p2pnet.net News:- I had an interesting telephone talk, yesterday, with Peter Brown, executive director of the Free Software Foundation.

We were discussing DefectiveByDesign’s at that point still-to-come RIAA Lawsuit conference call with Ray Beckerman, who runs Recording Industry vs The People. He’s also the man representing a number of RIAA sue ‘em all victims.

Listen to the conference recording here, and then make a donation to support Ray’s clients in these important legal cases or consider donating to the Patti Santangelo Fight Goliath fund, suggests the conference page.

Meanwhile, Brown and I were talking about how DbD is all about DRM and the fact Warner Music, MI, Vivendi Universal and EMI, the members of the Big Four Organized Music gang, are trying, and failing, to terrorize music lovers into buying corporate downloads.

IMHO, it’s virtually the same thing, I said. On the one hand you have DRM, or Digital Restrictions Management, and on the other the Big Four’s bizarre sue ‘em all lawsuit marketing campaign and I wondered if, overall, it could be summarized as Consumer Control with DRM representing one end of the scale and the lawsuits, the other.

After all, the objective in both cases is to force people into doing what they’re told, with the implicit warning that they could quite literally end up in court if they don’t.

Below is a draft transcript of the call.

Gregory Heller DefectiveByDesign Campaign Manager:

So without further ado I turn it over to Peter Brown the Executive Director of the Free Software Foundation

Peter Brown:

Thanks, Gregory. And welcome, Everybody.

On June 23rd, the Defective by Design campaign organized a phone-in targeting the executives at the Recording Industry Association of America (the RIAA) and similar trade organizations in Europe and Canada. We did this to allow our supporters to express their frustration with Big Media’s attempt to force DRM into our technologies and onto our society. Through the action we became aware of the work of Ray Beckman and his excellent blog ‘Recording Industry vs the People’. Ray practices law in New York state and is the lead attorney there in the fight against the RIAA’s lawsuits .

From speaking to Ray about the campaign I came to realize that we are in fact fighting the same battle but just on two seperate fronts. That battle is the battle of consumer control. DRM is an attempt to win this battle with technological restrictions, and the other is an attempt to win the battle through intimidation and lawsuits, which will allow them to rewrite copyright law. It’s very important that we realize what’s going on in these lawsuits and that we realize that in fact there’s no real financial support going on. The RIAA has really been allowed to run amok here and we need to do something about it. So let me introduce Ray Beckman to you and let’s find out what’s going on with these lawsuits and how they’re connected to DRM. Ray, why don’t you spill the beans on what’s going on?

Ray Beckerman:

For almost three years, the RIAA has been conducting a reign of terror and they have actually tripped across what is possibly their most effective device which is bringing lawsuits against defenseless people.

You have a multi-billion dollar cartel sueing unemployed people, disabled people, housewives, single mothers, home healthcare aids, all kinds of people who have no resources whatsoever to withstand these litigations. And due to the adversary system of justice the RIAA will be successful in rewriting copyright law if the world at large and the technological community in particular don’t fight back.

Every time you learn of one of those rare instances in the 19000 litigations in which one person has fought back, there’s a lawyer out there who’s either working for free or getting a nominal fee for his work.

You will notice that you will never see a big law firm in that category. Big law firms are like any big corporation: they need to make a profit. That’s what their primary purpose is. And they would be interested in representing the RIAA, not the poor people that the RIAA is sueing.

Now these cases raise very important legal issues relating to privacy and not just music, but technology. The way this campaign begins is with an investigation that is not an investigation at all. The sophisticated audience to which I am speaking will realize how bogus it actually is.

They have an investigator pretend to be a user of KAZAA or one of the other similar file-sharing networks. They find a shared file folder that has a goodly number of copyrighted songs in it. He has no idea whether those songs were obtained legally, whether though downloads, or through making copies from one’s own CD, or whether anything illegal was ever done with those files. And what he does, he takes a screen shot of those shared file folders (he of course does not see the folders, he merely sees the text in the metadata) and decides that this is a big shared file folder.

Then through some secret process whihch he will not share with us and which he will keep secret from the courts, he then associates it with a dynamic ip address. and then, after he has what he believes is the correct dynamic ip address, for the date and time at which he made that screen shot and brings a proceeding to get the name and address of the subscriber who paid for the internet access, which of course would tell us nothing. But then with that set of information he then sues the person. And it is a one-sided lawsuit. The host of John Doe’s, usually the people who are named as defendants in those cases, live in cities hundreds of thousands of miles away from where the lawsuit is pending, and only find out about it after the order directing the turn over of information.

They usually receive only a few days’ notice and are told that unless they can hire a lawyer in the city and that lawyer can make a motion to quash the subpoena, that therefore the information will be turned over. OF course at that point they don’t even know that there’s a lawsuit. They do not even know that they ahve been sued. They don’t have copies of the court papers, they don’t have copies of the application for the order. They have absolutely no way to resist.

