Wednesday, January 23, 2008

MIT "John Doe" planning to fight

Came across this report in "The Tech", MIT's online student newspaper:

RIAA Sends Institute 19 Settlement Letters Alleging Infringement
By Natasha Plotkin
STAFF REPORTER
January 23, 2008

Nineteen members of the MIT community have been asked by the recording industry to preemptively settle lawsuits for allegedly downloading music illegally on peer-to-peer networks, according to a Jan. 10 Recording Industry Association of America press release.

One MIT student who has received a letter from the RIAA said last week that he planned not to settle and that he would fight the RIAA’s attempts to learn his identity. To date, no MIT students are known to have gone to court — all have paid the pre-litigation settlement or have settled after the RIAA has sent a subpoena to MIT.

...................

An MIT student who said he received a demand letter contacted The Tech last week and said he plans to decline an early settlement and to fight the RIAA’s subpoena. He requested anonymity because he wants to keep his identity from the RIAA.

The student, who said he was “the victim of a fishing expedition by the RIAA,” said he did not want to settle because settlement would not prevent further legal action by the individual record labels the RIAA represents.

“I’m disappointed that MIT isn’t going to step up,” the student said. Other schools like Boston University and the University of Oregon have resisted RIAA subpoenas of student records more actively than MIT has, he said. Two BU computer science professors, Azer Bestavros and Jesse R. Stengel, gave sworn statements in July 2007 asking the Massachusetts federal district court to quash subpoenas that sought to identify BU community members. The University of Oregon in November 2007 asked the Oregon federal district court to quash a similar subpoena.

The MIT student who received a letter said he would like to challenge the subpoenas by collaborating with other MIT students who have received letters, but he has been unable to find the names of the other recipients because those records are considered confidential by MIT.


Complete article

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






13 comments:

Anonymous said...

Dear Anonymous MIT Student,

Many of us applaud your decision to fight, and are disgusted at MIT's unwillingness to help.

One suggestion here is to consider suing MIT itself for failing to protect your privacy under the FESRA (sp?) regulations. While they are required to turn over specified information to any "valid" court-issued subpoena, that doesn't mean roll over and die for every unopposed piece of paper that arrives in their in-box. A refusal to even question a subpoena based on unopposed, questionable, often inaccurate, and illegally gathered (no PI license in your state for SafeNet) information IS NOT protecting your private information. Suing MIT to do the job they're supposed to be doing already is a step some student will eventually take.

-Dodge Magnum

Matthew said...

"The MIT student who received a letter said he would like to challenge the subpoenas by collaborating with other MIT students who have received letters, but he has been unable to find the names of the other recipients because those records are considered confidential by MIT."

Oh, the irony.

CodeWarrior said...

Ray: I apologize for being slightly off topic, but this is something I have wrestled with for about 3-4 years at this point, and it is a copyright law question that directly deals with the RIAA issue.

I'm 55 and over those years, I have purchased vinyl 45s and 78s, I've purchased hundreds if not thousands of 8-track tapes, uncounted microcasettes, asd now, many CDs (I refused to engage in this paying for downloads crap).

All of the above media contained copyrighted songs. NONE of those media contained MP3s...NOT ONE, not even the CDs. The song format on those CDs is not the MP3. The point here is that an MP3 is not an exactly copy of the media format on ANY of those listed. By its nature, the MP3 is a LOSSY compression scheme, and as such, there is not an MP3 I have seen, that contains all the data contained in the original format.

Thus, we could reasonably see the MP3 as a "limited quotation" of the original material, and who's to say that one did not perform this limited quotation for a legitimate purpose that would be consistent with FAIR USE.

It is quite easy to see where I am going with this.

One cannot play fast and loose with definitions in a legal battle, and a "copy" is just that in common parlance, an exact duplicate of the original.

In my way of thinking, there is not one section of an MP3 that is an exact copy of the original.

Even in the physical world, bags made of inferior material, with shotty stitching, onto which someone affixes a GUCCI logo, certainly may be guilty of trademark violation, but they can hardly be truthfully convicted of making an exact copy of the GUCCI original.

