Tuesday, December 19, 2006

RIAA Moves to Strike Copies of Netherlands Decision & Expert Testimony in UMG v. Lindor

In UMG v. Lindor, the RIAA has moved "to strike" the decision of the District Court of Utrecht and the expert witness declaration cited by that decision, which had been submitted by Ms. Lindor's attorneys in opposition to the RIAA's motion for a protective order with respect to the MediaSentry agreements. Surprisingly, the RIAA attached -- as an exhibit to its "motion" -- a portion of a post from this blog:

December 19, 2006, Letter of Richard L. Gabriel*
Exhibit A -- portion of December 15, 2006, post from "Recording Industry vs. The People"*

In response to the RIAA's motion "to strike", Ms. Lindor's attorneys submitted a copy of the decision of the Amsterdam Court of Appeal affirming the decision of the District Court of Utrecht:

December 19, 2006, Letter of Ray Beckerman*
Exhibit A -- July 13, 2006, Decision of Amsterdam Court of Appeal*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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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


Alter_Fritz said...

I must not understand why RIAA-Richard things that some 4 year old stuff that has nothing to do with p2p, filesharing and all the issues at hand, is relevant but statements from a Professor, that oviously knows what he is talking about with regards to those computer, p2p filesharing issues, is irrelevant . Must I?

Ray explain please: If he files screenshot(s) of a blog
- the RIAA seems to love screenshots very much in favour of real evidence by technical competent experts and thinks that they can confuse technological not so savvy judges with hundreds of screenshot paper instead of expert knowledge -
how can that prejudice a court against their position? Should a smart lawyer NOT file documents from which he believes they could prejudice a court against his position?

Alter_Fritz said...

Page 1 of 100

he truely loves screenshots!

raybeckerman said...

Yes, a smart lawyer would not file things that are contrary to his client's position.

For example, a smart lawyer would not wait 12 days AFTER the judge heard oral argument, and then submit a 4 year old published case -- to which the judge had access -- which contradicts his whole argument because it says that even if something is a "trade secret" it should be disclosed if it's relevant to the case.

Nor would a smart lawyer try to "strike" a decision of a court of record from a well respected judicial system which our nation recognizes, and which the judge will obviously find helpful and informative.

raybeckerman said...

Also I don't think a smart lawyer who represents the RIAA would constantly be asking the judge to read "Recording Industry vs. The People". But I do appreciate Mr. Gabriel's assistance in that regard, so please don't say anything about that publicly.

Alter_Fritz said...

This [LA County DA and SAG office link] is completely Off Topic and the only relevance is that it has to do with one of these "well-known and respected" record companies that are the plaintiffs in those cases at issue.
Lets hope no judge that gets directed by Mr. Gabreil clicks the link! Mr. Gabriel could argue this could prejudice his clients with respect to the unclean hands defence ;-)

CodeWarrior said...

I always enjoy Alter_fritz, and, usually, they are so on target I have little left to say, but I did want to go off topic a little but still on topic, in the notion that the RIAA loves to take screenshots of this and other blogs.

The RIAA is victimizing the public. The public has a right to fair use of limited parts of material (since an MP3 is ONLY a limited portion of the original material).

Be that as it may, when the RIAA started its "pay us or we sue" campaign, it REMINDED me of the definition of extortion in Black
's Legal Dictionary...
"Extortion (Black's Law Dictionary - 6th Edition) is defined as:
"The obtaining of property from another induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Certainly, in those cases when the defendant had done nothing wrong, the threat under some color of official right, to bring legal action UNLESS money was given to them, certainly comes close IN MY MIND to that definition, though I am not a lawyer nor do I play one on TV.

People have a right to fair use of digital media, such as I proposed a couple or more years ago.