A couple of people have been alert enough to alert the ELectronic Frontier Foundation and so we’ve managed to bring a few cases in which we’ve attacked this initial John Doe process. But the judges who are anything but digital natives have no understanding of it, have given us very short shrift, haven’t listened to anything that we’ve had to say. THere was a case in 2004 where an elderly judge was told by a lawyer in his brief from the RIAA that from the metadata and the hash these were illegally copied files, which is of course nonsense. And the judge actually referred to that in his decision as to why he was upholding the subpoena.

Once they get the name and address of the victim, they then seek to extort a settlement of $3750 or $4250. If the victim calls them up and tells them that they’ve never even done any file sharing, that they have no idea what it’s about, that they’re completely innocent, the RIAA doesn’t care and then it commences a federal lawsuit.

Now defending a federal lawsuit is an extremely costly process. If you get into the merits of the case to prove that you’re innocent, you’ve already lost. Under any scenario, you’re talking tens of thousands of dollars at least in legal expenses in order to defend such a case.

Now there are some very important cases going on. In my office we’ve tried to attack process early on. We’re the only firm that lately has made motions to vacate the John Doe cases. Once the name and address is know and they sue a person in their name, they still have this extremely vague complaint which tells you nothing because they say the defendant downloaded or distributed and or made available for distribution certain song files. But they have no evidence of any downloading, they have no evidence of any distributing. ANd at most they can say that someone who might be somehow be associated with the ip address might have made some files available. They don’t know that the defendant did.

All they know the defendant did was to write out a check to the internet access. Now, we’ve tried to point out in our investigations that the technical underpinning of the investigation is meaningless, that the metadata doesn’t tell you anything, that it can be scrubbed, that it can be changed, that any real pirate would not leave the metadata of the thing he had perloined. the ip address makes no sense because any real pirate would be using someone else’s address. THE metadata tells you nohting, the hashmarks do not establish anything. Even seeing the shared files folder doesn’t tell you which computer it resides on because all of these networks use one form or another of a hierarchy of computers, those with fast broadband connections and those with slow broadband connections, so you have, or whateveer terminology they use, so when you see the shared files and the metadata from one computer or from a group of computers to one node, but the judges have no clue, they actually won’t even let me talk about it. One of the free motions had no oral argument … the judges would not let me speak.

Now, there’s a case called Electro vs Barker which has become very important. THis is a nursing student who was sued in her name. We made a motion to dismiss the complaint which doesn’t specify any acts or dates or times of copyright infringement normally required and we made several arguments like that before this motion and the RIAA put in an argument which basically fudged it. With this case they basically decided to go for the gold and they made a bold argument claiming that merely making files of available on the internet is in and of itself a copyright infringement. It was a shocking argument because if it were accepted it would probably shut down the entire internet.

As a result of that bold argument, certain organizations came in putting in an AMICUS CURIAE brief to support Miss Barker’s motion to dismiss. In reaction to that the Motion Picture Association and the United States Government put in briefs supporting the RIAA trying to… the Motion Picture Association directly supported that extreme argument. The US government didn’t quite go that far but it tried to support the RIAA by attacking another argument made by the Electronic Frontier Foundation.

Meanwhile, Miss Barker is a nursing student. She has no money, she lives in the housing projects, and she has to have lawyers reviewing all these briefs, writing briefs for her etc. Now, this case is pending and the judge may call for oral argument or he may render a decision.

But if our motion to dismiss is granted and sustained on appeal it would mean the end of the RIAA juggernaut against innocent people not known to have committed a copyright infringement. We’ve received no support of any kind from anywhere and no resources to defend this case. In the case USG vs Lindor where the defendant Lindor is a home health aid who’s never used a computer.

She’s never used a computer. She’s never even turned on a computer. The only connection she has had to a computer is that she has on occasion dusted parts which she believes are a computer. Being sued as an online distributor in peer to peer file sharing. This is a case started by her so we were not able to (we stepped in in the middle ) so we’re not able to attack the complaint, but we’re seeking information on the cartel-like behavior of the RIAA and we’re in all kinds of discovery disputes. It’s trying to conceal information about how’s conducting it’s “investigation” to conceal the information on how the different companies work together to run this campaign to destroy competition in digital music. All these discovery disputes, there have been depositions and now they’re calling… they’ve already deposed her and her son, they now want to depose various other relatives. Snd meanwhile they’ve stonwalled every discovery request we’ve made.

Unless the world comes together and helps these defenseless people, the RIAA is going to win all these battles one way or another and rewrite the copyright law.

During our coversation, Brown and I wondered why there isn’t a central organization to help people who are being victimized with funds and expert legal help.

Well, why isn’t there?

On that, stay tuned.

Cheers!
Jon

---

p2pnet newsfeeds for your site.
rss feed: http://p2pnet.net/p2p.rss
Mobile – http://p2pnet.net/index-wml.php

This entry was posted on Thursday, July 20th, 2006 at 3:34 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.

HOME

Viewed 3300 times