RIAA: a defense lawyer’s view
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-to–peer 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 naïve 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.
Extortion Campaign
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.
Solutions
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
==============
Something you think we should know? tips[at]p2pnet.net
First they ignore you, then they laugh at you, then they fight you, then you win
- Mohandas Gandhi
October 5th, 2005 at 5:56 pm
Here’s a guy who should be interviewed by the networks. it’ll never happen though.
October 5th, 2005 at 7:54 pm
Shouldn’t they (the ?IAA’s) have to prove an they dl’d a complete and working copy of the copyrighted file in question, from a single user, in order to claim infringment?
Should they not also have to prove that you do not have a legitimate reason for having that file (ie fair use, copied from a personal cd)?
Seems like a case of guilty until proven otherwise.
October 5th, 2005 at 8:30 pm
The RIAA and MPAA want to use Peer to Peer as a distribution tool so they can save money on bandwidth costs as it is an exreamly effient way to transfer large files but they constanly give p2p a bad name .
So if youngsters use a pay to peer service thier parents are going to be wary of anything that uses any type of peer to peer becuse of the cartels scare campain .
October 5th, 2005 at 8:42 pm
I wonder what would happen if people started filling their shared folders with fake files of the top ten songs every month. The industry uses fake files against file sharers and it works for them after all. They use automated search engines to find the names of shared files and log the IP, right? I’m guessing that from past newsworthy happenings, there is generally very little follow up or human interaction in this process. Not surprising since most ISP’s don’t give their users static IP addresses. Since this means they sue blindly all the time pretty much, I say why not use their own tools against them? Wouldn’t take long to expose the recording industry for the sham artists they truly are. Enough people do it and they would have to stop doing searches as an automated process. They would have to either have people actually follow up on every single infringement logged, which takes man power and thus money, or just simply stop doing it altogether and find another way of getting at their customers. Yeah, I know fake files hurt the network too, but surely there must be some way to entrap the industry in order to get the courts fed up with them wasting their time, all without actually hurting real file sharing. Maybe some smart cookie out there can figure out how to come up with a new way to share files that totally obfuscates their true identity in such a way that it completely bewilders the industry. Ah well, I’ve been up over 24 hours, so I’m probably not thinking clearly, hehe.
October 5th, 2005 at 9:18 pm
“Because allowing others access to copyrighted material is also a violation of the copyright act”
In a case where I was part where we sued because our songs were stolen, the judge claimed that the theft and down the line authorization by the robber was not infringement because we did not prove direct infringement. In other words, authorization alone was not infringement.
Clearly the judge’s decision, recently uphelpd by a federal appeals court is at odd with the comment …. “Because allowing others access to copyrighted material is also a violation of the copyright act”
Could someone with legal knowhow explain this.
I hope Mr. Hermann is right.
Rafael Venegas
http://www.gvenegas.com
October 6th, 2005 at 12:49 am
Is this written by the same attorney that represented Eugene Karpinsky in U.S. District Court and Bankruptcy Court? Wasn’t there a $202,000 judgment entered against Mr. Karpinsky?
October 6th, 2005 at 3:21 am
This article contains one of the most common and most dangerous misconceptions about peer-to-peer distribution: that if something is “under copyright” that it is appropriate to assume that it is not authorized to share.
The fact is that there is a growing number of authors who eithor explicitly (through Creative Commons types licenses) or implicitly (through where they publish the works) are authorizing activities such as non-commercial verbatim redistribution (p2p sharing, etc).
We need to separate out the concepts of being under copyright, being authorized by a copyright holder, and something being an infringing activity as these are 3 very separate concepts. Something can be under copyright and authorized to have specific things done. An activity might not be authorized by the copyright holder, but is not infringing as copyright does not grant absolute rights to eithor the copyright holder or the general public.
Prior to digital copyright most activities were non-infringing activities as copyright did not regulate them. The few things which copyright regulated (copying, distribution, communication via telecommunications) were not things that the general public wanted to do (share/rent/loan/resell physical media, access using any tools to assist and under any conditions, use media as furnature, whatever).
October 6th, 2005 at 3:28 am
This is the reason why CRIA lost their attempt to get discovery. It was not that unauthorized sharing of music is legal in Canada (Most people who looked into the law and court cases believe it is not), but that the recording industry didn’t provide adequate evidence of aleged infringing activities.
