Think Like a Lawyer
Not a lawyer? That’s okay. (We’re just students too!)
We still need your help.
If you were a lawyer in Joel’s defense, what would you want to know about each of these witnesses? What questions would you ask?
This is the WITNESS LIST:
- Howard Singer, Warner Music Group Corp.
- JoAn Cho, Universal Music, Inc.
- Jennifer Pariser, Sony BMG Music Entertainment
- Randy Cadenhead, Cox Communications
- Elizabeth Hardwick and Mark Weaver, MediaSentry
- Dr. Doug Jacobson, Iowa State University
- Cary Sherman, RIAA
- Brad Buckles, RIAA
- Mitch Glazer, RIAA
- Joel Tenenbaum
- Arthur Tenenbaum, Joel’s Father
- Abby Tenenbaum, Joel’s Sister
- Tova Tenenbaum, Joel’s Sister
- Samuel Volchenboum
- Jimmy Chappel
- Jonathan Velazquez
- Richard Barth
- Antonio Franco
If you were a lawyer in Joel’s defense, what would you want to know about each witness? What questions would you ask these witnesses?
Question to:
Howard Singer, Warner Music Group Corp.
JoAn Cho, Universal Music, Inc.
Jennifer Pariser, Sony BMG Music Entertainment
Randy Cadenhead, Cox Communications
Elizabeth Hardwick and Mark Weaver, MediaSentryCary Sherman, RIAA
Brad Buckles, RIAA
Mitch Glazer, RIAA
“Can you be reasonably certain that no one in your own immediate family and in your employ, respectively, has not knowingly, or even unwittingly, infringed a copyright that is owned by a member of your association? If not, why not?”
Elizabeth Hardwick and Mark Weaver of MediaSentry
What evidence exists that would tend to show that defendant and no one else was operating the computer at the time the files were placed on the computer. ‘Evidence’ for purpose of this question may include for exmaple eyewitness testimony; fingerprint analysis; video recordings; or photographs but may *not* include IP addresses, MAC addresses, or other forensic envidence derived by examination of any hard drive(s) or hard drive image(s)
Can you explain me why we have to pay a fee for all Cd´s (emty ones), all Cd and Dvd-burner, wich is called a coppy-fee????
Because we are not allowed to make any copy of any Cd….
Do i have to pay this fee, because i make a copy of my holiday pictures????
Question to:
Elizabeth Hardwick and Mark Weaver, MediaSentry
How does your system work? How can you be shure, that the defendants computer is downloading the whole file and not only pices or no other computer else? Is it possible to alter the recorded ip adress you are storing. How good is your evidence protection against altering the evidence?
To Joel, (playing the devils advocate:
Have you downloaded the files? And if, did you knew, that it is not legal to do?
If you knew it is not legal, why have you done so?
To, Cary Sherman, Brad Buckles, Mitch Glazer of the RIAA
In this case where Media Sentry was able to verify the existance of the copyrighted material in a shared directory and was able to successfully make a copy of the files, traceroute the IP. Can you please explain the full range of testing done to ensure common IP spoofing, MAC address cloning, or other methods of hiding your digital identity, including but not limited to cloning his cable modem was not being utilized by a malicious individual before you brought forth litigation against Joe, knowing full well that there would be substantial costs for him to obtain even the basic legal support as no formal criminal charges were pressed?
I would want the RIAA to prove their damages. I would challenge the precedent set by other judgment amounts. If the judges don’t stop being captive to the bureaucracy, these litigious, arbitrary, and draconian cases threaten the credibility of our legal system.
Dose MediaSentry did have a license for investigation at the time they charge this copyright violation against the suspect?
(PS I’m not relay a lawyer and my English is not very good.)
Question to: Elizabeth Hardwick and Mark Weaver, MediaSentry
What evidence exists that would tend to show that the files you found in the shared folder on the computer that you claim the Defendant has used at the time of the finding were downloaded by anyone else but you? In other words, can you prove that the Plaintiffs suffered any financial damage from the mere existence of the files in the shared folder?
I would like to know - maybe I should ask this Randy Cadenhead - if it is impossible that there was a man-in-the-middle attack.
Is it 100% sure that there wasn’t a technician from his ISP that made some changes within the stored IP/connection logs for every customer?
Lets say this technician from his provider is also sharing files - or maybe he also shares really evil content e.g. bestiality, underage pornography whatever - and this technician is using the same provider at home that he is working for.
