RIAA Scrambles to Un-lose Jammie Thomas Appeal
by Rich Fiscus on November 12th, 2008
You have to give the RIAA credit for this. They’re nothing if not consistent. Unfortunately for the people of the United States that means they’re still trying to weasel out of arguing the merits of their cases in court.
You may remember Jammie Thomas; the only defendant whose file sharing (copyright violation) case has actually gone before a jury. Last year the RIAA won their lawsuit against Thomas, who admitted to sharing files, in what was initially a major victory for their argument that simply making files available for download constitutes violation of copyright.
However, on appeal the judge determined that his instructions to the jury in agreement with this position was in error and granted a new trial. This isn’t the first time, or in fact the second or even third, that a judge has reached this conclusion. In fact it’s the standard reading of the Coypright Act that’s been affirmed in case after case.
This poses big problems for the entire framework of the RIAA’s cases. It means they can only claim damages for those files their investigators actually download. If they want damages for a thousand songs it will require a thousand downloads.
In a move that shocks, well pretty much no one, they’ve decided to appeal the decision to grant a new trial. Nobody, most likely including the RIAA lawyers, expects them to win this appeal. In fact it is most likely intended for two purposes, both of which are deserving of a reprimand from the judge at best, and there are many who believe court sanctions would be more appropriate.
The history of these lawsuits shows a clear pattern; besides that of defendants caving in to RIAA demands of course. When defendants go to court and raise legitimate legal questions about either the facts of the case or the legitimacy of the damages RIAA lawyers do their best to drag cases out and avoid arguing the merits of the case in front of a judge.
As usual this RIAA’s appeal is filled with misleading half truths in an attempt to mislead the court. In particular they claim that there’s dissent among the judiciary in previous court decisions which have held defendants liable for merely making copies of a work for unauthorized distribution. What their brief fails to mention, that the decision to grant Jammie Thomas a new case does, is that those defendants were being accused of secondary infringement. In other words they were basically being held responsible as accomplices to copyright infringement.
None of the file sharing lawsuits have anything to do with secondary infringement. Jammie Thomas isn’t being accused of participating in a third party’s unauthorized distribution, which is the issue in each of their supposedly relevant cases. The RIAA is claiming she personally infringed on them. Since they only cite cases where secondary infringement is alleged it’s only reasonable to assume that’s all they can find.
Now for the good news and the problem for the RIAA. There’s absolutely no chance of Jammie Thomas just dropping it. You see unlike your typical RIAA defendant she has nothing to lose by pursuing her case in court and nothing to gain by caving in. She’s already taken the big gamble and lost as big as you can lose. If she doesn’t fight it she owes them more money than she can possiblly pay.
On the other hand the RIAA has now backed themselves into a corner. If they have to argue the case again without their “making available” argument they konw the focus will shift to issues they’ve never had to argue in court. Primarily it will focus on the constitutionality of damage awards that are so high as to be constitutionally questionable.
And it gets better. The labels themselves have argued the opposite side of this point successfully in the past and their only affirmative argument in this case is the minimum amount specified in the law. Although their lawyers are quick to point out that this is different because it’s not based on a calculation of actual damage, there’s no reason to believe the US Constitution makes any such distinction and that’s where the issue lies.
The issue that’s now being raised by a brief filed by Jammie Thomas’ lawyer is that granting an appeal right now would give the RIAA an extra appeal to which they’re not entitled. And why should we care about that? To begin with it means yet another delay in deciding the case; something the RIAA has a history of. Besides the additional cost to this particular case, it also means more delay in getting decisions on the legitimate issues.
At one time there may have been an argument to be made that the RIAA should be given the benefit of the doubt that their appeal is genuine. But that was before their pattern of dragging out cases for years before ultimately dropping them immediately before these serious questions would have been answered by the court. Now we don’t have to assume their intentions. They’ve shown them clearly enough. It’s time to hold them responsible for this history of bad faith courtroom dishonesty and put it in the hands of a judge.