In the USA there was no need to provide evidence to get the disclosure of names, and thus be able to scare people into settling out of court. In Canada we have privacy protection laws (PIPEDA) which meant that the ISPs could not disclose the customer names without a court order.
Note: There is nothing in fair use (in the USA) or fair dealings (Canada) that authorizes a private citizen from communicating music to the public without authorization from the copyright holder.
I have a hard time understanding those who want to take things too far onto the other extreme from the recording industry. The industry wants to shut down all P2P activity (authorized or not, given it is the authorized and non-infringing P2P that threatens their business model the most), while other commentators want to legalize all P2P activity (authorized or not, erradicating any exclusive rights from the copyright holder). I consider both of these extremes to be wrong, even if I believe that legalizing all sharing is less harmful to the legitimate interests of the full spectrum of musicians.
October 6th, 2005 at 3:40 am
Hi shill
October 6th, 2005 at 9:57 am
well, can’t they sue you then because of trademark issues?
Olaf
October 6th, 2005 at 1:19 pm
I would think not. Otherwise, leaving a CD in an unguarded place is grounds for a lawsuit.
October 6th, 2005 at 1:21 pm
If we could rate posts here, I’d rate the parent up.
October 6th, 2005 at 2:46 pm
You can name a file whatever you want. That is covered under fair use. Ie. I want to name this text document Madonna.mp3 and put inside a note saying please sue me I’m going to counter sue and win. You have the full support of the law. It is content that you created. Sure its entrapment, but since its a civil case and not criminal that doesnt apply.
Hell look at the Entertainment industries own subsidiaries duping and tracking on those same networks. No legal repercussions.
They sue you for holding 900 copyrighted files, tell em sure thing you are going to fight it in court. Get in front of a judge and show the judge that they are text documents and what they say and watch them get laughed out of court. Then sue them for harrassment, as well as for not following evidenciary proceedings to make sure that the files you have were actually real mp3 strings…
Heck come on a 1kb Modonna song. If they fall for that you are going to be a very rich person.
October 6th, 2005 at 6:52 pm
“Otherwise, leaving a CD in an unguarded place is grounds for a lawsuit.”
One would think that the intention was would have something to do. For example if you know that distributing ilegal copies of cds (labeled as a copyright protected work) and you put the fake cds for sale through an Internet ad, the making them available through the ad is to me enough proof that the infringement was made, even though there is no proof that a single cd was actually copied or sold.
Quite different from kids sharing and copying digital files whose copyright status is unknown.
So I will answer my own question:
Allowing Internet access to song digital files should be infringement if the work is known to be a copyrigh protected work and the person allowing access or copying the files should know (for example: publicity company, music publisher, a record company). Certainly kids and normal people have no reason to know copyright law, the copyright status of a song or the how-to knowledge to investigate copyright status.
It should be noted that my explanations are not law based (the copyright law and its jurisprudence is all screwed up) and are made with song files in mind. For other types of files, for example, pdf file downloading, the situation is far more complex. Why, just this past month I downloaded over 25 pdf files off the Internet and most of them prohibit their copying, all of which makes me a big infringer and criminal, as induced by the owners of the copyrights who could, I guess, sue me for copying their files they induced me to copy, if they find out I did what seemed to be a perfectly normal thing.
Of course I do not have to worry, since the people that place pdf files on the net are normal, not criminal type people, so they will not be spying on me to see what I download, as the RIAA seems to be doing.
Rafael Venegas
http://www.gvenegas.com
October 6th, 2005 at 7:55 pm
You seem to forget that P2P works with file hashes…
So, if I have a copy of Madonna – Like A Virgin.MP3 …
… which I know to be a real music file…
… and I search for files with the same hash…
… and you happen to show up on the list of search results as a peer having the same hash…
…that should count as some kind of evidence…
unless of course you claim to have spoofed the hash
October 6th, 2005 at 11:15 pm
how about incomplete files than?
