Recording Industry vs The People: My Open Letter About the Kazaa Settlement

Thursday, July 27, 2006

My Open Letter About the Kazaa Settlement

My editorial opinion:

I have seen reports that Kazaa has entered into a settlement with the RIAA, under which it will seek to sell "licensed" RIAA music throught p2p technology.

The terms of the settlement have not been disclosed.

I am assuming that the settlement does not in any way affect the thousands of lawsuits against Kazaa customers. If that is so, it's wrong.

Many of the fine people who are being terrorized by the RIAA are in this mess because of Kazaa, and a settlement which gets Kazaa off the hook with the RIAA but doesn't do anything for the good folks who took Kazaa at its word, is not something I find comforting in the least.

I would have thought that Kazaa would have done something to end the reign of terror against its customers.

If the settlement doesn't provide for the cessation of RIAA litigation against Kazaa customers, and if Kazaa will be working with the RIAA to sell licensed distribution, I would call upon all members of the public to boycott the 'new Kazaa' to the same extent that they are boycotting the RIAA.

And I would call upon all defendants in RIAA cases, who are being sued because of Kazaa, to consider -- if they have the means to do so -- cross suing Kazaa.

-R.B.

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

5 comments:

StephenH said...: I think it is sad that RIAA sued KaZaa. What they should have done, and they could have done this from the beginning of P2P was simply license their music, which would have benefited both artists and consumers. Even from the very beginning of Napster, the P2P companies were in front of the labels and congress saying just license us the music, we will pay for it. The labels said no, and then their litigation lead us down the path we are on today, which is tragic. I personally think RIAA was responsible for this big mess. Some of the key mistakes are as follows:

* Refuse to license content to P2P companies and consumers

* Insist on DRM, when MP3 was the consumer accepted standard in terms of format.

* Alienated the public

* Originally suing Napster and Scour out of business allowed decentralized networks to take off, leaving very little control or room to develop a good payment system for artists

* Insulted consumers with a fear campaign by threating and suing them for more money than they have, while at the same time working to block P2P acccess in college dormitories

* Use extreme anti-innovation technology policies, and lobby congress to make unauthorized innovation illegal, especially creations by small scale developers that use music or video content in new ways.

* Made no attempt to work with the public on issues involving music, and work toward a productive, long term solution; July 28, 2006 at 4:26:00 AM EDT
eclectica said...: Since the settlement indicates a collusion between the RIAA and Kazaa, the actual terms of the settlement as well as the nature of the relationship between the two groups should be known to those who were Kazaa users and are defending themselves against the RIAA lawsuits. It is a piece of evidence which is relevant and is needed for their defense.; July 28, 2006 at 5:15:00 AM EDT
raybeckerman said...: Interesting point, eclectica.; July 28, 2006 at 8:01:00 AM EDT
CodeWarrior said...: Kazaa was an experiment in the same way that Napster was, and they both met the same fate...they were sued out of "real" egalitarian legitimacy, into becoming the prostitutes for the recording industry.

My view is simple. I do not advocate any cross complaint against Kazaa, but I do advocate the following.

I have been a digital consumer advocate for a couple of years now, an admin at boycott-riaa.com and have several sites of my own (just google "codewarriorz").

I advocate a TOTAL boycott of any and all "legal" music services, including but not limited to the "new" Kazaa, iPOD services, Wal-Mart downloads, and any other service SELLING downloads of tunes from RIAA associated artists.

I used to be a great customer, as far back as I can remember, buying vinyl, 8-tracks, CDs, etc. I have never purchased a music download, and will never purchase such.

When the "sue your customer" scheme arose, I quit purchase of RIAA affiliated tunes. I became an active, proponent of boycott of the RIAA recording companies and their toadies.

The RIAA has lost a customer for life from me, my family, and my friends. They will lose more than that, because I hate the RIAA and everything they stand for, and thus, not only have they lost me as a lifelong customer, but they have earned an enemy for life. 50 million people, who do not buy just two downloads at a dollar a piece, will offset this 100 million dollar deal. At one point, it was estimated that there were 60 million customers of Kazaa.

Two tunes NOT downloaded by each P2P user would be 120 MILLION...20 million more than their little settlement.

BOYCOTT THE RIAA / BOYCOTT THE "NEW" KAZAA !; July 28, 2006 at 6:39:00 PM EDT
raybeckerman said...: Code,

The only thing I don't understand about what you said: why not cross-sue against Kazaa?

They get people into this mess, make a bundle by doing it, and then enter into a settlement that gets themselves off the hook and does nothing to help their defenseless victims?

Best regards,

Ray; July 29, 2006 at 12:01:00 AM EDT

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JUDICIAL QUOTATIONS

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers
"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37
"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."
-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555
"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4
"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4
"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008
"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532
"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535
"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."
-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053
"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."
-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08
"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."
-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603
"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset
"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2."
-Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992
"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611
"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048
"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda
"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas
"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620
"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."
-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove