H -°, L 54° | Tomorrow: 
H 74°, L 50°The University of Wisconsin went against the national trends Friday by warning students about its policy regarding illegal file sharing but refusing to forward settlement letters to violators from the Recording Industry Association of America. According to Brian Rust, communications manager for the UW Division of Information Technology, the university sent an e-mail reminding students of the "appropriate use guidelines" for downloading to protect them from what could amount to thousands of dollars in out-of-court settlements. "These settlement letters are an attempt to short circuit the legal process to rely on universities to be their legal agent," Rust said. "It basically says, you are illegally downloading and/or sharing information; and before we take legal action, you can remedy this situation and pay for the music or movies that you've downloaded." Rust said DoIT receives about 10 to 20 cease-and-desist notices per day, which they are obligated to forward to their users. The notices are only warnings, Rust added, but the settlement letters brought on by the Recording Industry Association of America are more of a threat. The settlements are usually around $700 per instance, but could be as much as $3,500, according to Rust. "So you can imagine some people have probably come to that website with their credit card and paid it," Rust said. "We do not want to be a party to that; we are not the legal agent for the recording agency, nor do we aspire to (be)." Liz Kennedy, RIAA director of communications, said the association does not disclose the dollar amounts of the settlements, which vary by case. Once the RIAA files litigation through an attorney, individual users are notified via a subpoena, which Rust pointed out the university has not received as of yet. However, Kennedy said pressure is mounting from the RIAA to cut down on the illegal file sharing with a recent campaign, which has increased its lawsuits threefold at universities as of Feb. 28. Dean of Students Lori Berquam said she understands the interest of the recording industry but is concerned with the targeting. "Housing is kind of like easy pickings — it's like they are any easy target because there are 5,000 of them on our campus," Berquam said. "My fear is that this is just the residence folks are being targeted, but … who knows about the rest of the country." When notified of the e-mail sent to students Friday, RIAA Communications Director Jenni Engebretsen issued a statement in opposition to UW's action. "It's almost unimaginable that a university would be unwilling to help a student avoid a lawsuit," Engebretsen said in an e-mail to The Badger Herald. "Our pre-litigation settlement letters are offered as a benefit to university students to allow them to settle claims early, at a substantially discounted sum and off the public record." If students do receive a subpoena notice of being sued after being warned by the cease-and-desist letter, Rust said they will have their Internet access suspended and their names forwarded to the dean of students for an official review. Berquam said the office will have conversations with students who violate downloading agreements, but she added the main focus should be on education. "The bottom line on our campus is how do we educate our students about this," Berquam said. "We need to let them know it's illegal and opens them up to a pretty big lawsuit." And Paul Evans, director of University Housing, said students needed to read the message on their computers and restart before they could continue using the Internet in any UW dormitory. "I think there's a lot of downloading of copyrighted materials," Evans said. "I think if students are doing it, they should be careful. There are certainly people looking out for it."
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UW warns music sharers
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IP hash: df70e1fb
This is a various ambiguous report. So, by not forwarding the letters, the settlement letters languish and students aren’t notified until they get sued? I’m just not entirely sure that is how it works. I assumed the students who have been selected with IP’s involved will be notified by UW first off. UW has to act on violations of its own policy and with that, students would pretty much figure out what is going on. I find it very unlikely that the RIAA communication directors statement is accurate.
What I’d like to know - and I think many scared students, as well - where are they finding these people? From a recently served settlement letter, I assume they’re still targeting people on Limewire, Bearshare and other groups. What about DC++, OurTunes and Sendshare? I know they can track BitTorrents, but those other programs are recognized by them, but I would assume it’d take some more resources to track those.
Either way. Pretty exciting stuff. Though this article could have dug a little deeper. Plus, is UW-Madison really bucking national trends? From what I heard, Michigan isn’t handing names to RIAA either, and a “valid subpeona” seems to be the standard from what I’ve seen. There are 13 other universities involved in this round of lawsuits, so I’d like to see their reactions as well.
IP hash: f8cc29f2
The RIAA can screw itself
IP hash: e39c1636
I don’t see how the RIAA will stop everyone. Most of the illegal stuff is being downloaded from computers in foreign countries. They’re out of the RIAA’s reach! And all you have to do to evade detection is move the file out of your shared folder immediately after downloading and there’s nothing to detect. They can’t catch them all
IP hash: 6fabc93d
OH NO! Where will I get my bootleg Britney Spears music? Paying for “art” like that just cheapens her talent.
