Williamson & Young, PC: Info & Audios
Questions about the RIAA/MPAA suits
(Williamson & Young)
These are big questions posited by a student writing a term paper in an email to me today. My partner in fighting crime (the RIAA and cohorts), Merl Ledford, Esq. of Visalia, California had recently written an email answer to an unrelated recent enquiry which I thought I'd include with Merl's permission. Sorry for typos and imperfect writing. I have to make a living and needed to speed this along. Hope its helpful and informative to the reader in any event. Not to be used as legal advice. Consult an attorney!
1. Why is the RIAA so hardcore about this stuff still? Aren't they considered antique in the modern music industry? –
A: RIAA is understandably hardcore about piracy. As a songwriter myself, I don’t want people using or exploiting my creative work without my permission or some form of compensation. However, the laws that protect us and the technologies that are available are being misused by the RIAA. Some forms of piracy are big enterprises and/or are international. But the RIAA is targeting way too many mistaken IP addresses and/or poor people and students who unwittingly use p2p sites and don’t know they are doing something illegal. The RIAA says they are suing for educational purposes, however, they are doing very little to really preclude downloading, very little to really educate folks, and really just leveraging a huge monopolistic sham litigation against tens of thousands of unsuspecting little guys. The targeting involves not just an informative warning or a small fine to cover what RIAA discovers has been downloaded, but opening pre-litigation settlements that start at $4000! You can imagine the working mom of a teenybopper who was seduced into using one of these p2p sites feels like when she gets a letter from the RIAA’s attorneys or her ISP telling her she is about to be sued in federal court. Its very common. Most people are paying. Check out this article about one of my cases – go to www.tucsonweekly.com and search in their archives under “RIAA” and you’ll find an article called “Thanks for Not Sharing.”
2. How often do trials actually happen? Do people commonly just settle out of court?
A: Only one of about 30,000 lawsuits or threatened lawsuits brought by the RIAA has gone to trial. It is about to tried again as it seems that their attorneys misrepresented the law to the judge resulting in the judge giving the jury a faulty instruction that if someone makes the song file available but it wasn’t even downloaded by anybody else that is equal to actual distribution and is, therefore, by itself an infringement of the copyright. People typically belly up and pay with credit card big bucks to www.p2plawsuit.com, an automated pay up site created by the RIAA.
3. What is the average fine for illegally downloading music?
A: They start their settlements at about $4,000 last time I looked. Doesn’t matter if its 3 songs or 50 that they have snagged. If the downloaded was for other commercial purposes, the RIAA has higher and different ways to deal with that on a case by case basis. Be on guard: new legislation that is being rushed through while the current corporate-favoring administration which will authorize the DOJ (Dept of Justice) to bring these civil lawsuits on behalf of the RIAA and MPAA. Nice huh? Your tax dollars will pay for the government to bring civil lawsuits on behalf of private corporations. There are also criminal sanctions for copyright infringement which will get stricter. But for now, the fines for infringement by everyday people are so high that it behooves them to go after this civil. That way you don’t have the right to remain silent, the right to a unanimous jury verdict, the right to be proven guilty by proof beyond a reasonable doubt, and the right to an attorney. If it was a criminal case, and you could not afford an attorney, one would be provided for you. In the civil arena, the government will only provide attorneys for the big RIAA and MPAA corps. Capitalism in its finest hour.
4. What can someone look forward to when they go to trial?
A: Tons of pretrial abuse and privacy invasion by the RIAA before trial, fork over your computer and personal history, probably an inability to get an attorney to represent you, years of library research and full time job representing yourself, and going into court facing an army of high priced attorneys furnished by the RIAA (an ostensible non profit organization, the members of which are the major recording labels) or, in the future, the US Government. Also, good chance anybody else living in your house, even minors, will get sued, too, or at least deposed.
5. What exactly can land you with a lawsuit from the RIAA?
A: Illegal downloading or having your ISP being mistakenly identified by their investigators. A recent study done by Univ of Washington students shows how frequently mistakes are being made in misidentifying IP addresses. A subpoena was sent by RIAA to a printer! An affidavit from the Univ of Arizona includes a disclaimer that their identification of ISPs is not reliable. You can find links to these documents at Ray Beckerman’s site.
6. Is every recording artist part of the RIAA?
A: No. I encourage you to buy non-RIAA music. A: A good site to start with is www.riaaradar.com – The RIAA hasn’t paid one penny of the millions it has extorted from people to any artists.
