p2pnet news | Freedom:- “Several weeks ago it was discovered that a California federal judge, in rejecting an RIAA application for default judgment, had dismissed the RIAA’s standard complaint for failure to state a claim, calling it “conclusory” “boilerplate” “speculation” in Interscope v. Rodriguez.”
“In the wake of that decision, a Queens, New York, woman being sued in Brooklyn federal court, Rae J Schwartz, has told the Court that she is making a motion to dismiss the complaint in her case, Elektra v. Schwartz.”
So says an email from New York lawyer Ray Beckerman who’s both Rae-Jay’s lawyer and the man who runs the vitally important Recording Industry vs The People blog.
He goes on, “This is the first post-Interscope challenge to the RIAA’s boilerplate, of which we are aware. This is the same case in which the RIAA had sent a letter to the Judge falsely indicating that AOL had “confirmed that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed”.
Other mothers in other countries
Rae-Jay is another mother accused by the Big 4 corporate record labels and their hired legal guns of being an illegal online distributor of massive quantities of copyrighted musis. It’s a charge she’s completely innocent of, as the ‘plaintiffs’ have known from the very beginning.
Nor are cases such as Rae-Jay’s unique to the US where the labels conduct their lawsuits under the RIAA, short for Recording Industry Association of America, even though three of the four record companies aren’t even American. The only label with any pretence of being based in the US is Warner Music, and even that’s run by a Canadian, Edgar Bronfman Junior.
The other three members of the organised music cartel are EMI (Britain), Vivendi Universal (France) and Sony BMG (Japan and Germany).
In other parts of the world, the Big 4 are fronted by the likes of their BPI (British Phonographic Industry), IFPI (International Federation of Phonographic Industry), CRIA (Canadian Recording Industry Association of America), the eerily appropriate ARIA (Australian Recording Industry Association), and so on, who are similarly suing other mothers in other countries.
Why? Warner Music, EMI, Vivendi Universal and Sony BMG believe to survive, they must gain complete control of online music distribution, and all of its elements. And they`ll stop at nothing to achieve this â- up to and including terrorising (and I use the word advisedly) Rae-Jay Schwartz, a woman bound to a wheelchair by multiple sclerosis.
But there`s nothing personal it it.
It`s just bidnes.
Sue `em all
Rae-Jay is being sued by Elektra. So why are the names Warner Music, EMI, Vivendi Universal and Sony BMG always front and centre in this and all the other malevolent sue `em all filesharing cases in which victims such as Rae-Jay and another New York mother, 57-year-old Marie Lindor, always described in the same way: as massive illegal online distributors of copyrighted music?
Marie Lindor, too, is accused by the Big 4 of being a hardened copyright crook. But it`s hard to imagine a more ridiculous assertion.
Both women are, to all intents and purposes, computer ignoramuses and Marie in particular barely knows enough to turn a PC on, let alone run a massive illegal online copyright distribution operation.
But that`s not unusual. A hallmark of RIAA cases is: they first sue the parent and once they have their foot firmly in the door, they turn on their real targets â- the youngsters of the household.
Another New York mother, Pattie Santangelo, can tell you all about that, as can two of her five children, Michelle, barely out of her teens, and Bobby, 16.
When the RIAA first showed up, Michelle was 16, and Bobby was 12, but their mother, Patti, was one of the first people to stand up to the RIAA and their frequently changing teams of legal hitmen.
But now Michelle and her brother have turned the tables on the big four saying the RIAA, Sharman Networks, owner of the discredited Kazaa P2P file sharing application which appears as the bad guy in so many of the file sharing cases, and Time Warner`s AOL together owe them almost $8 million, plus legal fees and expenses.
It`s believed to be the first of its kind in these anti-P2P cases, but it won`t be the last.
`Creative and financial vitality`
But back to why the Big 4 are also implicated in the Rae-Jay Schwartz case. After all, isn`t Elektra the company her?
Yes. But it`s is owned by the Warner Music Group, one of the members of the Big 4 organised music cartel who, singly and collectivelty, control the corporate music industry, dictating what happens, when it happens, and how it happens.
OK. But what about Mitch Bainwol, Cary Sherman, Jonathan Lamy, Cara Duckworth, et al, ? They`re only RIAA staffers and they and the current hired legal contractor, Holmes Roberts & Owen whose Richard Gabriel is leading many of the attacks, are only doing what they`re paid to do. Right?
In its mission statement, the RIAA which is, let`s not forget, ultimately controlled by the Big 4, says it exists to, foster a business and legal climate that supports and promotes our members` creative and financial vitality.
There`s nothing about quite literally threatening the health of people such as Rae-Jay in pursuit of this goal.
And the men and women who keep the RIAA wheels turning are intelligent, highly skilled people who could in a heart-beat secure, high-level positions within the government or law communities.
It`s reasonable to assume they work where they work because they like what they do, and are committed to doing it; that salaries are so high they can brush all other considerations aside; or, that working for the RIAA represents a significant stepping stone to career advancement.
Forget about what`s right and decent.
