Lawsuit Against the Recording Industry Association of America
November 17th, 2008 | by Tom Harper |Finally. After spending five years extorting millions of dollars from music listeners, the RIAA is being taken to court. The RIAA has been using the court system as their own personal bludgeon (with deafening silence from the same conservatives who are always blathering about “too much litigation” and “activist judges”), and now they’re about to get clubbed with their own weapon.
The recording industry has been using the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 as the legal basis for their shakedowns. And now a Harvard law professor, Charles Nesson, has filed suit saying that law is unconstitutional.
His reasoning is that this law allows a private organization — in this case the RIAA — to carry out enforcement of a criminal law. He also says the recording industry abuses the legal process by extorting huge out-of-court payments from their victims, under the threat of an even larger fine and/or prison sentence.
In my own non-expert un-lawyerly opinion, the RIAA has been violating the Equal Protection clause of the Constitution — unless you know of somebody who got a $500,000 fine for stealing a CD from Wal-Mart.
Charles Nesson is the founder of the Berkman Center for Internet and Society. He says his goal is to “turn the courts away from allowing themselves to be used like a low-grade collection agency.”
Nesson’s résumé is pretty impressive. He defended Daniel Ellsberg against the Nixon Administration in the Pentagon Papers case. He was also a consultant in a major case against chemical companies, which was portrayed in the movie “A Civil Action.”
His upcoming battle with the RIAA thugs might be his biggest challenge yet. Godspeed.
19 Responses to “Lawsuit Against the Recording Industry Association of America”
By steve on Nov 18, 2008 | Reply
Um… so the RIAA is bad because they take people to court over Title 17 of the US Code?
Songwriters have a right to earn off of their copyrights… if the CD is stolen from the store, technically the copyright was already paid by the retailer via the wholesaler and then via the record company. The royalties are collected by the Harry Fox Agency The mechanical right to the song on a CD is paid at a rate of 9 cents for an up to 5 minute song. This is paid as soon as the CD is created. The fee is paid by the record company to Harry Fox Agency who then pays the song writer. Therefore if a CD is stolen, technically, copyright is already paid along the way. It is the retailer that is out the 12 bucks for the CD.
When you get into online trading of songs, tell me where the songwriter paid for the creation of a “new mechanical file”? I think your Harvard boy is fucked in the head. And your non-expert opinion is wrong. Nobody may like the way the law works but it is there to protect the innocent songwriter who is there to make a buck. The right is entitled to the songwriter in Title 17 of the US Code which is derived from the 1st Amendment.
By Steve O on Nov 18, 2008 | Reply
Steve, you know what I heard when I read your comment?
“Blah, blah, blah”
The same thing I hear when I listen to my stolen copies of Metallica songs.
Does the RIAA give any of it’s settlements to the songwriters you peak of?
I find this case interesting because in fact, corporations in general are the de facto tax collectors of the US government so I wonder what impact a victory would have on other industries?
I’m typing drunk, I’ll go away now.
By steve on Nov 18, 2008 | Reply
Hey Steve O, I went to school for that shit so I know what I am talking about. Metallica and U2 don’t have to worry so much about their songs.
I may have misspoke here though. The Harry Fox Agency collects royalties for the songwriter. The RIAA is a trade organization that not only looks into illegal downloading but also piracy.
Let me ask you something, Steve O, do you want music and movies bought and sold illegally like in a flea market in Beijing? Because that is what your socialist, liberal ass voted for when it elected a Marxist as President.
By Steve O on Nov 18, 2008 | Reply
LOL!!! I for one welcome our new corporate overlords Steve. Next up will be the RIAA hiring Blackwater to kick in doors.
I’m proud to be a liberal;
The first modern liberal state was the United States of America, founded on the principle that “all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to insure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
Define socialism?
Go fish!
