Recording Industry vs The People: University of Colorado to host discussion between EFF attorneys and RIAA lawyer on April 9th

Friday, April 04, 2008

University of Colorado to host discussion between EFF attorneys and RIAA lawyer on April 9th

On April 9th, the University of Colorado will be hosting a discussion featuring EFF attorneys Cindy Cohn and Fred von Lohmann and the RIAA's litigation attorney Richard L. Gabriel, entitled "The War on "Piracy": A Fight for Industry Survival or a Failed Approach?"

Refreshments will be served.

Details of event

[Ed. note: I hope Cindy and Fred aren't as polite as they usually are. Richard Gabriel has hurt a lot of people.]

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

11 comments:

Scott said...: "Richard Gabriel has hurt a lot of people."

True, but isn't even the most reprehensible client entitled to the best legal services money can buy?

This is America. You can get anybody to do anything if you pay them enough.; April 4, 2008 at 2:26:00 PM EDT
Anonymous said...: Maybe we can tie up Mr. Gabriel so much in lectures and public discussions that he doesn't have time to write motions and briefs any longer.

-DM; April 4, 2008 at 2:52:00 PM EDT
Jadeic said...: Given the inherent contradiction that any war is 'winnable' then certainly the War on "Piracy" stands no more chance than the War on "Terror".

I wonder if the recent media comments by this UK ISP here and the new man at EMI, Glen Merrill, here will surface during the discussions...

Dave; April 4, 2008 at 4:07:00 PM EDT
StephenH said...: Is there any way that this discussion could be recorded on Radio EFF Perhaps, or an MP3 posted to this blog. I would not mind hearing this.; April 4, 2008 at 7:32:00 PM EDT
Jadeic said...: I have already emailed UoC with this request. I'll let you know the response.

Dave; April 4, 2008 at 9:23:00 PM EDT
Scott said...: Jadeic, The Guardian got his name wrong! He's Douglas Merrill, and he's a fascinating choice for President of Digital Business at EMI Music. For one thing, the ex-Google exec has a string of business successes to his credit. And, he's a techie, not a lawyer, so he's probably more inclined to think strategically and have a less reductionist viewpoint. :); April 4, 2008 at 10:51:00 PM EDT
Jadeic said...: Here's the reply from Blake Reid at UoC as promised:

Hi Dave,
I am not sure about a podcast or transcript, but I do know that we will have a video posted here.

It may not be up until May or early June, so check back.

Thanks for your interest!

Take care,
Blake; April 5, 2008 at 12:49:00 PM EDT
raybeckerman said...: I don't think it's going to be the slugfest you folks are expecting.

It will probably be much more collegial than that.

Judging from the subject title, they'll chat about better ways for Mr. Gabriel's vermin clients to make more money...

and then have coffee and cake afterwards.; April 5, 2008 at 7:09:00 PM EDT
raybeckerman said...: And they're doing it in Mr. Gabriel's backyard, so he can have the auditorium packed.; April 5, 2008 at 7:10:00 PM EDT
Another Kevin said...: On the other hand, I hope that they are impeccably polite and win over the audience with their arguments. Being rude may give some temporary personal satisfaction, but scores no points in a debate.; April 5, 2008 at 8:27:00 PM EDT
Scott said...: The light bulb went on: Why is this debate happening at all; and so soon after the Fordham event?

If the RIAA was so cocksure that their legal theories were unambiguously correct, it would make no sense for them to be actively seeking public forums to debate their merits. My guess is that the RIAA lawyer-executives and HR&O are finally becoming aware of the backlash; that their brilliant tactics are causing their customers to hate the industry they are presumably defending. Pretty lousy strategy, if you ask me.

These little PR events aren't going to help the cartel , though. When Cary Sherman goes back to Congress to try to get the DMCA tweaked, he is going to be sailing right into a tsunami. You can't run a high profile campaign calculated to terrorize people without anticipating a backlash. Just ask the IRS. Their gusto for kneecapping taxpayers led to the Internal Revenue Service Restructuring
and Reform Act of 1998. Sherman would have to be a complete putz to think that he could succeed legislatively where the IRS failed.

This Fall, if every music consumer who was aware of the RIAA's campaign wrote a letter* to their Congressman and Senators expressing their disgust, it's unlikely that any DMCA revision would break in favor of the RIAA. Record company execs can make campaign contibutions, but they can't buy votes. Aware constituencies make elected officials tremble.

*(paper, snail mail for highest impact); April 6, 2008 at 1:38:00 AM EDT

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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