‘Fairness’ and Matthew Oppenheim
p2pnet view RIAA | P2P:- “I intend to write something about how inaccurate the ‘response’ from MO is!”
‘MO’ is RIAA attack dog Matthew ‘The Dentist’ Oppenheim (right), who’s currently trying to weave a web of misinformation, disinformation and outright bullshit on copygrounds.com, a new University of Texas online course discussion forum for students.
“There’s an interesting online dialogue developing between Joel Tenebaum, one of the RIAA’s more famous Sue ‘Em All victims, Matt ‘The Dentist’ Oppenheim, one of the RIAA’s more famous BS-slingers, and Charles Nesson, the Harvard law professor who defended Joel”, p2pnet posted yesterday, continuing.
“Oppenheim, a lawyer who turns up in RIAA cases although he no longer works for the Vivendi Universal, EMI, Warner Music and Sony Music legal extortion unit, earned The Dentist nickname when he went after Jessie Jordan who was trying to establish a search engine, way back. He described himself to Jesse as ‘a dentist you don’t ever want to have to visit again’. He also once said the ‘Fourth Amendment does not apply to (the RIAA)’.”
It “seems that there is much to discuss regarding the intersection of copyright, the internet and peer to peer”, says Oppenheim on the Universityof Texas copygrounds page.
But, if you read it [Oppenheim's failed attempted dismissal of Tenebaum's Q&A], “you’ll see he willfully misinterprets what Joel means” says Robert in his Reader’s Write to the p2pnet post.
Robert goes on >>>
MO: First off, Joel makes the curious statement that he “just wants a fair day in court for the allegations against me.” This statement seems to forget the history of what has happened. Joel had a full-blown trial in front of a Boston jury and a federal district court judge. While on the stand, Joel testified, for the first time after several years of litigation, that he was responsible for the p2p use that he was accused of engaging in. Based on that admission, the District Court Judge held that Joel was an infringer. And, a jury found that his conduct was willful and worthy of a significant damage award. The suggestion underlying Joel’s comments that he “wants a fair day in court” is akin to a giraffe claiming that it wants to be tall. It makes no sense. Joel had his fair day in court and was found to be a willful infringer.
JT: I tried to settle — multiple times. I offered $500 from the outset and $5250 in court, but by then, this offer was apparently not enough for the music labels. And besides, the idea that someone could just call you up and ask you for thousands of dollars, showing no hard evidence, without your getting a fair day’s representation in court seemed absurd.
The RIAA sued me. I just want to have a fair day in court for the allegations against me. I’m not the one who can dismiss the lawsuit.
[...]What I’m fighting in court is that $675,000 — and even $67,500 — for 30 songs is unjust. Turns out that you can NOT use a civil law suit to “deter” other individuals: it’s an abuse of court. And so, “making an example” out of me to scare others is more than just unfair.
Robert: What Joel considers unfair is not that he was under represented or that he didn’t commit an act of infringement, he said the “damages” requested are the unfair part, and the lack of any hard evidence …
** DEEP POCKETS **
MO: Second, Joel makes the unfounded claim that the RIAA gets “to buy more justice by having the deep pockets necessary to pay dozens of lawyers to fabricate an interpretation out of a statute we believe wasn’t intended.” This kind of accusation not only lacks any merit, but avoids any worthwhile discussion of the issues. Joel Tenenbaum can hardly claim that he lacked for legal counsel; he had a preeminent Harvard Law School professor, a team of Harvard Law School students, a Boston litigation law firm and his mother (an attorney), all representing him. There also is no merit to the suggestion that the copyright law was not intended for the purpose of addressing p2p copyright infringement. Dozens of federal courts have found that the unauthorized uploading or downloading of copyrighted music on a P2P network is copyright infringement. Moreover, the Congressional Record is replete of support for this conclusion. It may sound good for Tenenbaum to claim that the copyright law was not intended to deal with the likes of his infringement, but it simply is not true.
– Nowhere did Joel say he was not well represented, so that’s again a strawman fallacy. “lacks merit, but avoids worthwhile discussion of the issues” is also false, because nowhere is [there] an argument to counter the statement of deep pockets provided. It’s entirely sidestepped. Secondly, it HAS been proven that the lawyers have been abusing the law and several judges have commented as such, see riaavsthepeople.com for the details or read the court hearings on Jammie Thomas or Tanya Andersen.
– Name the “dozens” of federal court cases where judges have found the unauthorized uploading/downloading as infringement? Settlements do not count and bringing a case before a judge does not count either! Name the cases and link to them. And no where does Joel say that copyright law is not related to his infringement. Joel states that the claims of devastation are full of shit, which is true, and anyone who wishes to read the balance sheets of the labels could attest to that.
– The entire rebuttal is one large strawman argument, comprised of smaller strawman arguments.
MO: Third, Joel suggests that he used P2P networks to sample music to decide whether to buy it or not. I have heard this defense for years. Apart from the fact that it lacks any legal merit, it isn’t accurate factually. If you were only sampling to buy, you would download a file, listen to it, decide whether to buy an authorized copy, and then delete the infringing copy. When individuals, like Joel, maintain large libraries of infringing copies in a share directory, they cannot fairly claim that they are just sampling.
– Just as the labels have [no] hard proof of infringement, they can’t prove that people who sample do not buy either! There’s a reason so many restaurants and grocery stores provide free samples now and again: because IT INCREASES SALES. Exactly what “legal merit” is this lacking? There is nothing legal about it. If you are referring to “hard proof” they refer to the studies that ARE independent and far more accurate than “music industry loses 17 billion each month” type studies that were used to push through laws, along with payments in forms of campaign contributions. Contrary to the belief that this isn’t true, the funding is taxable and is also in balance sheets available to the public, since it is the government’s public service people who are receiving this money.
– Deleting the infringing copy? Why is that even relevant? You purchase one, you’ll likely overwrite the bad quality one, unless the purchased one is of worse quality, as who needs two copies on their HDD of the same song? Or is MO referring to a copy on the CD and HDD and iPod? At which point it is NOT illegal to have a copy on each device, at the same time.
– Large libraries of songs in a single directory not sampling? Of course not, it’s the same as combining their photos from multiple albums into one location on their HDD; organization! Why does it matter whether the songs are on purchased CDs AND on HDDs? Who uses CD players when their computer has a much larger library two which you can enjoy hours of music without changing discs, not to mention a great mix-up.
– How is any of the last two points illegal? It’s simply organization and NOT illegal, especially when the samples lead to purchased copies, which are stored on a HDD instead of several discs. It’s paid for, why does storage means matter? It’s not a legal matter at all.
– Your main issue is, and only is, the fact that the location of the files is in a SHARED directory, regardless of how many copies of the same song exist or what media is used for storage or how it is stored. Joel’s only ‘legal’ fault is, which has NOT been vastly accepted by the legal system but only a few judges (few =< 5 — hardly the entire legal system), knowingly using a file sharing protocol which permits others to copy material from his shared folder to their folder. (It would really help if you understood that every website that is ‘copyrighted’ is actually infringed because copies are placed on one’s computer by simply viewing the site — it’s unavoidable, otherwise you’d never see the site material!).
** CONCLUSION **
The only real problem is: Joel used a file sharing protocol and shared music he was not authorized to do so, which he admitted to, but the damages suffered are not even close to that which the industry claims to be true.
Oppenheim, you are not a very good with logic and reasoning, and the only way you could possibly be of any assistance to prosecutors is to hope to have a judge who doesn’t bother to read or pay attention to the arguments presented.
I’m not a judge or a legal expert, but I’d throw your butt out of the court room …
Stay tuned.
September, 2010
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
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