RIAA Scrambles to Un-lose Jammie Thomas Appeal
November 12th, 2008 Filed Under Lawsuits, Music Business, Other Commentary
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.
What, MediaSentry Worry?
August 25th, 2008 Filed Under Lawsuits, Legislation and Regulation, Other Commentary
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
August 24th, 2008 Filed Under Legislation and Regulation, Other Commentary
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.
That’s The Price We Pay (For DTV)
August 23rd, 2008 Filed Under Legislation and Regulation
It’s amazing that with all the money the FCC is getting from the February, 2009 DTV transition, somehow there isn’t enough to pay more than $40 of the consumer cost for a DTV converter box. This is perhaps the biggest reason why the boxes are so scarce, and contribute to what will probably end up being a huge PR nightmare for Congress and a shining example for the rest of the world to avoid following.
What’s sad is it’s mostly a matter of greed. The Federal Government is too busy counting the revenue from airwave auctions to consider whether more of it should be spent on getting consumers ready to have their analog TV signals switched off.
Let’s start with the basic economics of production and distribution. After all, the most fundamental part of getting DTV converters in the hands of the people who need them is actually making them and getting them on store shelves. If you want this done on a large scale you have to provide some sort of incentive for everyone in the supply chain to deal with them. That means profit.
So obviously it makes sense to simply figure out the cost to get a converter box to market with minimal profit per unit and issue vouchers for that amount. So of course the government has taken a completely different approach. Instead they’ve decided to come up with what bureaucrats consider a reasonable amount and leave it up to consumers to pay the difference, which amounts to anywhere from $10 - $20 per converter. This isn’t a question of price gouging. In fact its led to a shortage of boxes on store shelves, perhaps due to the lack of profitability.
As far as I know there’s exactly one manufacturer making boxes which can be purchsed for the $40 voucher value (plus applicable sales tax). Those boxes are from Echostar / Dish Network. And they’re not being sold for a profit. In fact Echostar has said they’re losing money on every sale. Instead they’re being used as a PR measure in the hope that it will foster goodwill among potential Dish Network customers.
Unfortunately most manufacturers can’t really use the boxes for that purpose. As a result consumers have to come up with as much as half the value of the vouchers out of their own pockets. That doesn’t even take into account the cost of purchasing a new antenna for people in areas with questionable reception. Meanwhile the FCC is preparing to collect enough money from auctioning off the broadcast frequencies being vacated to pay for all of this - probably multiple times.