I've never seen this sort of defense come up, but to me, it is not a specious or frivilous defense, but goes right to the heart of what constitutes
"copying" or "duplication".

If a person who is "making available" never possessed a real COPY of the COPYrighted material, they could not be guilty of copyright infringement in my mind, and I have registered copyrights in the past.

There was also a court case in which two scholars wrote a book about the same topic, one scholar before the other.

The second had entire paragraphs with the same wording as the first. The first scholar sued the second alleging copyright infringement. The decision by the judge was surprising. He said that since both scholars had similar training and experience and education, and in many other ways were equal intellectually, it was altogether possible that the second, independently, could write the paragraphs with the same wording, and he concluded that the sameness of the text, was coincidence.

So, there you have it.

If you had rather respond offline to this rant, please do so, but this is something that, to me is so fundamental, unless I have a rotten understanding of copyright, that it begs answering.

Best wishes as always,
~Code

Ray Beckerman said...

Code, did you say slightly off topic?

Shane said...

"I've never seen this sort of defense come up, but to me, it is not a specious or frivilous defense, but goes right to the heart of what constitutes
"copying" or "duplication"."


Don't expect Ray to give you detailed legal reasoning on why a copyright defense is inadequate or even to post a user response to the same effect. He is an advocate for his clients and is involved in litigation with the RIAA, who read this blog religiously looking for some triviality to pounce on. They already refer judges to the blog. The RIAA already expects universities and defendants to do their work for them, Ray isn't going to help them further, not that he really could since their cases are so pathetic--only their deep pockets and possible lack of ethics allow them to continue cases that should have died a natural death due to blatant inadequacies.

You've never seen that defense for a reason, because it is tangential. If you research Betamax and the Audio Home Recording Act you'll find that the imperfections of copies is already addressed in many cases and in how the AHRA deals with digital copies versus off the air analog copies from radio.

You need to keep in mind that there are multiple copyrights involved in a song with lyrics. The lyrics are copyrighted. The composition (the notes and such) is copyrighted. And, as of 1954 or so (I don't have the exact date in hand), the sound recording is copyright. You are hung up on that last one, though so is the RIAA.

The fact that multiple copyrights are involved is one reason why the RIAA "settlements" are so deceptive. Even if you pay the RIAA thousands of dollars the matter isn't settled. Their are still other copyright holders who could sue you over the same songs based on their own copyrights of the lyrics and/or composition. By settling with the RIAA's non-negotiable debt collection agency you have to admit guilt, an admission that can later be used against you in future suits over the same songs you thought you had put to rest.

The RIAA "settlements" are bogus because you are not indemnified against future suits. The RIAA loves to join non related parties in their John Doe Ex Parte trawling efforts but they go to great lengths not to join all the parties with copyright interests in the songs alleged to be down loaded.

The RIAA are deceptive bastards.

IMO

Anonymous said...

Shane,

You bring up whole new parties of interest not joined in the suit. In addition to some defendants claiming that KaZaA, and the real party of interest: the RIAA, are not joined in the suit, perhaps that should be extended to other copyright holders for the notes and lyrics as well. Make this suit all encompassing, and impossible to actually try.

XK-E

CodeWarrior said...

Shane:
Thanks. I will re-read the AHRA and BetaMax case, however, we are not talkng about "imperfections" , but instead, a use of limited material from the original copyrighted work.

Any litigator knows that definitions of terms may be the heart of the case.
If I can control the definitions of terms, I can control the outcome of a debate.

A copy, unless it has a special definition outside of the usual definition, is a data bit per data bit duplicate. There is no way that an MP3 is a copy under that definition. It is not in the same format, does not contain all of the original copyrighted material, and SHOULD be covered under Fair Use in the same way as when I quote a limited amount of copy from an article or blog, and give attribution of the source, I have "safe harbor" under the Fair Use doctrine.

If I have the time, I will revist this after referring to the original documents in the AHRA and Sony Betamax.