IP hash: 52d4725e
I love Britney Spears. - Germain E. Stemme
IP hash: 22e20b5b
Here’s Britney Spears’ private jet. Notice anything? Britney used to have a Gulfstream IV. Now she’s had to sell it and get a Gulfstream III because people like you chose to download her music for free. The Gulfstream III doesn’t even have a remote control for its surround-sound DVD system.
IP hash: bd487fdc
This is Mafia-style extortion, except with a lot less style & finesse. Props to the Uni for not being the tool of the MAF-IAA
IP hash: 701da3b2
Given that programs like OurTunes operate ONLY on your local network (like Resnet for example) and are not routable, it is unlikely that the RIAA could come after you for using that.
Likewise, thus far the RIAA has been going after UPLOADERS of music >>> than downloaders of music. In other words, if you are going to download from Bittorrent, DC++, etc… turn off sharing or turn your connection speed down to something quite small (like 10KB/s). Otherwise with a fast campus internet connection, you share more than the typical user and make yourself a bigger target.
If you want to download music, movies, etc… without getting slammed by the RIAA/MPAA would be through Usenet providers such as easynews.com Usenet is an old protocol dating from the 80s, but is a good source for illicit material because: it is fast, you don’t have to upload anything and best of all, by its very design, its untrackable. Thats right: unlike Bittorrent, DC++ et al; usenet is not trackable.
On a seperate note, if you want to share music within the dorms using Ourtunes, help everyone out and download a standalone server called “Firefly Media Server” (http://fireflymediaserver.org/). It is an iTunes server but it doesn’t have any sort of userlimit so everyone can grab your music (but remember, it is non-routable so it can’t be traced ourside of the local network [eg. no RIAA]).
Hopefully these tips will help you both download to your hearts content and stay out of the sights of the RIAA.
Sincerely, —UW Pirate du Jour
IP hash: 1cb08049
Even in non-US countries, RIAA or simmilar asociations sue people. At our university (CTU Prague, Czech Republic) as far as I am concerned, nobody received a subpeona yet, but we do receive a substantial amount of cease-and-desist notices, which result in a disciplinary action of our own, since they are a proof of breaking our own rules.
The usual network is BitTorrent, followed by DC and e-Donkey.
IP hash: 0ad3f586
Come to Canada, where you actually have rights and private lobby groups can’t rape you.
Fuck the RIAA, come get me you assholes. I’ll pirate until the day when you learn that the market doesnt want to “rent” songs, and we hate DRM.
We are the people, we are your customers, sueing us isn’t good business. You will lose, and it is only a matter of time.
IP hash: 9a706ac4
To all those who think that purely local P2P systems are “unlikely” or even “impossible” to be uprooted. I lived on the campus of a European university, and we had such a system (DC). One idiot out of several thousands sold copies of the stuff he downloaded there. That got the attention of the police, he cooperated to minimize his punishments, the police / DA got an “inside” view, and boom, gone were the servers after a raid.
As for Usenet being untrackable, that is only true if the Usenet providers do not log access. If they do log, or are forced to do so by a judge in some particular case, Usenet becomes very much trackable.
What I want to say—don’t feel too secure just because you’re not as exposed as an Internet user running Bittorrent or something like that over AOL.
IP hash: 9edbf935
To those who think they can’t catch you for sharing on the local network or over I2, be careful. They have their hands and eyes everywhere. There have been some reports that the RIAA has students working for them on campus networks.
Bit Torrent works in a way that automatically makes you share whatever you download. That’s what makes it so efficient. I’m not sure you can turn off the sharing entirely on it, because by nature, that’s what it does and your download speeds are proportional to your upload speeds.
As far as I know, the only 100% fool proof way of downloading music is how we used to do it back in the day… FTP that required a login (since anonymous FTP defeats the purpose and is open to anyone). That way you know you’re not sharing (which you really can’t tell with most filesharing programs) and the person sharing knows who he’s sending files to.
I applaud UW’s decision to not bend over for the RIAA, but I do hope they’re passing on some information to the students in question as a sort of warning of possible impending subpoena.
IP hash: 529d07e2
Wonderful, finally someone with the proper perspective on the rule of law, rather than cave in to the ham handed RIAA (and MPAA). Interesting that the UW had the forsight and cuhones to stand up while UM (known for their ball clubs) didn’t seem to have any when it came to this issue.