So why shouldn’t he run a simple command (lets say it’s a MySQL like system) in this “connection database” at work and and stir up the IPs.
For example my provider uses the range 66.0.0.0. - 66.65.255.255 normally a customer will always be allocated to the same IP section and only the last two fields vary. E.g. 66.22.*.*
Now Joel’s allocated range is 66.20.*.* and the range of this “evil technician” is 66.33.*.*, so is it impossible that the technician is switching 66.20. with 66.33. just to secure his own internet activities and another guy gets much trouble instead?!
I hope that you understand what I mean with my “story”
PS: Sorry for my English - I’m living in Germany
I would ask any of the record company execs how many “promo” CDs are in their personal collections. How many promos do they have versus CDs they have actually paid full price for?
When i have a Series or a Movie (which is a dup in my language), and i would they have, but they is NOT to sale. I take him per Torrent or Emule, etc.
I think that´s not a crime, if you WILL it (Legal) buy, but you can´t them legal buy (in your Language).
(Sorry for my bad English, I wrote the Text again in German):
Wenn ich eine Serie oder einen Film (welcher schon in meiner Sprache Synchronisiert ist), den ich gerne haben würde, den es aber NICHT zu kaufen gibt. Also besorge ich ihn mir per Torrent oder Emule, etc.
Ich denke es ist kein Verbrechen, wenn du ihn (den Film) (Legal) kaufen Willst, aber ihn nicht Kaufen Kannst (in deiner Sprache)
Randy Cadenhead is the Privacy council for Cox Communications. So, he can’t answer the questions that I would really LIKE to see directed to a Cox employee, but he MIGHT have been instructed, so it’s worth a try…
* What mechanism is used to assign IP addresses to cable modems on the segment of the Cox network that Joel’s parents house is located in?
*What mechanism is used to ensure that traffic is not passed using an IP to someone OTHER than that modem?
* What is the error rate in Cox’s ip address logging between IP’s and modems for any particular given time?
* What is the typical latency between an IP being released, and it being re-assigned to another modem? How does the logging process operate?
* To what extent are you prepared to testify that the identification of Joel’s parent’s account with the IP address provided meets the standards required for this action?
* To the RIAA people, assuming that the complaint against Joel was the usual one, how did they “Identify an individual” responsible for the file sharing? How does the identification of an IP address extend to identifying an individual, what are the logical links in the steps between the IP address and the case against Joel. How did you identify HIM as distinct from anyone else who might have used his computer at some time?
* To the media sentry people, Your testimony in this and other cases seems to be at odds with itself. On the one hand you have stated that you log into the p2p network “just as any other user would” and on the other hand, you have stated that you have automated processes which scan for violations.
Which is it? What is the nature of the software used for scanning the p2p networks, what steps are taken, and what software is used to capture the “screen shots” and sample downloads used in the investigation? What evaluations have been done to that software to ensure that the chain of evidence is unbroken, and what internal controls does Media sentry have in that regard? What evaluations have been done to ensure that the identification of an IP address actually coorespondes to the source of the downloaded files? Who did that software evaluation? What methods did he or she use? How can you ensure that your identification of the individual sharing files meets the standard of evidence in this matter?
Regarding the “Make Available” standard.
What about public libraries? Any card holder can go to a library, browse from thousands of copyright-protected movies, music albums, and books, and copy them. In this vein, to what extent are owners of copyright-protected material responsible for safe and secure storage of these materials? Why should any owner of copyrighted materials, like Joel, be in any way responsible, or be required to incur a cost upon himself, to protect and safeguard the property of others? I think the plaintiff should have to show that Joel and others similarly charged willfully, intentionally, and actively made available these materials with the explicit intent of sharing with others. If the defendant can show that the materials were made available as an indirect or unintended consequence of another, legel action, there should be no liability. It would be quite absurd otherwise.
Questions: Can either the plaintiffs or their counsel safely say they have not “made available” copyrighted material as an unintended consequence of some other, *legal* actions? They claim some millions in damages for seven songs from Joel, or approximately one cd. Do they guard each of their cds in such a safe and secure storage solution as they would for some item worth in value what they are claiming as damages? Do they keep all their copyright-protected property in safety deposit boxes? If not, why do you expect Joel to?
in the USA, arn’t you innocent until proven guilty ?
because looking at request for admission no 30, they want YOU to prove the files did not acutally contain what their names suggest.
why dont THEY need to prove those files actually contained said music ? they charge you of something so THEY should have to prove it.
it could as well be 3 MB garbage saved as %songname%.mp3 !
