p2pnet.net News:- 2007 could be the worst year yet for Warner Music (US), EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan and Germany). It could be the year their whole, flimsy sue ‘em all house of cards comes crashing down in America.

At the end of this month, on January 26, to be precise, oral evidence will be presented in Elektra v Barker, a landmark case brought by the multi-billion-dollar Big 4 record labels against one of their own customers, a single New York woman whose job it is to help mentally disabled people. And the case could could affect every man, woman and child in the US who loves music, with repercussions echoing around the world.

It’s being brought by the Big 4’s RIAA (Recording Industry Association of America) against mental health worker Tenise Barker who is, says the ‘trade’ organization, a file sharing criminal who’s depriving its owners of their rightful earnings.

Nor is she the only one being accused. Warner, et al, have leveled the same sweeping charge at some 20,000 or so other American men, women and even young children.

“Were the courts to accept this misguided view of copyright law, it could mean that anyone who has had a shared files folder, even for a moment, that contained copyrighted files in it, would be guilty of copyright infringement, even though the copies in the folder were legally obtained, and even though no illegal copies had ever been made of them,” Ray Beckerman, one of the lawyers representing Barker, told p2pnet last year.

None of the sue ‘em all cases has yet been heard to its conclusion in any court of law. Yet the Big 4 present the people being pilloried as though they’ve been fairly and legally tried and convicted of the non-existent crime of file sharing. And the mainstream media faithfully report the cases just as though the material on which they’re based is accurate and originates with credible and reliable sources.

Moreover, until now many, if not most, of the often elderly and technically inept judges hearing RIAA cases seem almost to have relied on RIAA ‘experts’ and lawyers to tell them what to do.

But this time around things will be different. The arguments will be heard by judge Kenneth M. Karas, 42, someone who’s familiar with the kind of technology he’ll be hearing about, and someone who’s likely to ask his own informed questions, at length and in depth. And the grilling could be bad for the RIAA whose ‘expert testimony’ is already being held up to close and unwelcome scrutiny in other cases.

In fact, Karas could well set the standard for the future and if you’re in New York on January 26, or you can get there, Show Up! Let Karas and the rest of America know just how important it is.

Assertion is as ridiculous as claims

The Big 4 are trying to spin the proposition that if there’s a shared files folder holding bought and paid-for copyrighted song files on your hard drive, and it’s been online for even a single moment, you’re an illegal distributor: a hard-case crook: a criminal. And that’s the case even if you’re only a child of 12, say Warner Music, EMI, Vivendi Universal and Sony BMG.

The assertion is as ridiculous as their claims that files shared equal sales lost. What it means is: if you let someone else, or a lot of someone elses, listen to tracks you thought you’d bought when you shelled out $20, or however much it was, the Big 4 labels, who collectively and singly are worth billions of dollars, lose money. A huge amount of money.

Their answer? Not produce better music (they’re heavily and constantly criticized for lthe formulaic ‘product’ they turn out). Certainly not start charging reasonable wholesale prices so their buyers an in turn ask a fair rate for downloads. Instead, fix prices at criminally high rates, and then sue their own customers in an attempt to force them to buy the ‘music’.

Knock, knock, who’s there?

In Canada in 2004, Warner Music, et al, tried to get a Canadian court to force five Canadian ISPs to reveal the identity of 29 clients so the Big 4 could sue them.

However, “No evidence was presented that the alleged infringers either distributed or authorised the reproduction of sound recordings,” justice Konrad von Finckenstein ruled. “They merely placed personal copies into their shared directories which were accessible by other computer user(s) via a P2P service.”

The importance of Elektra v Barker can be gauged by the fact it’s become a battle of the giants. Hollywood’s MPAA (Motion Picture Association of America) is in lock-step with the Big 4’s RIAA (Recording Industry Association of America) in trying to drive it through.

On top of that, “the American Association of Publishers requested permission to file a brief, and the US Department of Justice submitted a ‘Statement of Interest’ arguing against the Electronic Frontier Foundation, says Recording Industry vs The People.