Well done UW!!!!!!!!!! Make the creeps go through the process and then catch (if they can) those who deserve catching.
IP hash: 79128b29
usenet is indeed trackable. That said, a lot of usenet service providers say they do not maintain their logs. I wonder if that wouldn’t change should the RIAA or MPAA, or whoever, started filing suit with them claiming the usenet service providers themselves infringed copyrights by making the posts available for donwload.
IP hash: 79128b29
usenet is indeed trackable. That said, a lot of usenet service providers say they do not maintain their logs. I wonder if that wouldn’t change should the RIAA or MPAA, or whoever, started filing suit with them claiming the usenet service providers themselves infringed copyrights by making the posts available for donwload.
IP hash: 2a6ef6cf
don’t give in
IP hash: e3c96b82
Note that by UW not fowarding these threat letters, it raises the cost to the RIAA to send them. This will discourage from using this practice.
IP hash: 4a302301
Usenet certainly is trackable. Usenet servers log every connection of every message being read and posted just like any other server out there. I’ve ran one for a local ISP for years before we partnered with one of the larger providers. Easynews and other usenet providers may say they are 100% anonymous, but if they get subpoenaed, they will start logging everything you do like any other service provider. If a song gets posted, and the RIAA wants to know who is downloading it or even posted it, and they can get a judge to write off on it with an agency, they’ll be able to track it all.
Nothing is anonymous on the Internet anymore. And if they say they are, they can be ordered to snoop at will despite what they say.
IP hash: 157cde68
Almost true about bit torrent… Several big movie companies have been seeding torrents becasue you can view the IPs of the downloaders and uploaders of the torrent. I would be surprised if people associated with the RIAA are not using this practice as well. If you use Bittorrent when you download they can see you bottom line.
IP hash: af786df4
It is not illegal to download music and movies. It is not illegal to download music and movies.
This needs to be said one more time.
IT IS NOT ILLEGAL TO DOWNLOAD MUSIC AND MOVIES. Piracy is a myth. Did you make money off of it by download? No. Did the person offering it make money off of it? No. Did the person originally offering it buy it? Most probably.
No law is broken. I’ve still yet to see the legal precedent that shows it has.
IP hash: 5b263d0d
See the real issue is… the RIAA knows damn well that if they try and actually take these cases to court they WILL lose. Its so easy to fight this crap when you’re actually in court because what they’re doing with these settlement letters is essentially coersion. As a matter of fact i think there have already been instances of judges telling the RIAA to F* off because they are wasting taxpayer dollars and clogging up the legal system. Furthermore downloading won’t get you in trouble.. its uploading.
-The FAT Man
IP hash: 5b263d0d
See the real issue is… the RIAA knows damn well that if they try and actually take these cases to court they WILL lose. Its so easy to fight this crap when you’re actually in court because what they’re doing with these settlement letters is essentially coersion. As a matter of fact i think there have already been instances of judges telling the RIAA to F* off because they are wasting taxpayer dollars and clogging up the legal system. Furthermore downloading won’t get you in trouble.. its uploading.
-The FAT Man
IP hash: 5b263d0d
sorry for double posting.. the other point i forgot to make about going to court is this: when they have to pay a couple lawyers at least 700 bucks to come to court for you they aren’t really ever going to get the 700 they wanted from you as a settlement… i think you see where i’m going with this.
-The FAT Man
IP hash: 574d21ae
open wifi is everywhere. Find it be anonymous.
IP hash: f9b7e45a
To Anonymous (March 20, 2007 @ 11:30am):
you are plain wrong. Just read the law! No electronic theft act “NET Act”:
The NET Act was signed into law by President Clinton in December 1997, making it illegal to reproduce or distribute copyrighted works, such as software programs and musical recordings, even if the defendant acts without a commercial purpose or for private financial gain. If the defendant reproduces or distributes 10 or more copyrighted works that have a total value of more than $2,500, he or she can be charged with a felony, and faces a sentence of up to 3 years imprisonment and a fine of up to $250,000. A defendant who reproduces or distributes one or more copies of copyrighted works with a value of more than $1,000 can be charged with a misdemeanor, and face up to one year in prison and a fine of up to $100,000.
Contact: Chris Watney, U.S. Department of Justice Office of Public Affairs, (202) 514-2007 ( http://www.usdoj.gov/criminal/cybercrime/netconv.htm )
Note the word reproduction? you reproduce if you download, and fellow pirates know that a good HDD can easily hold enough files to get those retail values together given $0.99 per piece!