Rae-Jay is wheelchair-bound by a terrible medical condition which attacks the central nervous system .
As well as being plagued by the RIAA, she`s a victim of multiple sclerosis, the debilitating disease which slowly drains the strength and will from sufferers.
Stress and multiple sclerosis seem at times to go hand in hand, says Beginners Guide to MS.
There is a strong correlation between severe stress and exacerbation of MS symptoms, says the University of Maryland medical Centre.
And yet, Warner Music, EMI, Vivendi Universal, Sony BMG and their RIAA, won`t leave her alone.
Their constant attacks on their own customers, not to mention children as young as Kylee Andersen who`s 10 now but who caught the RIAA`s attention when she was only seven.
Her mother, Tanya, has been fighting the RIAA ever since it first attacked her, accusing her of the same non-existent `crimes` it`s trying to lay on Rae-Jay.
Tanya, though, has applied for class action status in a suit naming the RIAA, Atlantic Recording Corporation, Priority Records, Capitol Records, UMG Recordings, and BMG Music; MediaSentry owner Safenet; and, the so-called Settlement Support Center.
The RIAA`s reputation is in tatters and even the mainstream media are starting to realise something is badly wromg.
American Public Media Marketplace has just wrapped a three-part series on the RIAA`s actions and in it, `I don`t think we`ve suddenly had a massive morality shift, where tens of millions of Americans who wouldn`t shoplift a CD in a store have suddenly lost their moral compass and are rampaging out there, eager to break the law, says EFF (Electronic Frontier Foundation) lawyer Fred von Lohmann.
And he`s dead on. To suggest hundreds of millions get out of bed every morning, determined to rob the corporate record labels, is patently ridiculous.
That`s when her life went down the rabbit hole
The first lawyer Andersen consulted offered this advice, says the broadcast:
Just let `em take a judgment against you and file bankruptcy.
Andersen says she responded: Why should I have to do that? That`s not fair and the lawyer stated, I didn`t say it was fair. It`s how you have to deal with those people.
So it was back on the phone to the `settlement center,`honour by the where she says a support rep listened sympathetically.
ANDERSEN: He ended up telling me, `Well, you can write a letter to my bosses, but no guarantee. Once they start a lawsuit, they just don`t back off.`
LORY LYBECK: And that`s when her life went down the rabbit hole.
Lo and behold, somebody shows up at her door with a federal lawsuit, saying `We`re going to ruin you. We`re going to sue you for over a million dollars.`
He bases that on the industry`s past demands for up to $750 per song and, He says Andersen was accused of trading 1,046 music files, says APM, going on:
Lybeck responded with a counterclaim in the fall of 2005, and Andersen says after that things really got ugly. It was right around the time she moved to a new home, and her apartment manager got a call:
ANDERSEN: He told them he couldn`t release my personal information. They told him that he would either give it to them or he was going to get in a lot of trouble. It terrified me.
Come to find out, they were trying to serve Kylee.
Her daughter, who was just 7 years old when the file-sharing supposedly happened. Andersen`s lawyer says he was able to confirm that call came from the recording industry`s law firm. What remains a mystery is something else that he says happened around the same time:
LYBECK: Calls were made to Kylee`s elementary school, under the pretext of somebody calling saying they were Kylee`s grandmother, and was she there that day? I haven`t tracked that call directly back to the law firm, but it was most disturbing, especially since Tanya checked, and grandma made no such calls.
Tanya and Kylee Andersen have come to symbolise the kind of anguish an ordinary family can suffer through the repugnant actions of the RIAA, and its masters, EMI (Britain), Vivendi Universal (France), Sony BMG (Japan and Germany) and Warner Music (US).
The Edgar Bronfman jnr scandal
Canada`s Edgar Bronfman, jr, chairman and CEO of the Warner Music Group, had a startling admission to make.
His own seven children, `stole music`.
Using online music services to share songs without paying for them may be illegal, but casual users don`t usually find themselves under the steely gaze of an angry recording industry executive, says Reuters.
Unless Dad is the head of Warner Music Group.
Actually, thousands of people around the world do find themselves under the `steely` eyes of `angry recording industry executives,` one such person being Rae-Jay.
Meanwhile, We asked Edgar Bronfman, the head of the world`s fourth largest music company, at the Reuters Summit whether any of his seven kids stole music, say Reuters.
I`m fairly certain that they have, and I`m fairly certain that they`ve suffered the consequences, Bronfman stated, going on:
I explained to them what I believe is right, that the principle is that stealing music is stealing music. Frankly, right is right and wrong is wrong, particularly when a parent is talking to a child. A bright line around moral responsibility is very important. I can assure you they no longer do that.
What did he do to them? – asked Reuters.
I think I`ll keep that within the family.
Are families other than the Bronfmans allowed to set their children straight, deciding what kind of punishment to mete out and whether or not to make it public?
They`re not. They`re harried from pillar to post and publicly humiliated.
Extortion and conspiracy
But the RIAA`s claims are crumbling steadily.
