p2p news / p2pnet:- Michigan lawyer John Hermann represents several victims of the EMI, Sony BMG, Warner and Universal sue ‘em all marketing campaign.
EMI, et al, comprise the Big Four record label cartel.
It’s taken a long time but finally, thanks to the courage of people such as the three mothers who are defying them, refusing to be cowed by the cartel’s endless legions of lawyers and bottomless financial resources, the mainstream print and electronic media are being forced to take notice, albeit reluctantly given that so many of them are owned, or directly or indirectly influenced and controlled by, the entertainment industry.
John Hermann is one of the good guys, as are other lawyers, such as Ray Beckerman, Ty Rogers and Dan Singer at New York’s Beldock Levine & Hoffman, and Lory Lybeck from Lybeck Murphy in Oregon, who are similarly acting for people singled out by the cartel’s RIAA (Recording Industry Association of America) for special attention.
Here’s Hermann’s take on what’s happened and what’s happening >>>>>>>>>>>>>>>>>>>>>>>>
Sue ‘em all
By John Hermann
The recording industry and its trade association, the RIAA (Recording Industry Association of America) are in their second year of targeting users of peer-topeer software programs under the guise of stamping out copyright infringement. The lawsuits are pursued in essentially two phases. First, The RIAA employs a team so called investigators who locate alleged infringers using the same software programs that they describe as being specifically designed for online media distribution.
As with all peer-to-peer programs, the peer-to-peer programs simply allows for the exchange of information, not all of which is copyrighted. Possible uses include such benign examples a photos among family members, research material, personal interest items.
Certain sound recordings and/or written items which are beyond the limitations of the copyright protection may also be legitimately exchanged such as works of Beethoven , Dickens, etc.
Notwithstanding the number of legitimate applications, the industry has attempted to target all peer-to-peer software systems as being primarily used to facilitate the exchange of copyrighted material.
Unfortunately, the methods locating potential infringers fail to adequately distinguish those who are, in fact, infringers from other individuals who have no association with potential infringing activity.
Typically, the RIAA minions use the very programs they claim are vehicles for infringement to locate other individuals either hosting or seeking files which appear to be copyrighted materials. By conducting a search or viewing another peer member`s shared list, the investigators are able to locate files which they believe constitute protected works.
For instance, if the investigative outfit were to view another peer member`s shared file bearing the name Madonna Like A Virgin, they typically assumethe file is a audio, mp3 or WVA version of Madonna`s copyrighted sound recording . Rather than examining the contents of the file to verify that it is, in fact, a Madonna tune, the investigator simply assume it is because it’s stored on a peer system and because it bears a similar identification to a popular artist.
Many of the early peer systems (ie, Kazaa, LimeWire, etc) have defaults that make it easy to identify unsophisticated infringers who may not even know what they’re doing is potentially infringing.
These defaults enable other individuals, including the RIAA, to view and/or exchange all of the materials within the host’s shared file. Because allowing others access to copyrighted material is also a violation of the copyright act, downloading isn’t required for someone to be liable under the act. On top of that, because the potential damages for infringement are statutorily defined, based on the number of materials exchanged, a person could have only downloaded a couple of songs and yet still be liable for thousands of dollars in damages for each and every song that was in their folder because they’re allegedly being offered for exchange.
The irony of targeting early peer system users is that the serious offenders are smart enough to change the default settings so as to mask their file hosting, or use more recent peer systems that shield the host files from view.
The naÃ¯ve and uninformed, meanwhile, are easy prey for the RIAA.
In addition, the RIAA`s strategy appears flawed in that they once they’ve identify a person sharing and/or downloading a suspect file, they’re only able to determine the IP address and username associated with the peer system registry. This alone isn’t enough for them to be able to distinguish if the account holder, or someone else, was using his/her account and was responsible for the activity.
Although these facts are easily discernable by the RIAA, they simply don`t care about the underling truth of the matter. Once they identify the activity as being linked to an internet account, they typically argue (without any legal authority) that the account holder is responsible for all activity on the account.
Because many of the identified infringers are children or other household members using the parents’ or account owner’s internet service, the RIAA’s campaign will no doubt ensnare countless numbers of innocent victims whose only offense is that the account was in their name.
Although the music industry is aware of the potential for falsely identifying potential infringement, its motivations are pure and simple it wants to make money .
Once its RIAA investigators have identified an IP address associated with the alleged infringing activity, the RIAA files a lawsuit linking several cases together. The infringer is only identified by an IP address, so the suits are named literally against John Doe.