IP hash: f9b7e45a
Quote: “But all their attempts fail. The consumers stand up against the industry’s campaigns. The idea of sharing knowledge and information now becomes more important than ever before. Free music platforms soon dominate the world of digital music. In these platforms, people share music as cultural possessions. Free software as Linux and projects as Wikipedia become the cultural assets of a new digital world.
The entertainment industry started a war on two fronts. It started a war against a 25-year-old, organized underground subculture which the industry had created itself and could not stop. But their greatest hubris was to fight against the whole net culture.
As a protest against the industry’s sanctions, millions all over the world now program free software, share data, information, and knowledge. Not only as a part of a subculture, not only in the underground but anywhere and with anyone. The age of free culture, the second Internet revolution begins, it begins now …”
:-)
IP hash: d025588a
“The NET Act was signed into law by President Clinton in December 1997, making it illegal to reproduce or distribute copyrighted works, such as software programs and musical recordings, even if the defendant acts without a commercial purpose or for private financial gain.”
So this would make copying a CD to your MP3 player a crime.
IP hash: 1f5a77e0
Yes, the RIAA argues that copying a CD to your iPod is a crime. They do make more money, after all, if you’re forced to buy both the cd for your stereo and the iTunes download for your iPod.
IP hash: f42bd9a1
Fsck the RIAA!@ UW kicks ass for their stance on this!
IP hash: 24860dca
“RIAA argues that copying a CD to your iPod is a crime.”
True. So why don’t they go after Pres. Bush? (“I have Beetles on my IPod.”)
Students have been targeted for one reason. They are easy. They do not have deep pockets for a lawsuit (the RIAA still has never won a case against downloading in court).
Universities have a right to protect their interests which includes students and availability of legal file sharing - it does not take a genius to see that file sharing does have legit purpose for education.
Unfortunatley, the RIAA lost it’s IQ to greed.
Universities should realize they have been targeted because they were ‘easy’ and band together to protect their interests.
80% of Congress (or more) has copyrighted material on their IPod which RIAA considers the same as downloading and copying. Why is Congress still approving extortion?
IP hash: 042b2b32
The RIAA vs. John Doe, a layperson’s guide to filesharing lawsuits Posted Aug 7th 2006 12:30AM by Grant Robertson Filed under: General
Ray Beckerman of Recording Industry vs. The People put together an article that explains how the RIAA’s militant enforcement arm legal team find, obtain records on and sue ISP account holders who may or may not have ever been users of P2P applications. It’s a great reference, but (no offense intended to Ray) it’s dry like a bread-sandwich.
I decided to take a stab at rewriting it in something closer to English than lawyer. In hopes that it would be more accessible.
So, with thanks to Ray Beckerman, let’s take a look at The RIAA vs. John Doe, in what I hope serves as a layperson’s guide to filesharing lawsuits.
The RIAA vs. John Doe, a layperson’s guide to filesharing lawsuits
The RIAA lawsuits pit a very few, very large record labels (sometimes referred to as “The Big Four”) against average people who are customers of an Internet Service Provider. These average people are also mothers, grandmothers, dialysis patients and university students. In some cases they’re even deceased. In one very highly publicized case, the person was actually not-very average at all; they didn’t even own a computer.
The RIAA does not involve musicians in the lawsuits it files. For example, if you’re sued for the alleged swapping of a song by Puff Daddy, Sean “P. Diddy” Combs name isn’t on the lawsuit in the place where it says “Plaintiff”. The Plaintiff in these cases are one or more of the very large record labels or their subsidiaries that are members of the RIAA (i.e. Warner Music Group, Sony BMG, etc).
The person being sued may have never shared a file, or logged on to a P2P network. They haven’t been convicted of any crime involving copyright protected material, nor have they been charged with one. They’ve simply been sued in a “civil” action. In the United States, anyone can sue anyone else for anything at any time. It’s quite possible (and maybe even more likely than not) that these average people didn’t violate anyone’s copyright.
In any event, the burden of proof for a civil suit is much lower than that of a criminal prosecution. There is no possible way that anyone who has been sued by the RIAA could be convicted of any crime with the evidence the RIAA collects.
In fact, to clear up a point of media confusion, often the defendants in these suits are incorrectly referred to as “downloaders”. In actuality the RIAA has no ability to show, and has done no investigation to prove that anyone downloaded anything at all.