And in a new milestone development, in the case in which Suzy Del Cid, represented by represented by Michael Wasylik of Dade City, Florida, accuses Warner Music, EMI, Vivendi Universal and Sony BMG`s RIAA of extortion and computer fraud, amending her claims last month, the judge in Del Cid upheld five of her counterclaims.
They were, tresspass, violations of the Computer Fraud and Abuse Act, violations of Flordia`s Deceptive and Unfair Trade Practices Act, Declaritory Judgement of Non-infringement, and Conspiracy to commit extortion.
The judge threw out counterclaim 3, copyright misuse, saying that it might constitute a defense, but not as a cause of action, says Beckerman.
Judge Richard A. Lazarra wrote:
Plaintiffs have conspired among themselves and with others to commit the following illegal acts to further the ends of their conspiracy: (a) use of private investigators to conduct investigations in Florida against Florida residents, without license, in violation of Fla. Stat. Chapter 493; (b) unauthorized access to a protected computer system, in interstate commerce, for the purpose of obtaining information in violation of 18 U.S.C. § 1030; and (c) extortion and attempted extortion in violation of the Hobbs Act, 18 U.S.C. 1951.
The Bottom Line
So what`s the bottom line which, is ultimately, what it`s all about â- not decency, not fair use, not doing the right thing, not putting your best forward to look after your customers who, when all is said and done, make it all possible?
None of that.
The labels have one goal in mind: to gain control of the online music industry in the same way they control it offline. And they`ll stoop to any level to reach it.
Warner Music, EMI, Vivendi Universal and Sony BMG continue to rake it in by the hundreds of millions every day, their cries of outrage notwithstanding.
They say files shared equal sales lost: that if you share a file with someone, that person would otherwise automatically have gone out and bought the file.
It doesn`t gel and you don`t have to be a doctor of economics to see that.
The Big 4 say people who share are criminals and thieves who not only rob them of their rightful earnings, but who in the process severely damage the economy of the countries where they live and visit terrible hardships on countless music industry support workers who lose their jobs as a direct result.
But it`s all flim-flam. Spin. Disinformation. Misinformation. Baloney.
Felix Oberholtzer from the Harvard University Business School, who, with colleague Koleman Strumpf from the University of Kansas School of Business are among the many academics and researchers who shot the corporate music industry claim that files shared equal sales lost down in flames and their paper, The Effect of File Sharing on Record Sales: An Empirical Analysis, remains a milestone.
The `piracy of recorded music costs the U.S. sound recording industries billions of dollars in lost revenue and profits, as the spurious industry-friendly The true cost of sound recording piracy to the US economy states categorically. But that, too, is fabrication.
Fair Use exceptions to U.S. copyright laws are responsible for more than $4.5 trillion in annual revenue for the United States, says a new economic study released by the Computer & Communications Industry Association (CCIA), quantifying for the first time critical contributions of fair use to the US economy.
Companies such as the members of the Big 4 organise music cartel benefit from limitations on copyright-holders exclusive rights, such as fair use, which generates substantial revenue, employs millions of workers, and, in 2006, represented one-sixth of total U.S. GDP, says the 45-page Fair Use in the U.S. Economy.
Much of the unprecedented economic growth of the past ten years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner, says CCIA President and CEO, Ed Black, going on, to stay on the edge of innovation and productivity, we must keep fair use as one of the cornerstones for creativity, innovation and, as [our] study indicates, an engine for growth for our country.
`It`s rough and we`re living from paycheck to paycheck `
that`s the bottom line for Rae-Jay Schwartz.
But she and her lawyer, Ray Beckerman, are praying the faint glow they currently see at the end of the tunnel will turn into a blaze of light not only for her, but for all victims of RIAA persecution.
The two hope they`ll have the satisfaction of seeing her case written into the legal archives as among the first to bring the RIAA persecutions to a shuddering halt.
Meanwhile, how are things with Rae-Jay?
She`s always been willing to talk but it`s evident discussing the RIAA lawsuit takes a lot out of her, so for the moment it`s enough to repeat something she told p2pnet at the end of last year.
I can barely walk, she said. It`s rough and we`re living from paycheck to paycheck.
It`s clear that the RIAA`s standard boilerplate complaint doesn`t comply with federal pleading standards, and must be dismissed.
If the RIAA doesn`t withdraw their case, I believe they`ll lose, and in so doing increase their liability for attorneys fees.
I`m hopeful for Ms Schwartz and her family that the RIAA will drop this case and leave this poor woman alone.
Meanwhile, not one of the estimated 30,000 or so American families who have been victimised has yet appeared in court been found guilty of anything, let alone the non-existent crime of file sharing.
Pretence alone is sufficient for the Big 4â²S purposes.
With the consistent help of the mainstream media, they`ve been able to create the illusion that thousands of people have been successfully sued for illegally distributing music online when in reality, not one person has yet appeared in a civil court in front of a judge or jury, let alone been found guilty of anything.
(Thanks for the important correction, Sanji)
Jon Newton – p2pnet
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