damages.

And quit calling me Shirley.

They probably lose more money (1)

MeditationSensation (1121241) | more than 7 years ago | (#20060799)

on used CD sales than on piracy. Why put all this effort into lawsuits that make them even more unpopular and give people a rationalization for piracy?

Please! IAAL respond! (1)

iknownuttin (1099999) | more than 7 years ago | (#20060817)

'Nuff said.

Re:Please! IAAL respond! (1)

iknownuttin (1099999) | more than 7 years ago | (#20061547)

Opps, for those of you who are a lawyer, please respond.

This is so not news. (5, Informative)

Quadraginta (902985) | more than 7 years ago | (#20060823)

If you read the motion in question, you'll see one thing this is not is Big Evil Government joining forces with Big Evil Recording Industry.

The background is that, as part of his defence (and a counterclaim), the defendant in the RIAA suit has said that (1) not only is he innocent, but (2) the act of Congress establishing the basis under which he was sued is unconstitutional. That's certainly going for the Moon.

In any case in which a Federal law might be declared unconstitutional, not surprisingly the Federal Gov't takes an interest, and might decide to defend the constitutionality of the law. Should they succeed, that does not mean the defendant loses, of course. It only means he can't get a bye, in the sense that the very law under which he was charged vanishes.

The only thing unique about this case is that the Federal Gov't asserts that it did not previously receive sufficient notice of the case to have time to decide, in the routine way, whether or not to defend the constitutionality of the law in question. So they filed a motion with the Court asking for 60 days to think it over. This motion was unopposed by the defendant, who apparently realizes (at least more so than certain credulous /. editors), that this is utterly routine and has about zero bearing on whether or not he'll win the case.

I mean, unless you're so naive as to think that the argument in Court will go like this:

RIAA (pointing skeletal finger): You broke the law, fiend!

Defendant: Did not. And besides, the law's unjust and should not exist.

Judge: Really? What makes you think so?

Defendant: Well, I...

Uncle Sam (interrupting): Hold on thar a gosh-darned minute! I say that law is fair!

Judge (bowing to Uncle Sam): Well, in THAT case, it must be. Defendent, you lose.

Defendant: Curses! If only Uncle Sam hadn't known about this trial...

RIAA (twirls mustache): Ha ha ha!

While it may be going for the moon (2, Insightful)

Sycraft-fu (314770) | more than 7 years ago | (#20061543)

I think it is an extremely important challenge. The concept of "punishment fitting the crime" is more than just an ideal to be upheld in American law, it is actually part of the Constitution. You know, the whole "nor excessive fines imposed, nor cruel and unusual punishments inflicted," thing. Seems pretty easy to argue that the statutory fines in copyright cases are excessive in relation to the actual harm. Would be the same kind of deal if a simple speeding ticket for going 5 miles an hour over carried a $5,000 fine or something.

I'm glad someone is finally pushing the issue of the excessive fines. Actually what I'd really like to see challenged is copyright lengths themselves. The Constitution has something to say on that as well, specifically "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Not hard to see how current copyright lengths violate both the "to promote progress" part and the "limited times" part.

Nuke em (0)

Anonymous Coward | more than 7 years ago | (#20060829)

They can have the DoJ, but we get the DoD.

Lawyers and motions are countered by M-16's and airstrikes

Re:Nuke em (0)

Anonymous Coward | more than 7 years ago | (#20061003)

"They can have the DoJ, but we get the DoD.

Lawyers and motions are countered by M-16's and airstrikes"


Dust off and nuke the whole thing from orbit. It's the only way to be sure.

Recording indusstry vs. The people... (1)

91degrees (207121) | more than 7 years ago | (#20060953)

This is a great resource but it's all a little heavy going.

It there a site that summarises the key points for the benefit of the stupid?

Why not a class-action against the RIAA? (2, Interesting)

BUL2294 (1081735) | more than 7 years ago | (#20061037)

IANAL, so this may be a stupid question...