So, what is the RIAA suing these people for, if not for downloading music? This is where things get just a tad bit technical, but hang with me and I’ll try to explain.
How the RIAA identifies the people they sue
First, a techie, working on behalf of the RIAA, searches a peer to peer network for say, “Avril Levine” just like any other P2P user would. Search results are returned, and the techie then sifts through them and focuses in on a single “file”.
The “file” in question may have the name “Avril Levine - Sk8r Boi.mp3”, and in many cases on P2P networks, there may be several files that carry that same file name. I should point out, just because a file has the name “Avril Levine - Sk8r Boi.mp3”, that it’s just a name. I could rename “resume-Grant_Robertson.doc” to “Avril Levine - Sk8r Boi.mp3” and, unless you downloaded and listened to the file with an Mp3 player, you’d never know.
As Rumsfeld Carl Sagan put it, “absence of proof is not proof of absence.” The RIAA holds fast to that philosophy; when they present evidence to the court, they don’t play the judge the song they claim you downloaded. The RIAA only shows the judge a screen capture of the filename, along with a username from the peer to peer network
The techie, working on behalf of the RIAA, uses another program — separate from the P2P software — to find the Internet address (IP address) from which it appears the file they’ve searched for can be downloaded. They take a screenshot of the peer to peer software on the techie’s computer, with the peer to peer “username” and the filename they searched for, and they attempt to link the “username” to the IP address.
This is where the investigation portion of the RIAA’s campaign ends, and the lawsuit portion begins. If you’re a really sharp reader you may be asking yourself how the RIAA can sue an IP address, or a peer to peer “username” in a court of law. Well, the short answer is, they can’t. Don’t worry, the RIAA has very smart, very well paid lawyers who have figured out a way around that problem.
The Lawsuit Begins
The RIAA sues “John Doe” in state court. They can’t sue in the state court of the person who is paying for Internet access (and therefore, the IP address), because at this point they aren’t even sure in what state that IP address might be. Instead they sue John Doe in the state where the Internet Service Provider’s main offices are located. In most cases, this isn’t the state where the IP address (or John Doe) lives.
This is a legal gray area. In most cases the RIAA lawyers know that the IP address (and therefore John Doe) isn’t in the state in which they are filing suit. That means John Doe isn’t actually subject to the laws of the state in which they’ve been sued (after all, I can’t sue you in New Jersey for something you did in Florida when I’m in California.. it just doesn’t work that way). That being the case, John Doe has no real way to argue that he isn’t subject to the laws of the state in which he’s been sued (John Doe doesn’t even know he’s been sued yet.. in fact, no one knows who John is yet)
The RIAA doesn’t just sue one “John Doe” at a time. They instead sue hundreds of John Does at a time, all at the same ISP. This is another legal gray area, because under the “Federal Rules of Civil Procedure”, there is no reason to sue all these separate people in the same lawsuit. If the courts required the RIAA to adhere to the letter of the law, they would be forced to sue each John Doe individually, which would greatly increase the amount of effort and paperwork required. Unfortunately, most ISP’s can’t waste the time and resources that it would require to argue against the way the RIAA is suing their customers. Since the ISP can’t argue on behalf of “John Doe”, the RIAA wins this stage.
John Doe gets a letter from his ISP, along with paperwork from the court case against him. The paperwork tells him (in legal speak, and — in many cases — in a way he does not understand) that a legal order has already been granted against him. So, instead of getting a letter telling John Doe that he needs to do something to protect himself in the courts, John Doe is sent a letter stating he is no longer protected.
At this point, John Doe isn’t even given documents that brought this whole process to bare. These documents include:
the summons and complaint the order that was filed without John’s knowledge the court rules needed to defend himself So, John Doe now knows he’s being sued, or at least that something is rotten in Denmark. What john doesn’t know is what the case is about, what the RIAA is basing the case on, or why the court has already ruled against him.
Regardless, John is given days to file a motion to stop the subpoena of his account information. John’s not a lawyer, but he needs one, fast! Unfortunately he won’t be able to tell the lawyer what he needs to do. Lawyers are smart, but they aren’t magic. A lawyer can’t make an informed decision about a clients’ case unless he has all the facts. Because the ISP has only informed John that he’s lost some sort of motion to discover who he is, John’s lawyer doesn’t have the information about why he’s lost the motion, or what they told the court John did.