After a lawsuit is filed, the RIAA petitions the court to issue a subpoena to force the ISP to turn over the name and information of the account holder for the particular IP address. Although the internet service providers are required to notify their customers that their identities will be released unless an objection is filed, 99% of the time, this doesn’t happen. Soon thereafter, the RIAA and/or its lawyers send out letters to the identified individuals saying they’ve been identified as having violated provisions of the copyright act, telling them to contact a telephone number to ‘settle’ the dispute.
The phone number is for the Settlement Support Group (SSG) located in Seattle WA, a boiler room phone bank operation. Without any investigation or consideration for the circumstances, the representatives urge callers to pay $4,500.00, or else.
No consideration is given for legitimately documented explanations. Instead, the settlement officers are trained to refute any explanation.
In several instances, representatives have threatened criminal sanctions for what’s a civil action, and hundreds of thousands of dollars in fines. When pressed, the representatives have even gone so far as to say whatever the excuse is doesn`t matter, someone is going to have to pay.
The RIAA is reluctant to identify its precise relationship to the SSG, or to say who the individual employees are. So far, approximately 25,000 lawsuits have been filed at $4,500.00 a settlement, if just 10 % of the people settle the financial sums are enormous.
Scorched Earth Philosophy
Regardless of the legality of file sharing, the industry has adopted a Scorched Earth legal strategy of suing its own customer base.
Although the suits have tremendous scare effect, the long term implications may be far more detrimental to their own interests. To avoid treading through a quagmire of potential legal violations, technofiles may be inclined to simply tune out, turn off, and turn in.
The industry also faces a tremendous backlash risk where individuals who otherwise wouldn’t have engaged in downloading decide to do so, rationalizing their behavior with a Robin Hood, justification.
Either way, the industry looses.
Information is Property
The risk of a consumer backlash with the RIAA is reflective of a larger battle being waged by other media advocates.
Hardware devices that have been carlings with consumers (iPods, Tivo, digital cameras, etc) are becoming increasingly restricted in their use. Consumers are finding out – to their dismay – that they don`t own the information on the devices. Digital watermarks on photographs taken by professional photographers prevent someone who’s already paid for the photographer’s services from having the picture duplicated at a copying service.
Tivo`s former rival was shut down after threats of protected litigation regarding the device’s ability to screen out commercials. Under pressure from several of the major TV and film studios, Tivo has pioneered a technology that allows the permanent deletion of programming materials after a certain time period. In otherwords, you only have 14 days to watch the latest Sopranos episode that you recorded, even though you’re paying for HBO and Tivo service.
To legally allow the service provider to utilize this program, Tivo has modified its customer agreements, often without the customer`s knowledge. Podcasting is facing similar challenges from advertisers who are arguing that the content of the broadcast must also include the advertising.
In the end, consumers’ best interest don’t always prevail.
Laws Favor Corporate Interests
Why are the interest of the consumer continually trumped by industry advocates?
Many of the laws protecting information content and copyrighted material were enacted at the behest of the industry itself. The music and movie industry have spent tens of millions of dollars on lobbyists and advocates to protect their financial interest and the end result is, They get what they paid for.
Laws written to protect the industry typically have draconian penalties. The damages are set forth by statute and impose flat fines of thousands, tens of thousands, and hundreds of thousands of dollars, regardless of the actual harm suffered.
In addition, since these damages involve electronic theft, it’s unlikely they would be discharged in a bankruptcy proceeding. As a result, the courts are bound by these statutory damages, which often result in overkill (ie, a teenager being fined for tens of thousands of dollars for downloading the latest Brittany Spears single).
With limited exception, there are no similar advocate groups for consumers. In fact, the only notable exceptions under the copyright act (ie, fair use, parody, etc) have all been established by judicial decisions rather than by congressional law.
Throughout history, institutions of power have a natural tendency to preserve the Status Quo.
For the film and music industry, the status quo (ie, distribution of their products movies, DVDs, CDs, etc, at theaters or retail outfits) represent a conventional business model that’s easily marketable.
Peer-to-Peer and other media distributions systems are a real and present threat to this existing business model.
Although industry advocates publicly decry the use of such technology, privately they know they can`t suff the genie back into the bottle.
Some recent articles have discussed how the RIAA has even gone so far as use companies such as Big Champagne to monitor downloading activity across p2p networks so as to track the highest trafficked songs.
Other industries are following suit.
Rather than resisting peer-to-peer technology, the adult film industry has taken the lead in encouraging its use. Although films are widely available over peer-to-peer systems, downloads contain links to the websites which offer other full price selections for sale. Simply put, the lost activity due to sampling and/or free exchange is treated as marketing expenditure no different than advertising.
Until these technologies are incorporated into the music and film industry`s business model, they’lll be fighting a loosing battle.
John Hermann – attorney at law, Berkley, Michigan
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First they ignore you, then they laugh at you, then they fight you, then you win
- Mohandas Gandhi