To Wit :

Codewarrio'rs Digital Rights and Protection Bill
My Bill
My bill proposal...---------------------------------------------------------------------------------
. _________To define, enumerate, and clarify the rights of consumers with regard to thereproduction, transmission, usage, storage, manipulation, and other issues concerning digital data, for the purposes of non-commercial, personal use.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembledIN THE SENATE OF THE UNITED STATES(Month) ___, 200__________________________________ introduced the following bill, which was read twice and referred to the Committee on _____________________To protect and outline the rights of consumers of digital media , personal computing devices, and other digital devices, used for non-commercial, private uses, and to provide for the punishment for violations of any provisions of this Bill.SECTION 1. SHORT TITLE: TABLE OF CONTENTSSHORT TITLE. -- This Act may be cited asthe "Digital Consumer's Rights and Protection Act."SECTION 2. CONGRESSIONAL FINDINGS AND PURPOSE.A) FINDINGS- Congress finds the following:1. Consumers are using personal home computers as an important means of home entertainment, vehicles for communication, and for storage and manipulation of personal data. Concurrently, they have developed certain reasonable and legitimate expectations concerning the right to store, use, manipulate, and transfer digital data to other home users. They further have certain proper expectations that the constitutional protections afforded to them by the Bill of Rights , should apply to their computer, as it does, in like manner , to their domicile. For example, the protections against unreasonable search and seizure which the constitution applied to a person's residence, and which was later also applied to their personal vehicle or conveyance, should now also be applied to the personal computer.The reasons for these assertions are manifest. Home computers may, and often do, contain personal and private information including such material as personal financial records, medical information, business information, and other personal and private data which may apply to the user themselves, but also, in the case of a shared computer, or a "family computer", the machine may in fact hold personal records for many persons, both of adolescents, and adults.Also, much in the way a personal vehicle allows a person to physically travel outside the home, so does the personal computer, allowing far greater travel and with far greater speed than an automobile. In these cases, the personal computer may be seen as both a home device, and a personal conveyance.========================================================================================Digital Consumer's Rights and Protection ActPage two2. For the foregoing reasons and others, citizens have certain legal rights, and protections, which should extend to their personal digital storage devices. It is maintained that the constitutional protections against abuse by the government, provided to each citizen in the Constitution of the United States, and in other Acts such as the Privacy Act of 1974 , shall be also extended to protect consumers from unauthorized incursion into their digital storage devices, and that private persons, private companies, and any other legal entity, shall be barred from performing unauthorized and warrantless searches of the devices in which citizens store their digital data. Without limitation, all protections afforded to citizens by the government in their homes and vehicles, shall also be extended to their personal data storage and devices which create digital files such as personal computers, personal digital assistances, and other similar devices, currently in use, or which may be brought into use at a later date.3. It is further found that citizens have a right to be protected from having their rights violated by any person, business, enterprise, regulatory agency, or other entity, whether said entity is in the public or private sector. We find that the founding fathers did not intend for private businesses to have powers and abilities to violate the rights of private citizens, in any manner which they found would be improper or unconscionable for the government to do. This bill will thus bar any private or public entity from violation or abridgement of any rights or protections under law. This provision has been deemed to be necessary, as a result of the actions of certain private parties and companies, which have used the Digital Millennium Copyright Act (DMCA) of 1998, to act in such a manner, as to unreasonably conduct unreasonable searches and seizures within the informational storage devices of personal computers attached to internet connections.4. The Digital Millennium Copyright Act (DMCA) of 1998 has enabled private individuals, companies, and others, to violate basic, constitutionally protected rights of private persons. The DMCA has enabled private persons and companies to violate the protections afforded citizens by circumventing the traditional methods by which law enforcement officials are legally bound to obtain subpoenas. This circumvention is expected to lead to innocent persons targeted without proper evidentiary procedures being followed. The DMCA has emboldened and enabled the violation of the right to be secure in ones own computer. It is asserted that the reasonable expectation of privacy which are constitutionally guaranteed, have been obliterated by the draconian actions which certain companies and persons have perpetrated upon the public. The alleged raison d'ĂȘtre for the DMCA was to