John’s lawyer is at a disadvantage. In many cases, the time John has to defend against the court order is lost in trying to figure out what any of this mess is about. Unless John’s lawyer is aware of the tactics the RIAA uses to keep the defendant’s lawyer on his toes, John’s lawyer is really unable to tell John what is the smartest thing to do. Lawyers went to law school; when they give advice, they don’t give it half-assed. TA lawyer will either tell you what they are sure of, or they tell you they aren’t sure. In this case, John’s lawyer isn’t sure, so he can’t tell John what to do.
What’s maybe even worse is, if John’s lawyer could figure out what has already happened, he’d need to file a motion to dismiss the order. John’s lawyer would be happy to do that, and it’s likely that his motion would win, and the whole thing would stop right here because, let’s face it, the evidence the RIAA has against John is really, really flimsy. Unfortunately John’s lawyer probably can’t. Lawyers are given the ability to practice law state by state. To practice law in all US states, John’s lawyer would have to take 50 bar exams and keep up with 50 states worth of ongoing requirements to practice law. Most lawyers are only admitted to practice in a handful of states, and in the case of really expensive lawyers, in federal jurisdictions and maybe in front of the Supreme Court. John’s lawyer would have to refer John to a lawyer that can practice in the state his ISP’s main offices are in, and that takes time.
If you can’t defend yourself in court, you lose. Remember that time that your friend decided to show up in court to contest that speeding ticket? The Police Officer who wrote your friend the ticket didn’t show and, your friend walked away victorious. Tthe judge threw that ticket right out the window. The same thing happens to the RIAA when John doesn’t show up for court. The judge does the only thing he can do under the law, he rules against John because John didn’t show up to defend himself.
Homer Simpson once said “The two sweetest words in the English language.. De Fault”. John probably doesn’t agree with Homer Simpson on that one, but the RIAA lawyers do.
The RIAA asks the court for “immediate discovery” but, John still isn’t in court. Typically in the US justice system if one party in a trial asks the court for something the other party has to be made aware that they’ve asked. That gives both sides an equal opportunity to argue in front of a judge over whether the motion should or should not be granted. Once upon a time it was rare that the court would grant a motion without the defendant present (or “ex parte”), now it seems to be regular practice to grant “ex parte” discovery orders, which puts John (once again) at a big disadvantage.
For what it’s worth, courts in both Canada and the Netherlands have routinely balked at this stage in similar cases. They’ve refused to grant the motion that would allow the RIAA to find out who John Doe is, stopping the RIAA (or the IFPI) dead in its tracks. In both countries the courts claimed that the information presented to them is way too flimsy to warrant extreme action like making the private account information of John Doe a public matter.
John probably wishes he was in one of those two countries right about now. The judge grants the RIAA’s motion for “immediate discovery”, which, in English, means that the RIAA can subpoena the ISP for John’s account information. The subpoena is legally binding, and unless the ISP wants to fight each subpoena individually (which is crazy.. and would cost millions when dealing with hundreds at a time) the ISP has to give the RIAA all the information they have on John Doe.
What the RIAA does isn’t illegal, but it does exploit the law to its edges to take advantage of the courts and the ISP. Nevertheless, the RIAA now has the information it needs.
The RIAA, now having our John Doe’s real name and address, drops its suit against John Doe.
Since the case has been dropped, there is no appeal. No other judge gets a crack at interpreting the questionable tactics and strategy that the RIAA used to win the motion.
Where one lawsuit ends, John’s trouble begins in earnest. The RIAA now knows who he is, and where he lives. They don’t send two jackbooted thugs to John Doe’s house in the night to make a “point”. That would be far too brutish and, as a society we’ve mostly grown beyond bashing each other with sacks of oranges in the middle of the night and running away. The RIAA uses the modern equivalent of the midnight raid; the settlement offer.
The RIAA Settlement Offer
The RIAA drops a U.S. postal stamp on John Doe and sends him a settlement demand. Two people can enter into just about any contract for any purpose in the United States (well, unless they’re gay and want to marry.. but that’s for another time) and the RIAA asks John to enter into a contract with them.
The contract states that the RIAA won’t sue John, which is pretty attractive when you’re John Doe facing all the legal might the multi-billion dollar recording industry can muster. We don’t hold people at gun point (or hit them with bags of oranges in the middle of the night), we hold them at the point of a lawsuit.