I would want to know if any software was used in the course of the investigation: uploading, downloading, scanning, investigating, logging etc. by Joel, the RIAA, MediaSentry etc. and if so, may I please review the source code for any discrepancies? Maybe Joel didn’t intend to share. Maybe an IP was logged incorrectly. Maybe the files in question just had a filename that looked like a copyrighted song.
To:
# Howard Singer, Warner Music Group Corp.
# JoAn Cho, Universal Music, Inc.
# Jennifer Pariser, Sony BMG Music Entertainment
Q1: Can you name any other case where statutory damages have been awarded to a plaintiff at a rate at (or near) 750 times the ACTUAL loss suffered by the plaintiff?
Q2: Isn’t it true that civil damages are TYPICALLY calculated at a rate of no more than 10x the ACTUAL loss suffered by the plaintiff?
Q3: Isn’t it true that the defendant could have purchased legal copies of the music he is alleged to have downloaded after the act of downloading?
To Howard Singer, Warner Music,
Considering that a music files price is aprox. about 1$ (And this is only a guess), and the plaintiff wants about 150.000$ from the defendant, does that really mean that you think the file has been shared 150.000 times??
to media defender
how did you find the files on his computer?
how can you record ip address ? isn’t that a 4th amendment thing? are you sure the ip or mac address wasn’t spoofed?
do you offer music then intrap people?
To the Tenenbaums:
Do you have wireless access on the modem? Anyone can connect to an unsecured Wifi networks all over and do whatever they wish? No one has mentioned wireless here so far… Also secured wireless can easily be cracked as easily demonstrated on youtube. So basically, if you have wifi, anyone can be on using your ip that Cox accuses of being yours at the time of offense.
In response to Alex, these lawsuits aren’t for downloading content illegally, they are about SHARING copyrighted content. So the RIAA argues it doesn’t matter if Tenenbaum owns the cd’s for the content or not. Because the RIAA argues “sharing” = “distributing”. Which, in my opinion, is a poor argument. Simply “letting” someone copy a copyrighted file that I own, is not the same as selling copies of CD’s to people. Yet, judging by the accusations of the RIAA, they seem to think they are the same offense. I feel offended that our justice system allows such ludicrous arguments. I will go as far as to state that our justice system appears to lack sufficient knowledge of the internet, networks in general, software, and computers in general to properly evaluate these cases. Our system is supposed to be able to combat this by allowing defense to call expert witnesses with said knowledge, but that’s expensive, and defendants don’t usually have the deep pockets that the RIAA has.
To: Elizabeth Hardwick and Mark Weaver, MediaSentry
Before asking these 2 witnesses questions, I would get advice from network and internet security experts. Then question how MediaSentry, can be sure, without a doubt, that the “torrent user” they found sharing copyrighted content is actually Tenenbaum. I would ask them specifically how they know the IP address wasn’t spoofed, or how they know Tenenbaum’s ISP correctly identified the user of the IP address.
I would comb through their testimony to see if they invaded Tenenbaum’s privacy in trying to show that he was using the IP address in question. I don’t know if this would help his defense, but might show that the evidence was obtained through illegal, or at least invasive practices.
I find it very hard to believe that a company like MediaSentry can prove, without a doubt, that anyone is using any IP address at any point in time. There have to be 20 or more variables that could lead them to believe that:
A. the user sharing content has a different IP address than he actually does, OR
B. that the IP address belonged at that moment to someone other than it actually did. Or maybe wasn’t in use at all, and simply APPEARED to belong to Tenebaum according to his ISP.
First: Rick, Calvin and Jesse have the best statements and questions thus far.
Second: To clear up some things. As Jesse said, the lawsuit is for distributing the files, not for having them in his possession.
Third: Its my understanding that you are responsible for the use of your internet connection and its your responsibility to secure it.
The questions I would pose, in addition the the ones about IP spoofing, MAC spoofing, etc are thus:
What evidence does MediaSentry have that the files in question were uploaded from Joel’s computer to an unauthorized user. It is my understanding that the ‘trial’ downloads used by the RIAA and MediaSentry are not sufficient proof that file sharing has occured. Since they are authorized by the copyright-owners to possess the material, no crime has been comitted. if it had, they would also be to blame.