encourage original creation and provide copyright protections to creators in the digital age. This act was an amendment of Title 17, and was an implementation of the WIPO (World Intellectual Property Organization) copyright provisions. Due to the fact that the DMCA has resulted in the enabling of people in the private sector to violate constitutionally provided protections and rights, it is now asserted that this Act, through its practical application, has proven to be ill conceived, and is in fact, a threat to the protected rights which citizens of the United States were assured of, by the Constitution. Thus, as the DMCA comes in conflict with the Supreme law of the land, it is hereby found that the DMCA should be repealed.5. In 1984, the Supreme Court of the United States, ruled in a 5-4 decision in the Universal City Studios v. Sony Corporation case, that home recording of copyrighted materials, would be legal under the fair use provision, since the action was a "non-commercial, nonprofit activity".===================================================================================Digital Consumer's Rights and Protection ActPage threeAlthough the main issue in this case was that recording programs which were copyrighted (video cassette recorder) were being "time shifted" for viewing at a later time, the central theme of the decision was that it should be legal for home users to make copies of copyrighted material without obtaining prior, written, express permission of the copyright holder to do so.In the 21st century, more and more, the format of storage and transmission of entertainment programming is moving from an analog format to a digital one.Even television broadcasters are now transitioning to a high definition digital format.This transition from primarily an analog to a digital format for data storage necessitates the laws to reflect this technological shift as well. For example, many film rental businesses are moving slowly from offering movies for rent in a VHS format, to a DVD format. People are now recording television programs not on videotape, but on a hard drive (the TiVo is one such device currently in use). There has been an evolution in the storage of music from vinyl discs to "8 track tapes" to audio "mini cassettes" to storage on CD (compact discs).The law needs to reflect this change in technology, and to extend the fair use protection to consumers who wish to copy music from one media (e.g. CDs) to their hard drive, or other media, either analog or digital. To enable this reasonable measure, this is another reason that the wrongheaded DMCA should be repealed, and replaced by a more contemporary law, which serves to protect the American consumer. As it is, the practical application of the DMCA is such that it is making criminals out of millions of citizens. The manner in which certain companies and persons have abused the subpoena powers under the DMCA, it has empowered them to violate the basic and fundamental constitutional rights of American citizens which have been vouchsafed for two centuries, in a mad and unreasonable flight to pursue potential alleged copyright violations for pecuniary interests. The burden of proving that the nature and degree of harm which alleged copyright infringement may exact on complaining parties, must be weighed carefully against the degree of harm which such actions may cause, or have caused. Furthermore, it is the burden of the copyright holder to prove that the alleged infringement is in fact the sole or proximate cause of such harm. It is not sufficient that a copyright holder make unsubstantiated speculations, or "post hoc ergo propter hoc" assertions as to cause and effect.6. Consumers shall hereinafter have certain specific rights with regard to digital data and files which they have legally acquired. It is further understood that these rights shall not exclude nor prohibit the free exercise of any other rights, which are not specifically enumerated nor described in this bill. Consumers shall have exclusive right to perform the following modifications and to exercise the following uses of digital data and media which they have legally acquired.1) Time shift - record digital presentations and store them for use a later time.2) Space or location shift - Consumers have the right to move digital files from location to location, or from one device to another, without losing any legal rights originally afforded to them as an owner or user of the original file in the original location.====================================================================================Digital Consumer's Rights and Protection ActPage four3) Format shift / format translation -Consumers shall have the right to convert digital files and digital media from one format to another. For example, if a customer purchases a music CD, they shall have the right to convert the music tracks from the CD into other formats for storage, transportation, or transmission. Such formats shall include wav files, MP3 files, midi files, au files, aiff files, and any and all other formats which exist currently, or which shall be created. Such format changes shall not diminish nor eliminate any rights which the customer had with regard to the original format.4) Backup of original data legalized- Owners of digital data in any format, hereinafter have the right to make backup copies of original discs or other media, for the purpose of preserving the material, owing to the fragile nature of the CD media, or other media.5) Multiplatform usage - The consumer shall have the right to move digital data from one operating platform to another, e.g. from a Windows PC to