Recording Industry vs The People: Expert Witness Defense Fund for RIAA Cases Established by Free Software Foundation

Monday, November 19, 2007

Expert Witness Defense Fund for RIAA Cases Established by Free Software Foundation

The Free Software Foundation has announced that it has established an Expert Witness Defense Fund to assist defendants in RIAA cases, in order "to help provide computer expert witnesses to combat RIAA's ongoing lawsuits, and to defend against the RIAA's attempt to redefine copyright law."

Contributions to the Fund are tax deductible and may be made at the following URL:

https://www.fsf.org/associate/riaa.

1. The sole use of the funds will be to pay fees and/or expenses of technical expert witnesses, forensic examiners, and other technical consultants assisting individuals named as defendants in non-commercial, peer-to-peer file sharing cases brought by the RIAA, EMI, SONY BMG, Vivendi Universal, and Warner Bros. Records, and their affiliated companies, such as Interscope, Arista, UMG, Fonovisa, Motown, Atlantic, Priority, and others.

2. The Fund will be advised by Ray Beckerman, the author of Recording Industry vs. The People, along with a group of selected attorneys acting as advisors. These attorneys will submit payment requests to the Fund, based upon their views as to which cases are most deserving of assistance, and in what at amounts, and at what time.

3. Among the criteria to be considered in making recommendations to the Fund will be the following:

A. The importance of the case to critical legal issues.
B. The demonstrated commitment of the defendant, and/or of the defendant's attorney if the defendant has an attorney, to seeing his or her case through to conclusion, and to fighting for important legal issues.
C. The facts and circumstances of the particular case.
D. The level of investment made by the defendant, and/or by the defendant's attorney if the defendant has an attorney, in time, money, and labor, in defending the case.
E. The legal posture of the case.
F. The need for assistance.
G. The need for technical expertise in the case.
H. The quality and commitment of technical expertise which may have been contributed to the case.
I. The competing needs of other cases.
J. And other similar factors.

4. Defendants, or attorneys representing defendants, who request funding for experts or technical consultants, should send requests by email to Ray Beckerman; the subject field of the email should read "Technical Expert Funding Request".

Again, the link for donations is https://www.fsf.org/associate/riaa

Commentary & discussion:

p2pnet.net
Wired
Slashdot
Ars Technica
The Inquirer
Hard OCP
tweakers.net (Dutch)
Linux.org.ru (Russian)
ZDNet.Be (Dutch)
Ratiatum (French)
Afterdawn
Punto Informatico (Italian)
OS News (Polish)
TechDirt
Tom's Hardware (Leonardo.it) (Italian)
Slyck
Republika (Polish)
p2pnet.net
Free Software Daily
Haxite.org (Polish)
KPNEMO (Russian)

6 comments:

Anonymous said...: http://blog.wired.com/27bstroke6/2007/11/foundation-crea.html

^^ thats the permanent link for wired

(Alter_Fritz just to lazy to log in); November 19, 2007 at 10:18:00 PM EST
Juan Cierva said...: Congratulations and kudos to Mr Beckerman and the Free Software Foundation. Excellent idea.; November 20, 2007 at 7:28:00 AM EST
Art said...: Awesome news!

Also, Ray, thanks for being a part of this, as well as for all that you do!

Regards,
Art; November 20, 2007 at 9:27:00 AM EST
raybeckerman said...: art.....

Thank YOU for your generous contribution to the Marie Lindor Legal Defense Fund.; November 20, 2007 at 10:24:00 AM EST
Art said...: We all need to put our money where our mouths are if we want anything to change regarding RIAA's "reign of terror".

I'll be giving to the FSF Expert Witness Defense fund as well. I hope all of your readers will do the same.

Regards,
Art; November 20, 2007 at 1:34:00 PM EST
Anonymous said...: I'll support this. But my true premise for writing:

I'm searching for a lawyer to assist an RIAA claim that I shared songs that I have never heard and don't know. RIAA has provided me with two options: pay $4,000.00 settling out of court or risk
$60,000 plus in a law suit. Insanity. It wouldn't even be feasible in my mind if I had those songs and listened to them. Some Americans are nuts, and I don't believe we are created equal.

That's the gist of the matter.
Any affordable lawyers out there?; March 7, 2009 at 4:00:00 AM EST

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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