The contract, that same one that says that the RIAA won’t sue John if he signs it, says John agrees that the RIAA is right when it says he owes them $3,750. It also says that the RIAA doesn’t plan to negotiate with John, and contains several one-sided provisions that place restrictions on John and what he can do if he wants to keep from being sued while not placing any restrictions on the RIAA and what it can do. The contract also says that John agrees that peer to peer filesharing is copyright infringement (which isn’t actually true.. sharing copyrighted files is copyright infringement, but there are other uses for peer to peer filesharing that aren’t infringing).
The settlement contract also doesn’t keep John from being sued by other interested parties. Remember when we told you that if you were sued for sharing Puff Daddy that Sean Combs wasn’t the Plaintiff? Well, when you sign the settlement, you agree that you did what the RIAA says you did. If the artist wants to sue you next, they still can. The RIAA settlement makes it clear that they aren’t protecting (indemnifying) you against other lawsuits.
So, John can give the multi-billion dollar recording industry and its team of lawyers almost $4000 and they’ll go away. Four thousand dollars is a used car, and not a very nice used car at that. On the other hand, if John doesn’t settle, and if the RIAA takes him to court and wins, they could get as much as $750 per song. The list of songs they say John shared is really long, and at $750 each it’s way more than that $3750 they’re asking for. Plus, if John loses his court case He’ll still have to pay his lawyer, plus pay the RIAA, and maybe even pay the RIAA’s enormous legal fees.
You begin to understand why most people, when presented with an RIAA lawsuit, just settle. Losing a legal fight with the RIAA could mean John loses his house, his retirement, his kids college fund, everything he has worked for. Winning will probably still be more expensive than settling, unless John can get the court to force the RIAA to pay his legal fees when he beats them.
Beating the RIAA would be really sweet. But, it’s a big gamble if John doesn’t. What happens if John refuses to settle (or just doesn’t respond)?
What Happens When The RIAA Files Suit After Offering A Settlement
John says, “No deal” and the RIAA says, “See you in court”. The RIAA sues John in the district where he lives.
When the RIAA files the complaint against John, it’s just a boilerplate filesharing complaint they use every time someone fails to settle with them. They don’t customize each one, which makes this a cookie cutter process for them. They simply go back to the start of this process, subpoena hundreds more names, and send out new settlement letters.
The complaint accuses John of “downloading, distributing, and/or making available for distribution”. The RIAA also attaches to the complaint two lists of files they accuse you of sharing. The long list, “Exhibit B” contains, in essence, a list of every possible thing they think you might have even been capable of sharing at the time. This is the same list they sent you when the settlement offer was given. The short list, “Exhibit A” is a list of files they will ask for damages for. The RIAA is claiming that these files were shared via an IP address that, when subpoenaed, the ISP mapped to your Internet connection.
What the complaint doesn’t contain is any detail on how, when or where the alleged copyright infringement took place.
What if our John Doe just ignores the whole thing? Remember that “default judgment” when he wasn’t able (or aware) to show up? The RIAA makes a motion for (and usulally gets) a default judgment against John Doe for $750 per song listed in Exhibit A (the short list).
Songs on iTunes are 99 cents, and 65-70 cents of that goes to the record company according to most estimates. At $750 per song, you’re on the hook to the RIAA for over 1000 times the value of their alleged loss. The RIAA is claiming, without any evidence, that you kept over 1000 people from buying legal copies of the song by giving them a free copy.
The huge dollar figure the RIAA claims you’ve cost them has come under quite a bit of attack. A current case in Brooklyn, NY may ask the court to rule that $750 per song in damages is unconstitutional. If our John decides to go to court, what are his legal options and how does he defend himself? Again, this gets complicated and, there are no easy answers. John is being given a baptism by fire in the US legal system.
Some defendants have tried challenging the “boilerplate” complaint the RIAA has been using. So far, challenging this boilerplate complaint has met with mixed success. A great number of these cases are still in “litigation”, (the process of filing motions, hearing arguments and running up big legal bills for each side) so it’s very hard to say with any certainty what strategy our John Doe and his lawyer should adopt. The only way for us to look at the options John has is to look at the path other cases have followed.
Widely celebrated victories are few, but they do exist. They include Candice Chan, the mother of Brittany Chan who has been made famous as the 13 year old Jane Doe from Michigan, and just recently, Debbie Foster and her daughter Amanda from the state of Oklahoma.