Exploring Matroska: A Container For All Formats
by Rich Fiscus on November 8th, 2008
In 2003, when I first got serious about digital video, I started seeing some very knowledgeable people making references to an open source container (AV file format) called Matroska. At that time Matroska was very much in its infancy and much of the discussion revolved around the idea of emulating the the programming and menus found on DVDs. At least that was the focus of the comments I read. At the time I was just starting to understand DVD technology and didn’t see any need for it.
Saying I was wrong would be an understatement. What I didn’t undesrtand then, which has become clear to me since, is that a format like Matroska represents a future for home video where consumers have the latitude to get the features they want. Until that happens we’re stuck with whatever movie studio heads and CEOs of electronics manufacturers see as the biggest money maker.
Why We Need An Open Source Alternative
To understand what’s so revolutionary about Matroska you need to start by looking at the mainstream alternatives. You may already be familiar with some of them, including Microsoft’s AVI (Audio Video Interleave) which is used primarily for MPEG-4 formats like DixX and XviD and the miniDV digital camcorder format. You’ve almost certainly been exposed to the MPEG-2 PS format with uses ranging from VCD and SVCD to DVD and the typical MPEG (.MPEG or .MPG) computer files. Then there’s the MPEG-2 TS format used for digital television and Blu-ray and the newer MP4 container designed for MPEG-4 video and audio.
So what’s wrong with these formats? Actually nothing. The problem isn’t that they don’t do what they were designed to do. It’s that they’re not well suited for formats and applications. For example, any of the MPEG formats, MPEG-2 PS (Program Stream), MPEG-2 TS (Transport Stream), or MP4 are designed with specific types of audio in mind. Although they also include the concept of ‘foreign streams,’ which are non-MPEG formats like Dolby Digital and DTS audio.
Matroska, on the other hand, is completely format agnostic. That means you can play any audio or video format from a Matroska file as long as you have the necessary decoder. To see this in action you need only look at the current trend in TV captures. DTV streams typically include MPEG-2 video and AC3 (Dolby Digital) audio. Due to the amount of hard drive space taken by the video it’s common to see it transcoded to a more efficient standard like AVC. Since Dolby Digital audio is already highly compressed many people feel the small efficiency gain from transcoding to another format like MP3 isn’t worth the quality loss.
Once the video is transcoded there’s one last issue to deal with. What container should it be put in? You could use the MPEG-2 TS container it was broadcast in but that doesn’t make a lot of sense. The same features that make transport streams good for DTV, robust error correction and the ability to store multiple channels in one signal, mean additional overhead that’s unnecessary and undesirable if file size is a consideration.
Looking at the other available alternatives, and considering AVC is an MPEG-4 standard, it makes sense to put the finished product in a MP4 file. Now we run into big problems. In theory this should work fine because AC3 audio can be used as a foreign stream. In reality there are two issues. Since the standard audio format for MP4 files is the MPEG-4 standard of AAC it’s difficult to find software that supports Dolby Digital in MP4. If you happen to overcome that problem you’ll find that equally few media players will be able to read it. In fact you’ll be hard pressed to find software that can even extract AC3 audio from a MP4 file.
Matroska To The Rescue
Enter Matroska. Since there is no official audio or video format specified for Matroska, AVC video with AC3 audio works just as well as any other combination. And if you do some searching on the internet you’ll find that this is exactly what many people are doing. After several years of development Matroska has come into its own, but not because it does something new or revolutionary. On the contrary, it’s because it does something obvious that the “experts” charged with developing new technology have overlooked.
For all its success Matroska still has one major hurdle to clear. While it’s gaining widespread support in the computer world, the same can’t be said for consumer electronics. If you happen to use a media center computer or HTPC this isn’t a problem. But if you’re among the majority of the population who uses a DVD player instead you’re out of luck. As is often the case in the world of home entertainment, support for what consumers prefer has taken a back seat to supporting what content producers think is best.
If you want to see Matroska succeed the most important thing is to use it. The more people do that, the closer we get to making it a mainstream format. If you haven’t already, I recommend taking a look at Matroska. You can find basic instructions for creating Matroska files in my guide on the subject. For help playing MKV or MKA files take a look at my guides on Haali Media Splitter and ffdshow.