an APPLE "Mac" platform, or other operating system platform.6) Consumers shall forthwith have the right(s) to use technological methods, devices, algorithms, software, and other means, to accomplish the above reasonable and proper actions, and to secure the effective usage of the media and files under their care, custody, and control. The right to implement various hardware and software solutions to accomplish these goals, shall not be abridged , modified, nor infringed upon by other laws, acts, statutes, or other legislative actions existing now.B) PURPOSE -1) Congress finds that it has a legitimate and mandated purpose to maintain a reasonable consistency in legislation, such that legislation is not passed which allows, through extension and practical application, the violation of the rights of the majority of citizens. A case in point was the Eighteenth Amendment, the National Prohibition Act, or the Vested Act. This act was found to be unenforceable because it was widely regarded as a wrongheaded act, was regularly disregarded and violated by the majority of people who had previously purchased and consumed alcohol, and effectively turned millions of Americans into criminals. When an Act, through its application, enables wholesale violation of constitutionally protected civil, and by extension and application makes millions of Americans criminals, it is asserted that this legislation should be amended to correct the harm, or, if it cannot properly be amended to avoid the harm, should be repealed.It is found that the DMCA has become such a template for a mass violation of rights, and, through a meticulous application and enforcement of its provisions, would make criminals out of millions of Americans, who regularly make digital copies of all kinds of files. In point of fact, each website is copyrighted upon creation, and millions download copyrighted images, text, and code daily upon visiting these sites without prior express, authorization from the copyright owner/ website creator. This technical violation of the DMCA by an ordinary act of internet usage tends to point out that the Act criminalizes benign actions by ordinary citizens.===========================================================================================Digital Consumer's Rights and Protection ActPage fiveThe Congress has to balance the harm which an Act generates, with the benefits it provides. For around two centuries, the Copyright Act which preceded the DMCA, did an acceptable job of protecting the rights of those who wrote, drew, performed, and otherwise created novel and unique works of art and industry. The widespread abuses which the DMCA has enabled, along with the aggressive manner in which certain parties have exploited these provisions, have pointed out with great clarity, the need to correct the harm. It is found that the DMCA is thus, fundamentally flawed by the manner in which it provides for sacrificing the rights of consumers and other citizens, in favor of simple pecuniary interests. It is found that because of the fundamental flaws, the passage of the Digital Consumers Rights and Protection Act is necessary in order to offer a restatement of the rights consumers have, with regard to their ability to copy, store, transfer, and translate digital files and digital data.The purpose is thus to bring the rights of consumers in a digital age into compliance with constitutional provisions and protections, but to define and specify how they may properly and legally accomplish these rights, and the means by which these protections may be ensured.SECTION 3 - DEFINITIONSThe following are definitions for terms used in this Bill. If words are not specifically defined, the ordinary or usual meaning in common parlance will guide the reader in understanding their meaning.1) Person - Any natural and/or legal person or individual who is a citizen of the United States of America.2) Consumer - any natural and/or legal person and/pr Individual who legally purchases, uses, maintains, and/or disposes of products and/or services3) Digital Data -1. Data represented by discrete values or conditions, as opposed to analog data2. Discrete representations of quantized values of variables, e.g., the representation of numbers by digits, perhaps with special characters and the "space" character.3. Time shift - the recording of any digital data in real time, that is viewed or otherwise used at a later period in time, i.e., there is a temporal delay between recording and usage.4. Space shift - the physical transference of digital data from one location to another, or the copying of said data from one location to another. This covers movement from one point on a fixed media to another location, from one fixed media to a different one, from one media to a different media, or any combination thereof, and of transmission and transferal not herein described, but which can logically be inferred from this definition.5. Format shift - the translation from one format or file type to another. This would include any change in a data file or file type which would render the file in any manner changed, and/or any change from one form in which data is stored or used, to another form in which data is stored or used. Encryption and compression are specifically allowed by this provision, and are thus legalized for personal users for non-commercial, nonprofit uses.