7. What would you recommend someone do if they find themselves on the receiving end of a lawsuit? – A: Research Ray Beckerman’s site and also the www.eff.org sites. Call a lawyer and pay for a one hour consultation before you do anything else. If you’re rich and want to fight it for the principle, that’d be great. Or if you’re REALLY innocent and can find a lawyer to take you case pro bono, that’d be great. Even if you’re found guilty of the infringements, there are also constitutional arguments making their way to the US Supremes about the excessive fines being imposed on these minor infractions.
Lots of people are very confused about copyright law. They hear that confusing news that using somebody else’s music is an infringement but when you go to myspace.com and myriad other sites you see everybody using commercial music without permission. At anytime, the RIAA or MPAA could clamp down on something like that and start sending out infringement extortion letters to the users. I told folks at the 2007 CMJ legal panel about Google v. Viacom to be careful, be very careful, about what they upload or download from YouTube. It’s like a massive entrapment situation.
I am going to use your list of questions and my answers at my website so I don’t have to repeat these. I get a lot of questions from people. I am also including below a recent email from my good friend and colleague extraordinaire, Merl Ledford III, Esq. (with Merl’s permission) to an enquiry from someone who was worried that they might have been reported to their ISP for downloading. I join in the disclaimer that no opinions expressed herein are to be relied upon as legal advice and that you should consult with an attorney about your specific problems, if any.
Kindest regards, KGW.
From Merl Ledford, Esq
“I don't see why someone would "report" you to your internet service provider for allegedly downloading music. What got them so concerned?
There may be some obligation on the part of the ISP under the DMCA to notify you that you would be in violation of the Act if you were to continue to download copyrighted music without paying for it. Why not just spend the 99¢ and download the tracks from iTunes? It's a no-brainer! If MediaSentry (RIAA's "snoop" arm) catches up with you and you have a bunch of songs in your "Shared" file and file sharing software that allows others to easily access those tracks, you'll end up in a lawsuit you can't defend with any degree of economic justification, even if you're richer than Bill Gates. Save yourself getting nailed with a potential lawsuit RIAA, get rid of any P2P software that isn't blocked from downloading copyrighted material (I think Limewire has that feature), don't store ANYTHING in your "shared" file (a sinkhole for misunderstanding and a potential source of back-door insertion of all kinds of malware), and respect people's copyrights.
I don't agree with RIAA's approach to copyright issues. The whole purpose of their abuse of the legal system is to cause a media splash that will make everybody leery of P2P services and legitimate use of P2P software. That's stupid and wrong. It constitutes malicious use of the legal system for purposes unrelated to the dispute resolution mechanism it was designed to provide in a civilized society.
Civilized people vote with their dollars. You can do that by avoiding Big Music artists and playing a lot of Trent Reznor and Radiohead instead (they're both taking a stand against upber-controlling media moguls). You can do it with iTunes, Amazon's download service, Blockbuster and Netflix movie rentals on-line, etc, avoiding the brick & mortar business model that Big Music uses to control content distribution and get people to pay more for content than its worth in what amounts to an assault on the economies of the world, an ecological disaster, and exploitation of third-world workers. See http://www.storyofstuff.com/. You can do it by telling your friends about websites like http://www.storyofstuff.com/ and books like "The Omnivore's Dilemma." Finally, you can do it by getting involved supporting issues of fair trade, sustainability, and local distribution even if it means just riding your bike to the farmer's market in your community to buy fresh produce every week, installing flow restrictors in your shower and a circulating pump in your hot water lines, supporting local artists (there are lots of great musicians in every community who deserve an audience; be there for them!), and buying downloadable music instead of insanely packaged/transported/and reproduced CDs and DVDs from some underpaid worker at an over-air-conditioned mall store.
The following is required by my insurance carrier: I cannot accept your representation at this point for lack of a formal engagement and in the absence of any litigation to defend. Nothing in this email shall be interpreted as my acceptance of responsibility for your file in any matter arising from any of the facts you shared with me. The opinions and suggestions expressed are limited to the facts that you shared with me and could be significantly different based on other facts, additional undisclosed facts, and/or circumstances not currently known to me whether or not you are aware of them. All engagements of my office for legal representation are by written fee agreement and based on a complete written statement of all facts known to you at the time of engagement sufficient for me to provide a probable cause opinion and analysis of the law that applies to each fact that your written statement discloses.
Good luck. Keep me posted if and when the case develops.
I join in the disclaimer that no opinions expressed herein are to be relied upon as legal advice and that you should consult with an attorney about your specific problems. KGW.
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Kathleen G. Williamson, J.D., Ph.D., LL.M.
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