Collaborative Lawyering
As one of the many components to this case, Professor Nesson was threatened with sanctions for our motion to compel Mr. Oppenheim’s deposition.
This is their opposition with sanctions.
Here is our first draft at a response.
(This is for district court, and unless Judge Gertner asks for a response, we won’t be filing anything until after the First Circuit rules on Internet in the courtroom.)
Thoughts on our response?
it is about more than just music. and maybe thats the problem. maybe it should be about less. both sides are throwing stones, neither side presents an empathic argument. are the RIAA representing the interests of the clients they serve, and are the students representing Joel’s interests effectively? there are real interests on both sides. and i’m not sure their voice rises above the rhetoric. what is the role of the court of public opinion when there is a real case in the court of “public opinion is not a factor?” good luck, guys. keep tweeting.
If you read the November 7th declaration and memo of law I submitted in opposition to these freaks’ frivolous motion for discovery sanctions against myself and my client in UMG v. Lindor, you’ll get some ideas.
If their request was in opposition papers rather than in a motion that in itself would appear to be improper. Also weren’t they required to use the safe harbor procedures of Fed. R. Civ. P. 11?
You may be interested in my take:
http://copyrightsandcampaigns.blogspot.com/2009/02/tenenbaum-counsel-asks-for-comment-on.html
The legal ethics experts at the Legal Ethics Forum have quite a few interesting opinions about this “collaborative lawyering” experiment:
http://www.legalethicsforum.com/blog/2009/02/will-you-comment-on-my-brief-if-you-do-are-you-my-lawyer-could-it-be-upl-problems-and-potential-of-w.html#comments
Matthew Oppenheim, in identifying himself as a ‘client’ or ‘client representative’ [sic], impliedly establishes a relationship with the attorney(s) representing the RIAA and it’s constituent members. If those attorney(s) were served with notice of a deposition naming their client, then couldn’t their failure to forward that information to their client be considered some form of misconduct? Granted, there is the matter of whether Mr. Oppenheim himself was served, which in turn may implicate the FRCP, but does that hold any weight when the man’s attorney is known and that attorney was served as his personal representative for purpose of the case before the court?
My brief on the constitutionality-of-statutory-damages issue, filed in SONY v. Cloud, is online at
http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_cloud_090429FSFAmicusBrief.pdf
I think it’s despicable what the music industry is doing! If I truly like an artist, I WILL pay to own the cd or go to the show. Artists need to engage their fans more, because we are their well being. Stop crying about record sales and go on tour! Music is more than just becoming a millionaire.
Also, why are these record companies spying on people?? Isn’t that a breach of personal privacy?!!?
judge should read supreme court decisions…
“standard that punitive damages should not be greater than other damages in a case. This decision, written by Justice Souter, folloows an earlier decision in Campbell v. State Farm that limited punitive damages to no more than 10 times other damages in the case”
song costs $1.00 so punitive $10.00 max = $11.00 x 30 songs = $33.00
I have to get this through somehow, if you receive it please confirm…
Joey did not cause any losses to the Copyright holders, except for the buying cost of the music.
Because, realistically speaking, if joey hadnt been sharing his songs, then people would have downladed them from someone else, and if they are not available in the US (because no one is sharing anymore, something that the RIAA would like to reach), then they would have downloaded them from somewhere else in the world. I reside in the Middle East, I share tons of music, and I have a friend who downloads a movie every week, and I dont think its gonna change soon.
I think you have a case against the Judiciary, if not you at least have a point, which is: Is this the United States of America, country of freedom and Democracy, where a random guy is fined 700 000 USD for causing 33$ of loss? If the rest of the world is a mess, it doesnt mean that it has to be the same in the States…
Besides, copyright law might have been written with the intent of stopping people from making money on other peoples work, but in this case no money is made… so that might not be their intended purpose.
I just read something in my local news website (the Netherlands) that Joel’s lawyer is going to appeal claiming only 21 dollars of damage to the record companies instead of 675.000. One of the arguments was that Joel was not the sole sharer of the music (if he put it in his Shared Folder), as anyone could get the same music from anywhere.
I had a remark on that particular note: I’m not sure about the details about the case, but I think he downloaded using P2P methods, a.k.a. torrents. This method relies on seeders and leechers, where the seeders collectively provide one item and the leechers download from all the seeders at the same time (and by putting the item in the Shared Folder, they become seeders as well). Perhaps this argument could be used, in that Joel was not the sole uploader of those music files when he put them in his Shared Folder, but in fact one of hundreds if not thousands sharing the same file, therefore he is responsible for a lot less than the jury found him guilty for, because he only uploaded a very small fraction of the music files himself, the rest was uploaded by the collectivity of the other seeders.
I am not 100% sure on the techniques on P2P and on the details on this case, but if my assumptions match, you could perhaps use this as a very important argument the next time in court.
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Nina, do NOT buy the CD. You would not be supporting the artists. You would be supporting the RIAA.
Pirate Yugi: Wait a moment, did you just violate a whole bunch of people’s privacy in one year?
RIAA Kaiba: Yeah, so?
Pirate Yugi: That’s against the rules, isn’t it?
RIAA Kaiba: Screw the rules, I have money!
rules = fourth amendment
Nina, do not confuse artists with labels. The labels are capitalistically fascist cartels. The artists are good people.
Very true Frank. Support the artists by going to concerts and buying merchandise. YGOTAS ftw.
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I forgot to include the following:
***
On how both popular and unpopular works should have fair use expanded according to one of more of the above:
If the work is popular, then it’s more likely to be a part of culture and more likely that the artist or copyright owner has already been rewarded handsomely. If the work is unpopular, it stands to gain the most from the increase in popularity file sharing brings.
I’m not a lawyer, but I was able to read a bit over their opposition filing linked above. I noticed that some actions were allegedly not taken on a timely basis.
It seems much could be gained in the future, from the perspective of “collaborative lawyering”, if we develop a network of those living across the US who are willing and able to file or take action around the country as the occasion warrants. For example, a request would be posted online, a candidate to helping deliver papers or whatever was the local task would be able to look up the link and quickly get an overview (from a trusted compiler of summaries) of what was at stake, and then decide if to help out.
BTW, I have 3 comments that as of this moment have been sitting “awaiting moderation” for a few days. Is anyone paying attention to the moderation queue? I think they got filtered out because I had hyperlinks inside of them, but they aren’t spam. I suppose I could repost.
google swedish-court-fines-file-sharer-about-300-sharing-44-songs
from techdirt (and copying/quoting is allowed):
>> While US courts have been awarding tens of thousands of dollars per song for the few people found guilty of unauthorized file sharing, many people have noted how utterly ridiculous those awards are, in comparison to any actual harm. It appears that a court over in Sweden appears to agree. A man who was charged with sharing 44 songs has been fined a much smaller amount, specifically, 2,000 kronor, or about $300. It actually comes out to just about $7 per song.
>> It will be interesting to see how the industry reacts to this one. After all, they’ve been going around praising the IPRED anti-piracy law in Sweden for the last two years now.
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