October 9th, 2005 at 5:14 am
I seem to recall that one of the issues that Judge Patel, in the remnants of the Napster mess (which, ironically has the cartel suing one of it’s own as it bought the ashes of Napster) was that “merely affording access did not infringement make.” Someone had to actually download the item in question. Otherwise (as stated elsewhere in this thread) leaving any kind of media unsecured could be considered an act of infringement. Libraries now become the crack houses of infringement because the library can not control what a patron does with a book once it’s checked out. They could be down at Kinko’s self-service killing trees a forest at a time. I couldn’t let someone use my computer which I’ve ripped CDs to, because they might copy them. Web browsers could not cache downloads for ‘faster’ rendering of already viewed item. Music could never be performed in a public venue because someone might be there with a tape recorder.
It’s one thing to have a can of gasoline in the garage for the lawnmover and a pack of matches in your pockets. It’s quite another to dump the gasoline all over everything in the garage, strike a match and toss it into the garage. Holding that the ‘potential’ for anything or ‘the willingness to engage in’ anything rises to the level of criminal conduct is just crap. It’s tantamount to creating ‘thought crimes’. If infringement is to be punished, then actual infringement (creation of a distinct 2nd copy) must have been proven to occur and not just because the accused had a pack of matches and a credit card receipt from the filling station in their pocket.
–TG
December 27th, 2005 at 5:52 pm
It’s getting to be a waste of time to use p2p, about half of the files out there that you waste your time downloading are fake. You do the search, find the file, download it (anywhere from an hour to 4 or more hours if you’re on dial-up), and then the file won’t play. Sorry to say, the whole USA doesn’t have high-speed internet available yet, unless you want to pay 500 bucks for the equipment and 100 bucks a month for the satellite service. And with satellite, you’re limited on how much you can download in a specified amount of time. Better off to borrow cds from friends and family and rip them than to download from p2p.
February 14th, 2006 at 4:32 pm
lose (looz) not loose (loos) <sigh>
Otherwise, excellent points are made.
April 23rd, 2006 at 5:50 am
Mr Karpinsky won his case against Direct TV…
End User Victory In Michigan (Followup 7-03)
DirecTV v. Eugene Karpinsky, Case No: 02-CV-73929, United States District Court in the Eastern District of Michigan. The Court issued an Order granting Summary Judgment as to all counts of DirecTV’s case against Eugene Karpinsky. The Court affirmed that contrary to DirecTV’s argument, mere possession of two smartcard recovery systems is insufficient to support a finding of liability under
47 U.S.C. Sec. 605(a), 18 U.S.C. Sec 2511(1)(a), or 18 U.S.C. Sec. 2512(1)(B)or demonstrate a claim of conversion.
DIRECTV, INCORPORATED Norman C. Ankers
plaintiff [COR LD NTC ret]
Bradley H. Darling
[COR LD NTC ret]
Honigman, Miller,
660 Woodward Avenue
Suite 2290
Detroit, MI 48226-3583
313-465-7000
vs.
EUGENE KARPINSKY John T. Hermann
defendant [COR LD NTC ret]
2684 W. Eleven Mile Road
Suite 100
Berkley, MI 48072
248-591-9291
U.S. District Court
for the Eastern District of Michigan (Detroit)
CIVIL DOCKET FOR CASE #: 02-CV-73929
DIRECTV Inc v. Karpinsky
Filed: 10/01/02
Assigned to: Judge George Caram Steeh
May 22nd, 2006 at 4:59 pm
This is a great article. I’ve been saying for years that there are solutions available. More and more musicians, for instance, are turning to Creative Commons licensing, making music free for personal use and sharing, while retaining copyright protection for commercial uses, such as sync and for-pay distribution.
Choices like that are giving consumers more options. See the quality content at http://www.knobtweakers.net, for instance. These options will continue to expand in the future, and present an even bigger threat to the RIAA — no new content to bring to market.
November 16th, 2007 at 11:06 am
my son is being sued for millions of dollars for 9 songs that he downloaded(or someone in his dormroom downloaded) he made no money from these songs….nor did any one else…this is exortion …pure and simple….pay a settlement or the amount will double….fight us in court…we will go for more…this is a kid who has nothing…and we are about ready to foreclose on our home…..they didnt strike it rich when they hit this kid! im sure thats what they are hoping for…….what a terrible lesson of exhortion for our kids.