Now, you may well bring up legal actions which have arisen based on one artist "sampling" a copyrighted work, and that would be a valid point, but does not obliterate my original problem with the definition of what constitutes a "copy". You did properly point out the various copyrights that may be involved in the cases, such as the copyrighted lyrics.

But, thank you for your well thought out response.

Shout out to Ray as well.
~Code
http://codewarriorz.blogspot.com
Admin, http://boycott-riaa.com

CodeWarrior said...

As to the AHRA, I re-read it at
http://www.virtualrecordings.com/ahra.htm and
the only definitions that touch on "copying" is "serial copying" defined as:
"The term "serial copying" means the duplication in a digital format of a copyrighted musical work or
sound recording from a digital reproduction of a digital musical recording. The term "digital reproduction
of a digital musical recording" does not include a digital musical recording as distributed, by authority of
the copyright owner, for ultimate sale to consumers."

The word "duplication" in usual language, a "dupe" is an EXACT COPY of the material copied.

The only other instances of the word "copy" is that it appears in the word "copyright", so, we are left with the AHRA's ONLY definition of what copying is...i.e. duplication. An MP3 is NOT a duplication of the original , copyrighted material, at the physical, technical level.

Now, as to the Sony BETAMAX decision...
http://w2.eff.org/legal/cases/betamax/
decision reference page
http://w2.eff.org/legal/cases/betamax/betamax_supreme_ct.pdf
The term "copy" is not defined in the decision, however, we do find this salient quote:

"Even when an entire copyrighted work
was recorded, the District Court regarded the copying as fair use "because there is no
accompanying reduction in the market for 'plaintiff's original work.'" Ibid."

There are 540 instances of the word "copy" appearing in the Supreme Court decision. Mostly, the word "copy" is found in the words "copying" or "copyright", but no, the Court did NOT define what it means to actually "copy".

I strongly assert that if you do not have a good, workable definition of what it means to "copy", which, in itself, does not include that a copy is an exact duplicate of the item copied, I believe that there has been no refutation of my observation and the relevance of what constitutes the act of COPYING. One CANNOT have copyright infringement, if there is not unauthorized COPY made.

~Code
http://codewarriorz.blogspot.com
One of the Admins at boycott-riaa.com

CodeWarrior said...

As a last post...most of these definition(s) utilize the word "duplicate" in their definition (because it is silly to define
"copy" by saying "Well, that's when you copy something").

So, to understand what it MEANS to copy, we must then understand what is meant by "duplicate" or "duplication".

I used the "thefreedictionary.com" definition, but I believe most dictionaries will use a similar definition.

Thus, per thefreedictionary.com,
"du·pli·cate (dpl-kt, dy-)
adj.
1. Identically copied from an original.
2. Existing or growing in two corresponding parts; double.
3. Denoting a manner of play in cards in which partnerships or teams play the same deals and compare scores at the end: duplicate bridge.
n.
1. An identical copy; a facsimile.
2. One that corresponds exactly to another, especially an original."

Darn it, we keep coming back to this notion that a copy, and a duplicate, are IDENTICAL , meaning containing all the elements of the original.

Thanks for listening.
~Code

Shane said...

Codewarrior, you are on the wrong track. You are conflating the term "exact copy" or "identical copy" with "copy." A copy need not be a clone--the term for a bit-for-bit digital copy that excludes non-identical copies. Copyright is a right enumerated in the constitution at a time before exact copies were even possible. (Of course it was also a right to be granted for a limited time and then only to advance the arts and sciences--nothing in there about eternal monopolies, maximizing corporate profits or propping up outdated business models...)

While the quality of the copies at issue may be a factor in certain cases you have not stumbled upon a magic heretofore undiscovered legal keystone which, once pulled out from the arch, will cause all the RIAA's copyright claims to tumble down.

This isn't really the right forum to go into detail as to why you should look for a different legal theory for the statement you are trying to make.

Shane said...

