Tuesday, March 24, 2009

RIAA files opposition brief, defending constitutionality of $750-150,000 statutory damages per MP3 in Tenenbaum case

The RIAA has filed its opposition brief in SONY BMG Music Entertainment v. Tenenbaum.

As in the case of the Government brief, it ignored the authorities cited in the Free Software Foundation's amicus curiae brief.

Plaintiffs' Memorandum in Opposition

Commentary & discussion:

Copyrights and Campaigns

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


Alter_Fritz said...

Oh, now are those "lawyers" from HRO who are working for Sony-BMG, EMI, Universal and Warner already at the 800+ filenames in the list.

800+ times 150000 (since they allege willfulness!) = wow, the "kids interogation expert"-Raynolds probably got wet pants given so much money. (of course if the 800 filenames is suddenly not an argument given that they sued only for less then 10 what place has this hyperbole in this memo?)

Of course the ridiculousness of Timothy's argument that these songs were distributed to "millions" by Tenenbaum is so obvious, no need to comment on that with logic.

Everyone with a brain and elementary school tought counting abilities should see that it is Bovine Feces what Holme, Roberts and Owen lawyers are arguing in that Memo!

skeeter said...

The RIAA lawyer states, "Under Defendant’s theory, a shoplifter or jewel thief would seem to warrant some type of relaxed treatment so long as they simply kept the stolen goods instead of selling them to others. From the retailers’ perspective, the impact of the theft is the same, they are
denied the value of the goods." In fact, a person with a song in their shared file may have paid for it or ripped it from a CD and not have stole it at all. Then the RIAA lawyer states, "he then distributes those copies for free to millions of other users on the Internet without authorization over a period of several years. The harm to Plaintiffs from such unauthorized copying and distribution of their copyrighted works is incalculable." Proving that statement is going to be incalculable as well as impossible. Back to the "making available" mess.

Anonymous said...

The judge can choose to "allow" or "reject" the FSF's brief? My question is, even if he "rejects" it (or whatever negative action he could take), will he still read it enough to learn about the relevant authorities, which clearly impact arguments made by Plaintiffs and the government? I don't understand the legal procedure at work here.

Anonymous said...

"She", not "he". Apologies.

Ray Beckerman said...

I can't imagine a thorough Judge like Judge Nancy Gertner would not read the applicable authorities, whether or not the amicus curiae brief is formally accepted.

However, I also can't imagine what possible grounds for objection the RIAA could express for rejection of the brief, and I can't imagine the Judge accepting any such nonsense from them. So I do expect the motion for leave to file an amicus curiae brief to be granted and for the brief to be read and absorbed.

Anonymous said...

Hmmmm... Did the RIAA copy and paste from the DOJ memorandum or did the DOJ get a copy of the RIAA memorandum before hand and copy and paste from it?

Since it seems that they are in lockstep...

Wouldn't put it pass them.

Anonymous said...

"Only in Defendant’s imaginary world are the record company Plaintiffs the wrongdoers"... Oh Really! Give me a break.

Who hired a professional investigator to invaded millions of private computers, without authorization, to copy, fondle and captured files and screen shots, as well as record computer user names and data from protected computers? Who then attempts to extort money for the dirty work? Who was it that initiated the private investigations months before filing any charges, and without any regulation whatsoever? Who was it that claimed they were "Doing what any other user of a P2P network would do” by spying on private individuals and getting paid a bounty for it? Who devised this scheme while simultaneously selecting a targeted cross-section of students from various institutions to terrorize (an unreported majority of which are female)? What trade group advertised the terror scheme by press releases, radio and television coverage and orchestrate an abuse the Federal Courts as if they were a private hammer, used to attempt to drive the Genie back into the Bottle? Who is it that advertised their attempt to create an “Urban Legion” through social indoctrination? Where in the Copyright law are the Plaintiffs (or any private industry) given the authority to conduct private investigations for hire on such a mass scale as has been conducted here? If Congress authorized such conduct, then it has exceeded it authority, just as it has with its ridiculous statutory damages and the law that supports them. The current law is nothing more than a distortion of the original concept of the copyright, perpetuated by big content lobbyist wining and dinning our elected officials. The Plaintiffs minimize their violation of basic constitutional civil rights to privacy and due process in an attempt to promote their scheme, and pretend that they are the victims. Then they abuse the Federal Courts via Ex Parte communications with the courts using a centralized litigation team, at the expense of the taxpayers. The recording industry bought the law, have now infiltrated the DOJ, lobbied and spent huge money on elected officials, and may have even found a way to have their private investigator SafeNet secure a contract with the DOJ and other federal agencies. Who was it that has brought the nearly 40,000 lawsuits? The companies who allow the music into the public domain, and in some cases have purposely placed it there, is crying foul! How wrong it that? They need to “Get off the Cross” someone needs the wood. The Courts on the other hand, have got to restore the balance of power, stop the greedy madness, and fulfill their requirement of Justice and Equality for all. We live in interesting times.

mhoyes62 said...

Some of the problems I see in this are:

1) They can not definitively identify the computer they are purporting to catch.

2) They assume that the records of the ISP is accurate and that the clocks are synched between their "investigation" service and the ISP ( I have seen no attempt at garnering that information)

3) They can not say how long the purported materials were available, nor how often the defendant is online, nor if the defendant was even online at the time of the alleged "distribution"

4) A little simple math would seem to refute the "millions" of distributions. If you take a small mp3 file (say 3MB, which is really a fairly low quality) and put it on a share (intentionally or accidentally) what would it take to transmit to a million people. Well, most cable systems limit upload speed to 512 or 768 Mb/s. Let's take the larger figure, that works out to 98304 bytes per second (ideal, not accounting for overhead bytes in the TCP protocol or other items). 3MB is 3145728 bytes and dividing the speed into the size, we get 32 seconds (again, this is unrealistic as there is a lot of overhead data that also goes over the line). So, for a million distributions, it would take 32 million seconds. Which is 8889 hours. Assuming the connection is up for 24 hours a day, 7 days a week, and continuously transmits with no stopping, it would take 370 days. So, if you have 20 songs, all of low quality, sent to a million pc's, that's 20 some years, and surely someone would notice that amount of continuous traffic which would make an organization like MS unnecessary.