Recording Industry vs The People: RIAA Launches New Offensive Against College Students

Thursday, March 01, 2007

RIAA Launches New Offensive Against College Students

This report in from Variety.com:

RIAA targets university students
Recording industry launches antipiracy effort
By WILLIAM TRIPLETT

The Recording industry launched an antipiracy-educational initiative aimed at university students that includes a chance for a "discounted" settlement and no record being kept of the illegal downloading or file-sharing.

Citing a recent survey that showed some 50% of students continue to download or swap illegally, Recording Industry Assn. of America officials said Wednesday they had sent 400 "pre-litigation settlement letters" to students at 13 universities.

Previously, the RIAA has first filed suit after identifying a screen name and computer address, then sought ought the owner of the screen name.

But now, the org is going first to the alleged infringer by contacting the school and asking for the letter to be forwarded to the relevant student. The letter proposes a "substantially discounted" settlement and a promise of no lawsuit and no record if the student responds cooperatively within 20 days.

Complete article

And see coverage by p2pnet.net's Jon Newton on the RIAA's "Incriminate Yourself" website:

RIAA 'incriminate yourself' site

p2pnet.net news:- "Warner Music, EMI, Vivendi Universal and Sony BMG, the members of the Big 4 music cartel, think they've figured out a neat way to save themselves embarrassment in the courts, and costly lawyers' bills, as they try to sue you into buying their 'product'," p2pnet posted in today's (February 28) lead story intro.

"Their 'incriminate yourself' web site is now online."

The idea is: American students get to admit they've been 'illegally' downloading copyrighted songs without Warner Music, EMI, Vivendi Universal and Sony BMG, the members of the Big 4 music cartel, actually doing anything themselves.

Complete article

Commentary & discussion:

mark'lectic
Knoxville News Sentinel
Heise Online (German)
ASU Web@Devil
North Dakota State University Spectrum
Athens News (Ohio University)
Athens News (Ohio University)
College Times (Arizona)
p2pnet.net
Download Squad
Knoxville News Sentinel
LSU Daily Reveille

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

9 comments:

Scott Ferguson said...: The RIAA "incriminate yourself" site is going to be as ineffective as your typical police department gun buyback program. The premise is stupid.

Did HR&O dream this up? More to the point, does HR&O actually care whether or not the campaign they're waging is hurting the business of their clients?

We can never know whether the RIAA is waging this campaign against the better judgment of HR&O, or if HR&O is egging the RIAA on so that the firm can keep the bills flowing. If it's the former, then I pity them. If it's the latter, then it's a thumb in the eye of the legal profession.

To reiterate from an earlier comment, lawyers are trained to think tactically, not strategically. Hiring a law firm is a tactical decision and is often appropriate; but if it's based on bad business strategy, then the best tactics in the world won't save the business.

From the outside, it sure seems like the lawyers are running the music industry. Molto stupido, Edgar.; March 1, 2007 at 11:13:00 AM EST
Alter_Fritz said...: Ray, you might be able to hepl me out here:
One point that I don't understand;
Those students that the RIAA want ot reach with this "program", they download a product that is NOT offered legally by those copyrightholders themself.
If someone does not offer to sell a product to these students in the form they want to have it, how can the RIAA as the mouthpiece of the copyrightholders claim that they suffer any damage? No offer to sell = no request to buy = no damage suffered I guess.

And as a subpoint of this argument; the "not for sale" product that those students wish to have on their PCs and Musicplayers is only a, by ~90% of the original artistic and copyrighted creation, reduced piece of information.
Why haven't we seen any defense yet that the files that are alledgedly copied in those cases are NOT the copyrighted work?
Using only 10% of a copyrighted work that is not even legally available from the copyrightholders - should that not be no copyrightinfringement at all but fair use?; March 1, 2007 at 11:22:00 AM EST
Scott Ferguson said...: One other thing: Don't colleges and universities believe in defending academic freedom anymore? The RIAA is obliquely assaulting that.

Also: I'm interested in knowing whether HR&O is targeting the music industry's customers in the state of Colorado. If not, I would like to know why.; March 1, 2007 at 11:28:00 AM EST
Anonymous said...: Are any of these colleges actually defending their student's privacy? One would expect that the payment of $10,000+ tuition a year would entitle the students to some privacy on the networks of the schools. I sent an email to my alma mater (Miami University) to find out what their particular policies are policies are regarding the students who go there. If I don't like their answer I'm done giving to them forever. I would encourage students and alumni to find out what their universities' policies are when they recieve a request for student information.

CT
2L at OSU; March 1, 2007 at 1:24:00 PM EST
raybeckerman said...: I hope that the universities will defend their students and will help their students find out what their legal rights are.; March 1, 2007 at 3:22:00 PM EST
StephenH said...: I think that someone ought to sue for violation of "innocent till proven guilty" here. I also think that Ray Beckerman should offer to debate Mitch Bainwol on the usefulness of this program and this lawsuit campaign.; March 1, 2007 at 10:02:00 PM EST
Alter_Fritz said...: Mr. Kelso of HRO already wrote the first letters!
For those that aren't students any more or those students in Colorado/10th circuit court district that might not get one of those themself, this is how they look like:
http://p2pnet.net/story/11515
http://www.p2pnet.net/stuff/riaalet.pdf; March 3, 2007 at 2:24:00 PM EST
raybeckerman said...: Thanks for the tip, alter_fritz.; March 3, 2007 at 2:59:00 PM EST
Kate said...: My son just recieved the April 11th version from his university. I have contacted 2 lawyers and am waiting to see their opinions on how we should proceed. He had 44 recordings some of the others had thousands. Can you negotiate based on the amount that you have?; April 16, 2007 at 3:32:00 PM 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