"Copyright is a right enumerated in the constitution"

I should probably correct that--or at least point out a subtle yet vital distinction. The US Constitution, Article I, Section 8, states:
"The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

That is, there is no such term as "copyright" in the constitution. Copyright is not a "right" such as a "natural right" or a "Constitutional right" but a privilege that Congress has the power to grant for a limited time, and even then, solely for "progress of science and useful arts". The privilege Congress can, but doesn't have to, allow is a government granted, limited time author's monopoly on their work.

Copyright is called such because it temporarily grants authors the exclusive right to copy their works, not because it is the kind of right that we are all entitled to, such as the right to free speech.

The RIAA would have you believe that their "right" to copyright is inalienable as with other rights made possible by the Constitution, but this is not so. Congress has the right to grant author's monopolies but they also have the right to withdraw those rights, including shortening copyright terms. Of course there are many impediments to such a change, not the least of which are our international treaty obligations. However, in any case the RIAA has received a privilege, not a right, and they are abusing that privilege. The courts have the right to rescind copyrights at issue when those rights are being abused. Lets hope a judge finds the temerity to hold the RIAA accountable for their untenable actions.

CodeWarrior said...

Shane:
As I said, I have registered copyright works and, as admin at boycott-riaa.com, have dealt with the issues for some time.

I have read both title 17 of the US CODE in full, as well as the DMCA.

If you search on boycott-riaa.com, you will even see I have detailed the history of Copyright Law back to its beginnings, so I need no history lesson on the legal theory of copyright.

If you google "codewarrior,history of copyright" you find this link:

http://www.geocities.com/codewarrior_wins/copyright.htm

And , if you are not schooled on the history of copyright and how the US developed its copyright laws, you may find it of interest.

More the point, when one is deciding if a crime is committed, one must have a legal definition of what the crime is.

For example, for murder to exist, it is not enough that someone killed another human in cold blood, there must be mens rea.

And, I assert, if you read title 17, copyright infringement is the unauthorized "copying" of copyrighted material. I further would submit that it is essential to this whole argument, that one MUST have a definition of what "copying" is, and I refer back to the word "duplicate" in previous post.

If I copyright the sentence...

" I went to the town of Trafalgar, and broke the pottery into 12 pieces."

If someone else writes," I went to the town of Trafalgar.", without my authorization, under your definition, since it is not an identical copy but has parts of the sequence of the original, they would be guilty of copyright infringement. I assert that they would not, and I feel that a good case would be made in any court, that copyright infringement has not occurred in said instance.

We may agree to disagree, but, in case you still believe I am a newbie in this field. do a search on dmusic.com or boycott-riaa.com for the articles and posts by myself, CodeWarrior. I think you will see that I have spent considerable digital ink in pursuant of the nuances of both traditional copyright theory, and digital copyright theory.

You may also be interested in the proposed legislation I drafted 5 years ago, the Consumers Digital Protection Rights Bill, found at:
http://www.geocities.com/codewarrior_wins/copyright.htm

With that, I shall end my side of the colloquy by saying that we shal agree to disagree.

RegardZ and CheerZ !
~CodeWarriorZ ThoughtZ
http://codewarriorz.blogspot.com
http://boycott-riaa.com
http://dmusic.com

Shane said...

"As I said, I have registered copyright works and, as admin at boycott-riaa.com, have dealt with the issues for some time."
Your Blogger profile also shows an interest in cryptozoology, UFOs and ghosts.

"With that, I shall end my side of the colloquy by saying that we shal agree to disagree."

Indeed. If you are so learned in Copyright law one wonders why you are bothering to question Ray with an OT post?

While you may have researched copyright law and have read a great deal about it, it is still possible to chase rainbows even then. Courts have a nasty habit of not smacking themselves on their foreheads when confronted by a supposedly novel Grand Unifying Theory of Everything and saying "OH! Exact copies! What were we thinking! We've messed up for the last 200 years! I'll just wipe away all this statute and precedent with a signature of my pen."

While I wish you well in your pursuit of copyright reform I can't say as I'm swayed by your arguments vis-a-vis exact copies and I'm really not going to go into a point by point refutation here on the RIAA's favorite blog.