Recording Industry vs The People: Another copyright law blogger quits, this one citing, as a reason, the RIAA's lawsuits against ordinary people

Sunday, January 25, 2009

Another copyright law blogger quits, this one citing, as a reason, the RIAA's lawsuits against ordinary people

Keith Henning, a Little Rock, Arkansas, attorney who has been publishing a copyright blog called "copywrite.org", wrote a post in October in which he announced the end of of his blog.

He gave four reasons for his decision, the first three of which echoed those given by Bill Patry when he closed his blog.

The fourth reason Keith gave was this one:

4. It is really depressing. The phone calls I get are the worst. On average, I receive about one phone call every other day from someone being sued for file-sharing music. I have my response memorized. There is no good news for (usually parents of) someone getting sued by RIAA, et, al. I believe that given the right case I could win. I have a dozen arguments against these suits and a complete plan of attack ready, starting with having the record company prove they are the rightful holder of rights, that each file contained both what it purported to be and that it was a enough to be infringing, that the sharing does not equal distribution, that the collection of information equaled unlicensed private investigation, that the collection of information was without permission and equals hacking, abuse of process, etc. However, no person with anything to lose would do anything but write the $4-5k check and go on with their lives. The sadness in their voices pains me. This is the reason I didn’t do criminal law or family law or even personal tax law. I love the law, I don’t like the messiness of peoples lives. I really love IP law. If someone would give me a full time IP law teaching gig, I would likely die in that job. However, I really can’t take anymore of these calls from people being hijacked by record companies for (what is usually) their life savings, or more.

Complete article.

Commentary & discussion:

p2pnet.net

Keywords: lawyer 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 portable music player

9 comments:

Randy said...: I've always wondered if all of the people who have settled could establish a class action, claiming that they were strong-armed into settling. For that matter, since all of the pending suits are substansially the same (at least to me...a non-lawyer), couldn't *they* also create a class?

Just a thought,
Randy; January 25, 2009 at 12:27:00 PM EST
Anonymous said...: I seem to remember somewhere on this blog that there was an argument about accusing the RIAA of extortion, but the counter-argument was that since there was no payment made yet, it wasn't extortion. Since the settled cases HAVE made the payment (for a rediculous amount of money totally disproportional of unprovably speculative losses), I suppose they can claim extortion at that point.; January 25, 2009 at 1:44:00 PM EST
derivative said...: I feel for the guy (and for you, Ray). I am not a particularly religious person, but I sometimes find Reinhold Niebuhr's "Serenity Prayer" helpful:

God grant me the serenity
to accept the things I cannot change;
courage to change the things I can;
and wisdom to know the difference.

You are certainly showing the courage, Ray. Your defense of Marie Lindor has been passionate, inspired, and gutsy. Your blog and articles informing both the lay public and other lawyers and judges about what is happening here must be having a profound effect on the great beast, judging from their legal filings and public pronouncements.

But I hope you get at least enough serenity in your life to avoid burnout -- the world needs you to be strong enough to keep fighting the good fight.; January 25, 2009 at 2:46:00 PM EST
raybeckerman said...: Thanks derivative.

The way I'm constructed I get more serenity from doing what I can, than from walking away.

I don't take kindly to these schoolyard bullies pretending to be lawyers.

What Keith said really struck a resonance with me, though; it really is painful to talk to so many wonderful, decent, law-abiding Americans who are being caused so much pain by a handful of low lifes such as Timothy Reynolds, Matthew Oppenheim, and Richard Gabriel.

I am hopeful, though, that the low lifes are finally starting to crawl back to the rocks from under which they crawled out 5 1/2 years ago, looking for a way to make money off the pain of others.; January 25, 2009 at 3:14:00 PM EST
Alter_Fritz said...: But unfortunately the "low lifes" seem to win. :-(

Remember what this "Mr." Ritter did for "Rich" Gabriel?!

http://recordingindustryvspeople.blogspot.com/2008/05/richard-gabriel-appointed-to-serve-as.html; January 25, 2009 at 3:37:00 PM EST
raybeckerman said...: I rejected a comment which opined about Mr. Oppenheim's mental health. I do not think it fair to judge people on stuff like that.

I judge him on his deeds.

And his deeds are foul.; January 25, 2009 at 4:22:00 PM EST
Scott said...: Since so much of this nation's wealth is tied up in intellectual property, we could easily justify a separate federal court system for IP issues, just as there is a separate tax court. The courts could then develop a bench with deep knowledge of IP -- and who couldn't be easily snowed by sharp practice. The IP courts could also develop their own rules and procedures that would shorten litigation so that more cases could go to trial.

Because of the way the RIAA manipulates the courts, only rich people can mount an adequate defense. Making justice unavailable to average people corrodes civil society. In effect, the RIAA isn't protecting its members' IP, it's attacking America by corrupting its court system.

The RIAA has to be stopped, and the sooner the better.; January 26, 2009 at 10:50:00 AM EST
Anonymous said...: We need to find a way to get Ray and President Obama or a high ranking aid in a meeting together. It is not fair that only the RIAA has our government’s ears.; January 26, 2009 at 11:58:00 AM EST
Anonymous said...: I just wanted to say that, I can definately relate that this fight can often feel like an uphill battle. From experience, I know that everyone who has anything to do with standing up for the RIAA victims is making a huge difference, even though at times, it may not feel like that. I'm very grateful to everyone who is and has worked very hard to stand up for people like me.

Never will I understand how the RIAA, and the people working with them, can feel good about what they are doing and/or have done. After all this time, it still amazes and sickens me. Maybe for them, it is simply a job; but, the impact they are having on people's lives is devastating. They took a lot away from me that I can never get back.

Thank you very much to everyone who is doing whatever they can to fight. Your ongoing work is very appreciated.; January 27, 2009 at 3:51:00 PM 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