By Craig R. Harmon on Nov 18, 2008 | Reply
I don’t know about this one. Not a lawyer so my opinion don’t mean squat but I don’t buy either constitutional argument. Look. Creators of intellectual properties have the same right to profit from their creations that creators of physical properties have to profit from theirs. Theft is theft. Period. I have absolutely no pity on the college guy who has downloaded thousands of pirated songs, get’s caught, sued, loses the suit and has to pony up. He’s damn lucky he’s not carted away to prison like the low-life who breaks and enters into homes or steals radios from cars. Same-same in my book. I’ll leave the constitutional arguments to the lawyers and the judges but if I have to come down upon the side of either the thieves or those going after the thieves, I’m with those going after the thieves every time. If it’s a problem that the RIAA is a private industry rather than a governmental investigative agency, make the RIAA into a governmental investigative agency and make it legal/constitutional and nail the suckers right and proper.
By Craig R. Harmon on Nov 18, 2008 | Reply
By Tom Harper on Nov 18, 2008 | Reply
Craig:
400-pound Vinnie Ricelli says “hey, pay up or I break your legs!”
The recording industry and their $300-an-hour attorney tell a college student (or a housewife or a grandmother): “you’re looking at prison time plus a $500,000 fine, or you can skip the trial and pay us $100,000.”
Do you really want to rationalize a difference between those two scenarios?
By Craig R. Harmon on Nov 18, 2008 | Reply
Yes, Don’t steal the music. As they used to say, “If you can’t do the time, don’t do the crime.” Or better still, “The former is illegal, the latter is legal — the very distinction between extortion and not extortion.”
By Ryan on Nov 18, 2008 | Reply
@Craig:
)
“If you can’t do the time, don’t do the crime.”
sounds fair enough and I am inclined to agree with you but what about the hundreds of people falsely accused?
People who have never used computers hence have never used a p2p program hence didnt download even a WEBPAGE from google.
What about the people who didnt know how to secure their router and someone else downloaded off their account, should they pay 3-8k?
What about the RIAA suing printers because of false positives?
What about suing dead people, it should be pretty obvious why they couldnt download but if you didnt get it… they were dead at the time
Much more at http://www.eZee.se
By Craig R. Harmon on Nov 18, 2008 | Reply
Hard to say. In certain instances, adults are responsible for children’s behavior. If your child damages my property, the law may allow me to hold you legally responsible for his behavior. I don’t see how online behavior should be any different. As for identity theft, I don’t know what to say. It’s a real problem but we don’t just let criminals have a pass in general just because, in some instances, innocent people get caught up in the system by mistake. What we do is try our best to make sure we have the right person or rectify when we’ve made a mistake.
I’m just saying that there seems to be a culture of hate-on against an industry trying to protect its legal rights by using the legal system against thieves. This culture seems to identify with the thieves, as if, just because home computers and a modem and a piece of softwear makes theft easy and difficult to detect, it has suddenly become a basic human and constitutional right which the eeeeevuuuul industry moguls are infringing and unless we stop it, none of us will have any rights left.
Okay, I’m exaggerating…slightly…but that definitely seems to be the vibe I get from those who vilify the RIAA.
By steve on Nov 18, 2008 | Reply
Theft is theft Tom, and those college kids deserve it. Stealing music is stealing music no matter what form it is in. There is no justification for it, unless it is free.
Craig, I studied entertainment law in college… Title 17 of the US Code has all the copyright law. It was derived from the 1st Amendment.
You have 5 magic rights with copyright, reproduction, distribution, display, public performance and I think the last one is derivative works. (may be wrong but). Illegal downloading violates the first three. Two of those rights are held by record company and the last is held by the publishing company. Both are usually given up (in the simple case of a singer-songwriter) to those companies in exchange for royalties or administration fees. A derivative work is like a cover band, playing your song or a Weird Al Yankovic thing. Public performing royalties are collected by ASCAP and BMI. Mainly for radio, concert venues, etc and are paid to the publishing companies.
By Paul Watson on Nov 19, 2008 | Reply
steve and Craig,
Did you ever tape things off the radio when you were younger? If not, I’ll accept your position of moral superiority. Otherwise, you’re a criminal. Please turn yourself in and pay reparations.
By Chris Radulich on Nov 19, 2008 | Reply
Yes we probably have all done it. That doesn’t make it legal. This is just another system of America buying into a free lunch. Just like we do not want to pay taxes for government services, we don’t want to pay for the services of the artist and distributors.