These two cases took very similar paths. The attorneys for both Foster and Chan made what’s called a “motion for summary judgment.” This is similar to playing cards with your buddies and “calling” the other player’s cards. It’s the legal version of saying “put up, or shut up”.
In both cases, the RIAA, when asked to “put up” and show the evidence they had against the defendant, withdrew their complaint.
In the case of Debbie Foster, the judge ruled that even though the RIAA had withdrawn the complaint, they are still potentially liable for the attorney’s fees that Foster incurred by defending herself. The court has asked Ms. Foster and her attorney to come up with a dollar amount for legal costs, and will quite possibly force the RIAA to pay the fees for which Ms. Foster would otherwise be liable.
In the case of Chan, the first known victory in one of these complaints, the RIAA was rather upset after withdrawing the complaint. The RIAA went back to court and sued the 13 year old girl directly (rather than through her parents). The RIAA asked the judge to appoint a “Guardian ad litem” (like a surrogate parent for the purposes of trial), and the judge refused. The judge’s reasons for not appointing a guardian were technical, and related to the fees a guardian would accrue during a long case. Still, the RIAA was sent home packing in a very public display of sour grapes.
It might seem that asking for “summary judgment” (that legal version of “put up or shut up) is the way to win against the RIAA. Unfortunately it isn’t so simple.
In three other recent cases, when a motion was made for summary judgment, judges declined. The reason given by the judges in all three cases? They didn’t know enough about peer to peer technology to make a ruling. One judge speculated that the RIAA may have the ability to show the court that the defendant really did download or upload something, and thus that the complaint’s basis of “making available” copyrighted material may be invalid.
In all three of those cases, the common factor is that the judge has declined to decide up front if “making available” actually constitutes copyright infringement.
In any event, being sued by the RIAA is not an enjoyable way to spend your time. The burdens placed upon our fictional John Doe are pretty steep, especially considering the fact that the RIAA may not be able to prove that John himself actually did anything wrong. This scenario is being repeated all over the United States, in courtroom after courtroom.
What happens to the $3750 (or the $750 per song) when you pay the RIAA? The artist you allegedly ripped off doesn’t see a dime of compensation. The proceeds from the RIAA lawsuits are rolled back into the legal fund the RIAA uses to pay its legal costs. So, in essence, every person who settles for the $3750 only feeds the machine, so it can be unleashed on another person.
The best advice if you are sued by the RIAA is to quickly retain a lawyer who has some experience dealing with RIAA cases. Having knowledgeable council early on won’t stop the process from being difficult, but can give you a better chance of protecting your rights.
Update: Ray Beckerman, who wrote the source research for this article, also has provided a list of lawyers who are handling RIAA cases. Several people have pointed out that this would be a useful inclusion at the end of this article. If you’re sued by the RIAA, and you’ve come here looking for info, I urge you to contact one of these lawyers or other appropriate counsel as soon as possible.
Grant Robertson is a writer and technology consultant living in Halifax, Nova Scotia.
IP hash: 05554271
RIAA sucks big cock. We all download since 1998 . Since that time I have we have not bought one cd. So many people download. They can do nothin :-)
IP hash: a482de64
LIMEWIRE BIOTCH
IP hash: 903782ef
To The RIAA: F**K OFFFFFF!!!!!! The truth is that you have to do this to us because the actual artist doesn’t need you any more. So Sorry B&ches but you are being faded out of the music industry. You will not create enough revenue to remain in business for long. In another 10 years its “SEE YOU F^&%$%$K HEADS! Eat the dust of the fast approaching completion of total global information and file sharing capabilities.” You can not stop what is inevitable. You may for a time get away with stealing money from people that enjoy and utilize the current and inevitable standard of computerized sharing. “Sharing is caring” ASHOE. SO Fk “Put up or shut up.” I say “Shut the f*k up! QUIT STEELING FROM PEOPLE!” Its not our problem you want to rape the artist so much that they are forced to create their own record labels. QUIT STEELING OUR MONEY AND THE ARTIST MONEY. YOU GREEDY BASTARDS!
Thanks for letting me rant and rave. “God Bless Technical America and damn anyone in its way.”
IP hash: fcda8bcf
Hmm…radio stations play thousands of songs for free everyday, remember back in the day when you just popped in a blank tape and recorded your own mix off the radio? Hmm..whats different now? Just because it’s in digital format?
IP hash: df45c365
What we do now is the same as the days of cassettes - only now there is a way to track you. And what about buying music secondhand? The RIAA etc., don’t get any money from that either.