What, MediaSentry Worry?
by Rich Fiscus on August 25th, 2008
If you were to make a movie about the RIAA’s campaign of lawsuits against P2P file sharers it could easily be mistaken for something by Monty Python, the Marx Brothers, or perhaps Mel Brooks. It starts with a straight forward premise. Record label executives get together to decide on a course of action to address falling profits from CD sales. Then it takes a left turn into the absurd as a label representative suggests that if their former customers are no longer inclined to part with their money for CDs, they’ll simply sue them claiming millions in lost profits from piracy. After all, what other reason could there possibly be for spending less money on a tired and out dated product?
After much deliberation behind closed doors a plan is then hatched. Many legal problems, from obtaining confidential information from ISPs to proving actual damages are discussed. Given the extensive legal barriers to gathering evidence legitimately they eventually come to the realization that they actually have no chance of winning.
But wait! One enterprising lackey toiling in obscurity in a legal department has a plan. Instead of relying on the law as written, they’ll simply claim the law supports their plan and use a combination of repetition and obtuse technical and legal arguments to make it appear that the law is on their side. After all, the most important thing isn’t the truth of their case. As anyone who watches Stephen Colbert can tell you it’s all about how true it sounds.
This strategy works for quite a while; perhaps even longer than they expected. But now we’re in another phase of their master plan. In any good farce there comes a time when someone catches on to the silly misdirection and puts it to a test of reason. At this point our antagonist has two choices. For a whle they choose the obvious route of loudly repeating the same arguments. After all, if you repeat your flawed argument loudly enough it looks even more like the truth.
Unfortunately that eventually fails. One by one, as they’re tested in court, their arguments get shot down by judges who take the time to consider the merits of each one instead of buying into the rhetoric advanced by lawyers who are little more than PR mouth pieces for the labels. Now they face a new quandry. What can they do to stem the tide of losses?
This brings us up to right now, and it’s where their strategy goes from psychotically brilliant to completely baffling. Their current dilemma has to do with MediaSentry, the firm that gathers evidence against alleged file sharers so RIAA lawyers can sue them. MediaSentry is under investigation in multiple jurisdictions for operating as private investigators without a license.
In Michigan alone, not only are they being investigated by the state agency responsible for issuing Private Investigator Licenses, they’re also the subject of a complaint by a University they’re targeting in their witch hunt for file sharers.
You might expect them to have another pile of vaguely similar case law to cite. This is how they’ve arrived at previous contortions of the law such as the infamous “making available” as copyright infringement argument. In fact they’ve even used some of this twisted logic in the past to respond to these accusations. In reality though, they’re not making any arguments in court, but instead continue to file lawsuits based on evidence gathered by MediaSentry.
Perhaps they figure they don’t have to worry until actual sanctions are imposed or maybe they’re trying to get as many cases in as possible before being force to stop. Or just maybe they still figure they’re 50 feet tall and bullet proof.
Make no mistake about it. Their behavior may sound like wacky antics when viewed from a distance, but it’s no laughing matter for the people who have settled for thousands of dollars rather than face the possibility of losing a lot more - even if they believe they’ve done nothing wrong. Their comedy of legal errors can’t come to a swift enough conclusion for the people who are already faced with financial hardship to avoid financial ruin.
Don’t Be Surprised By Digital TV
by Rich Fiscus on August 24th, 2008
If you’re in the US it’s hopefully no surprise to you that most analog TV signals will be turned off on February 17, 2009. Unfortunately the government has done a particularly poor job of educating the public about what (if anything) needs to be done to prepare. This is hardly surprising since the FCC, an agency not exactly filled with public relations experts or educators, has been given sole responsibility for preparing the country.
I’ve written a new guide to help you figure out what, if anything, you need to do. You may need a Digital TV (to analog) converter, an ATSC tuner, or perhaps neither. Even if your TV is already equipped to receive digital broadcasts it’s possible you need a new antenna.
The most important thing is that you think about it sooner rather than later. Despite the availability of government vouchers for DTV converters, there’s no guarantee you’ll be able to find one if you go to a local retailer. If you want to make sure to beat the masses of people who will be scrambling to get ready before (or even after) next February you should have no problems being prepared.
You can also find more general information about Digital TV in another article I wrote for the Nero website.