However, equally significant is the fact the EFF (Electronic Frontier Foundation) and Computer and Communications Industry Association (CCIA ), US Internet Industry Association (USIIA) filed an amicus brief in support.

The case has shocking implications for the Net.

How did it start?

Here’s how Tenise Barker described it to p2pnet.

I heard a knock at the door one evening. ‘Who is it?’ I asked. ‘Tenise Barker,’ a woman’s voice rang out. ‘Yes,’ I answered through the closed door because the voice did not sound familiar to me. ‘I have some mail for you. It came to my apartment,’ said the voice on the other side of the door.

I was surprised by what I heard. I looked through the peephole. I saw a Caucasian woman, which seemed odd because she said she had mail for me, and I didn’t know of any Caucasian people living in my building. I opened the door. ‘Tenise Barker?’ the woman asked. ‘Yes,’ I said. She handed me a large envelope with a big smile on her face and said, ‘Have a good night,’ as she walked away. I stood there with the door still open looking into the empty hallway for a few seconds after she left because I was a little confused about what had just transpired. I went into my apartment, locked the door, opened the envelope and learned that I was being sued for file sharing. I was shocked, afraid, and upset all at the same time. The envelope contained a letter that told me I had two weeks to respond to the summons. I did not know what to do.

The next day I called a friend of mine who works at a law firm to see if I could get some advice. She said that she would try to talk to an attorney at the firm to see what they’d suggest. She and I went back and forth for about a week because the attorney she wanted to speak to was away. Finally when she spoke to the attorney, the attorney suggested I find a lawyer who’s familiar with copyright laws. With one week in the wind and another in the balance, I contacted another friend who informed me of a site that listed lawyers who were taking on the cases of people being sued by the record industry. My search led me to Ray Beckerman.

My whole experience with being sued by the RIAA has been frightening, and very stressful. The fear of not knowing what the outcome of this case will be has been a constant source of stress. Attorney fees have been added to my list of expenses, and I can’t imagine how costly this whole experience will end up being when this is finished. At one point I considered settling, not out of guilt, but because I wanted this case over with so I could move on with my life. However, I learned that if I settled I would have to pay about $6000. I would be given six months to pay it, and it had to be paid in full. Furthermore, settling the case didn’t protect me from being sued by artist and musicians. I was caught up in a catch-22. I felt trapped because I could not afford to be sued, and I could not afford to settle. Nevertheless, I knew that I was in this for the long haul.

It is my understanding that the RIAA is suing me because I have music files on my computer. I couldn’t believe that. I was unaware of copyright laws. I mean, why create P2P file sharing if it’s a crime? Why create the ability to rip files if it’s a crime? Is the RIAA going to go after the manufactures of computers next because they create the devices that make it possible for people to rip music files? Are P2P file sharers solely at fault? Or are they pawns being sacrificed in a corporate game of chess?

I love music. I grew up in a house where music was played all the time. We had milk crates filled with albums. We had so many records that people would come to our house and be amazed by the size and content of our music library. Any song they requested we had it. So to be sued for having music files on my computer is an insult. It’s a slap in the face. This experience has left such a bad taste in my mouth that I wanted to swear off music. I wanted to boycott the giants who were targeting me. However, music is in my blood. As I said before I love it, so I continue to purchase it. I know it all sounds bizarre because in a way, I’m funding their attacks against me and others like me. A catch-22, that’s exactly what this is, and I’m caught in its grips. I just pray that in the end this will all work out in my favor.

Will this be the beginning of the end of the RIAA’s attacks on their own customers?

Stay tuned.

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If your Net access is blocked by government restrictions, try Psiphon from the Citizen Lab at the University of Toronto’s Munk Centre for International Studies. Go here for the official download, here for the p2pnet download, and here for details. And if you’re Chinese and you’re looking for a way to access independent Internet news sources, try Freegate, the DIT program written to help Chinese citizens circumvent web site blocking outside of China. Download it here.

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Also See:
Tenise Barker – RIAA’s latest file share claim, January 26, 2006
unwelcome scrutiny – Utrecht MediaSentry decision, December 18, 2006

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This entry was posted on Monday, January 1st, 2007 at 4:26 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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