============================================================================================Digital Consumer's Rights and Protection ActPage six6. Backups (and/or making of backups)- describes any process whereby a consumer engages software, and /or hardware applications, devices, technology, and/or algorithms to make a perfect copy or image of original material. The act of backing up one's digital data can be done in a manner that the backup is a mirror or exact duplicate of the original, and/or an encoded version that is capable, through a technological action, to reproduce the original on demand.7. MP3 - Is the file extension for MPEG, audio layer 3. Layer 3 is one of three coding schemes (layer 1, layer 2 and layer 3) for the compression of audio signals. Layer 3 uses perceptual audio coding and psychoacoustic compression to remove all superfluous information. Thus the MP3 format is considered a lossy type of file compression algorithm, akin to the JPEG format which is used in graphic files compression.8. CD - or compact disc is considered to be a high-fidelity digital audio recording medium. A standard CD is 12 centimeters (approximately 5 inches) in diameter, with an identifying label on one side. See also CD-ROM. This has become a popular distribution medium for both music and software due to portability and storage capacity.9. Hard drive - a computer term for hardware that holds and spins circular discs , usually made from metal or even glass, that reads and writes data to the disc. A hard drive is usually a fixed drive, although modern technology has made hard drives in a removable form as well.10. Personal computer - This tem has come to represent a computer (or computing device) which is primarily used by home users for non-commercial, private use. Companies also use personal computers, but most of these are connected with larger computers called "servers" which connect and facilitate communication between these individual personal computers. The term is usually in reference to the hardware, as opposed to the operating system. Home users employ various brands and types of operating systems from Windows, to System X (Mac), to less well known ones such as Linux, Unix, BeOS, and others.11. DVD - This shall identify a digital storage medium which has a larger storage capacity than that of the compact disc, or CD. The term DVD originally referred to a Digital Video Disc, since the original content of these discs was that of prerecorded video. The term which is more properly used now is "Digital Versatile Disc" due to the increased availability of devices which are used on personal computers, which can write and rewrite to, the DVD media. These digital media are being used to store a multitude of data files, formats, and media files. The digital versatile disk (DVD) holds4.7 gigabytes of information on one of its two sides, although, this storage parameter may certainly change as technology becomes more advanced.12. CD or DVD player - This shall be understood to mean, and identify, any , and/or all devices which are capable of reading one or both of these digital media, and of translating the media into a usable form.=========================================================================================Digital Consumer's Rights and Protection ActPage sevenSECTION 4 - Punishment for violation of any provisions of this BillIt is self evident that for legislation enacted by a governmental body to be enforced, that there be needs to be provisions , establishing punishments for any person , group of persons, business, or other entities who may act in such a manner as to violate the Act.It is hereby held that the rights established under this bill are of such importance to the individual consumer, that the punishment(s) for any violation of any provision of this bill need to be of a magnitude to deter potential violators of this bill.It is hereby stipulated that, any willful or intentional violation of this bill en toto, or any provisions thereof, shall be punishable by a fine of one hundred fifty thousand United States dollars ($150,000.00) and that concurrent and/or consecutive violations, will also carry a fine of one hundred fifty thousand dollars per incident or per violation, whichever is the largest in number. For example, if a company was to conduct five illegal searches of a consumer's hard drive within a period of five minutes, this would constitute five violations, each resulting in a fine of one hundred fifty thousand dollars each, resulting in a fine for that event of seven hundred fifty thousand dollars ($750,000). Furthermore, individuals who opt to violate the provisions of this act, upon a true conviction for violation of this Bill, would be subject to imprisonment, with a term not to exceed three (3) years in federal prison, per violation. This term of three years, could be assessed for one violation, and multiple violations, could expose any person convicted of multiple violations, to receiving either concurrent, or consecutive terms of imprisonment, of up to three years per violation, depending on the findings of the Court.SECTION 5 - Changes in current laws.Passage of this bill shall repeal the Digital Millennium Copyright Act of 1998.Passage of this bill shall extend the protections afforded citizens under the First Ten Amendments to the Constitution, to protect all citizens from any violation by any private person, group(s) of persons, private companies, or other entities operating within the confines of the continental United States or any geographic area under the control of the government of United States.SECTION 6 - Time at which the bill shall be in effectThis bill shall be in effect, ninety one (91) days after passage.END===========================================================================================

Alter_Fritz said...

Jim is funny playing a lawyer, Richard is laughable being a lawyer