Could someone file a class-action against the RIAA and/or Mediasentry since apparently everyone in the US is at risk for their extortion practices? The class would be everyone in the US, or everyone in the US with Internet access, who has NOT been targeted by the RIAA... Since the RIAA's tactics are becoming public knowledge as people have defended themselves and counter-sued, and since Mediasentry amounts to nothing more than a bunch of computer hackers, would this be possible? The goal here would not be to extract $$$ (although that would be a nice benefit), but to get an injunction against their practices. (Can an injunction be laid against someone to prevent them from filing more lawsuits?) What about trying to have the RIAA declared to be a malicious litigant ? (I believe there's a better term for this but I can't remember...)

Re:Why not a class-action against the RIAA? (1, Interesting)

Anonymous Coward | more than 7 years ago | (#20061355)

...declared to be a malicious litigant ? (I believe there's a better term for this but I can't remember...)


Mayhap Vexatious Litigant is the term you're looking for, good sir?

With respect to RIVTH (1)

tsstahl (812393) | more than 7 years ago | (#20061039)

/. is linking to an 'article' that is like 5 words longer than the quoted text. Would it, maybe, be useful to have a link to something that actually says What Does This Mean To The Average Slashdot Audience? Mini-rant off. Thanks for letting me vent.

Re:With respect to RIVTH (3, Interesting)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#20061319)

/. is linking to an 'article' that is like 5 words longer than the quoted text. Would it, maybe, be useful to have a link to something that actually says What Does This Mean To The Average Slashdot Audience? Mini-rant off. Thanks for letting me vent.
My site, "Recording Industry vs The People" is basically just a primary news source. I don't often get into commentary. However I do usually include a "commentary and discussion" section which keeps getting expanded as worthwhile internet discussion (including sometimes Slashdot) starts forming around the news.

What happened (0, Redundant)

PacketScan (797299) | more than 7 years ago | (#20061109)

What happened to by the people for the people? Now it's by the people for the Corporations? WAKE THE F UP!

Geez (0)

Anonymous Coward | more than 7 years ago | (#20061207)

You word a story one way and next everyone is pissed off that the Government is in the Pocket of the RIAA, word it another way and suddenly the Government is only doing their job.

The fact is, that even though in this example, it seems as the Government is purely acting on protocol, there are Many examples where the Feds look at the RIAA more as another Agency in the Government than as just another Company, that in which it is at the end of the day, a Company that is Lawsuit Happy, and abusing it's Carte Blanc because no one with the Appropriate Power to do something to at least appear their on the side of the People, are not about to lift a Finger.

How Exactly Does That Work? (1)

asphaltjesus (978804) | more than 7 years ago | (#20061311)

I would love to know the machinations that got the DOJ on _this_ case.

1. It's likely we'll never know because few, care enough about their government enough to pay attention. They are marginalized as "special interest groups."
2. Still. Who calls who(m?) in this situation.

Similarly, I'd love to know who called who(m?) when the whole RIM patent case was in-process to have the patents in question magically invalidated.

End Note: grammar nazis, please do the following:
1. correct my usage of who/whom in this post. I'm too lazy to look it up.
2. Provide rules for proper usage.
3. Provide handy shortcut for remembering proper usage.

Re:How Exactly Does That Work? (0)

Anonymous Coward | more than 7 years ago | (#20061545)

Use who as a subject.
Who is it?

Use whom as a predicate.
You called whom?
Whom did you call?

Re:How Exactly Does That Work? (0)

Anonymous Coward | more than 7 years ago | (#20061679)

I would love to know the machinations that got the DOJ on _this_ case.

I will assume that you have read the other posts regarding how the DOJ got into this case, so no comment on this part.

few, care enough about their government enough to pay attention.

Most people I come across have accepted the fact that their government is corrupt. They expect the government to do as it pleases. They feel that there is nothing they can do, so they do nothing.

A few will vote and then complain. Many will not vote and complain. They will mutter to each other about how the government is horrible, but they will not act. They will not even attempt to educate themselves on what their rights truly are. Their public and private school education did not educate them on what they can do to change things.

Most of these people would give the FBI anything asked for if the FBI showed them a badge. No warrant, nothing. Just seeing a badge and they will hand things over. They do not know or understand what is needed to act.

Trying to educate them usually ends up in anger or resentment. So, yes, this country is long gone, but I like fighting against the odds, just not all the time.
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