PS
I believe taping a radio show or a song from it is legal as long as as it is not used for commercial use. Same applies for VCRs and DVRs.
By Craig R. Harmon on Nov 19, 2008 | Reply
Paul,
No but irrelevant. My position is correct even if I were a criminal.
By Paul Watson on Nov 19, 2008 | Reply
Craig,
Not irrelevant. If you are hypocritcially castigating people for stealing music when you had no problem stealing music yourself, I think that’s relevant to the argument. Unless you bel;ieve in “do as I say, not as I do”, of course. If you’re not willing to subject yourself to the same punishment you think other people should get, could you explain why?
If taping music or making mixtapes was acceptable, and let’s face it, it was, then downloading music or sharing music with friends is acceptable. Uploading music to public servers, well, there my argument falls down in a big way and I agree that that is a criminal offence, but otherwise, I think there’s a comparability between the other two.
By Craig R. Harmon on Nov 19, 2008 | Reply
Paul,
I was always given to understand that the strength of an argument rested not in the moral rectitude of the person delivering it but in the rightness or wrongness of the argument itself. I still believe that. The whole hypocrisy thing is a red herring, in my opinion. But then again, as I said, no, I didn’t. I never saw the sense in it.
By Craig R. Harmon on Nov 19, 2008 | Reply
Or rather, being a hypocrite is relevant to being a hypocrite but irrelevant to the validity of the argument presented. That’s what I mean to say. Rejecting a valid argument from a hypocrite makes no more sense than accepting an invalid argument from the most morally upright and consistent person on the planet. The argument is all.
By Paul Watson on Nov 19, 2008 | Reply
Craig,
And yet, if you’re a hypocrite about it, why should the law not apply to your situation? I presume you thought it was ok to tape things off the radio or make copies for friends like the rest of the world. How was that different, because I’m fairly sure people weren’t suing home-tapers back in the day?
Pointing out the hypocrasy is to make the hypocrite explain why it’s ok when they did it. I’m not buying into the “we have a right to free music” argument, I’m asking why home taping shouldn’t incur the same penalty. Or why a friend of mine who’s transferring his old records to mp3 shouldn’t be prosecuted.
By Craig R. Harmon on Nov 19, 2008 | Reply
Paul,
The law SHOULD apply to my situation. As I’ve said, twice now, no, I did not make illegal tapes of music for myself or for others so I was not guilty of that crime.
Now you’re talking about thinking it alright which I think is moving the goal-posts somewhat but okay, let’s talk about that.
A. Thinking ain’t a crime so it incurs no legal entanglements.
B. Enough time has past since those days that it is possible that, even had I thought it okay at the time, my thinking might have changed on the subject since that time. Changing one’s mind on a particular topic over time does not make one a hypocrite. It means one has rethought one’s position and concluded that one’s former position was wrong.
Now I haven’t kept up on the law so I don’t know what it says about archival copies of music one already owns in another form. It probably says that one must pay for the CD, the MP3, and the tape version separately if one wishes to listen to the same music in three different formats. Now, to me, this does seem overly picky. It seems to me that one pays for the music, not for the format. That is, what the law ought to say is, if you pay for, say, Pink Floyd’s The Wall album once, you’ve paid the recording company and the artists etc., for their artistry and industry and one ought to be able to a. make an archival copy against damage to one’s vinyl disk, b. make a tape copy to play in one’s car, c. make a CD-R copy to play on one’s computer, d. make mp3 copies of the tracks for one’s digital player. What one ought NOT be allowed to do is make copies for others. That is to say, once one has paid for the right to enjoy listening to music at one’s leisure, it oughtn’t matter what format one copies that music into as long as it is solely for one’s own personal pleasure. Friends should go buy their own album if they like the music.
Now, that’s what I think the law should be. It’s probably not what the law is. My argument is, as long as the law makes the sort of behavior we’re talking about in this post illegal, that sort of behavior is theft. If people think the law should be something other than what it is, there’s a political system for changing the law. People should engage in that, not engage in theft and then get all enraged that the recording industry insists on upholding the law.