Follow up: How can that evidence be verified as accurate? And if it can’t, then why not? Can it be replicated?
Can you do a demonstration in the court?
Use a standard clean installed PC with setup similar to Joel’s (or with the most open settings), have a CD loaded in court (preferably by a MediaSentry person), then have at least one person in the court room access the files.
This would need a direct wireless connection if there is no wireless in court, but if there is, then by MediaSenty standards, the judge could be accused of file sharing through their actions and by their standards.
The files on the CD need only be CC licensed music to prove the point (don’t want to dig yourself deeper).
The question then is: how sure are they of the identity of any so-called file sharer? How can they be sure of Joel’s (or anyone’s) intent to “distribute” the files?
There are always three groups of people. The first group always pays for content, the second group never pays for the content, and the third group is somewhere in between. Regardless of the group, many people will tell others about an artist, movie, or program and rate what they thought about the particular content. Perhaps the media companies should be charged for all the free advertising that comes about with filesharing. Although media companies would like to say that they are losing money from such practices, some of the content surely would not have received the notoriety, or involved as many customers if the item had not first been spread around by filesharers.
To:
Howard Singer, Warner Music Group Corp.
JoAn Cho, Universal Music, Inc.
Jennifer Pariser, Sony BMG Music Entertainment
Cary Sherman, RIAA
Brad Buckles, RIAA
Mitch Glazer, RIAA
Has the File to be downloaded completely or is just a small part enough to cause a copyright infringement?
To:
Elizabeth Hardwick and Mark Weaver, MediaSentry
What evidence exists, that the shared files have been downloaded by other Users and how can you prove that they downloaded enough of the File. Or is it possible to be sued for a copyright infringement, that has not happened yet?
You should look to the qualifications of Dr Jacobsen. In depositions given in other cases he has admitted that he has almost none of the qualifications necessary to be recognised as an expert witness. Recordingindustryvsthepeople has more information and links to the deposition(s).
In short, he has no recognised training for the work, his investigative methods have never been reviewed and he has (ar at the time of the deposition had) no recognised qualifications. Further, he is affiliated with a company trying to flog software to prevent p2p filesharing…
How has the RIAA come to the conclusion that this pirating has damaged their business to the tune of $10,000? especially since songs now go for 99c on average online,
Has the RIAA monitored all incoming and outgoing P2P connections to determine that Joels 7 songs have been downloaded in excess of 10,000
times,
Did they breach any of the relevant wire tapping/telecommunications acts in the process of doing this
If $7 worth of anything was ’stolen’ (as the RIAA put it), would a normal company, under normal circumstances ask for a $10,000 penatly in the case of (I’m assuming here) a first time offender
**********
Also, Joel, only contributed PARTS to the files, bittorrent takes a little bit from everyone to make a complete file, This may possibly push him into the arena of Accesory to Piracy or what ever the charge is
Also, I’m not sure how it is in america, but how exactly are the record execs considered witness’s? they didnt see anything, anything they say can be considered hearsay at best…
And people, Joel’s not diputing the act of piracy here, so IP spoofing or not, he’s admitted it
I’d ask the RIAA why they dont refer these matters of theft to the police? Do they see it as there job to bring these pirates to justice… doesnt that make them vigilantes?
BTW, lawery people, if any of this helps feel free to drop me an email, most my mates are 4th yr lawyers students to >.<
I have a CD I’m not planing on listening to soon. If I donate it to the library so others can listen to it, will I get sued for $150,000 per song?
1st 2 general questions
Why are these 7 songs the only ones being sued for?
Where is Jive Records in this lawsuit regarding the Britney Spears videos?
Is it worth while to ask Alanis Morrisette to testify as one of her songs is listed in exibit b? I know in 2001 the case against Napster she could be found on record talking about how the industry was restricting creativity regarding the use of the internet to widen the distribution of music.
Howard Singer, Warner Music Group - As vice president of technology for WMG. You are well aware that there is no current Technical means to protect these works? Yet on several occasions 1 in particular being Limewire LLC, have asked about licensing. WMG along with others collectively under RIAA have denied to work with any of these P2P companies regarding licensing. Is this not you colluding in the continued piracy of the young students across our great nation?
Jennifer Pariser, Sony BMG Music Entertainment - Have you actaully made this statement “It has caused billions of dollars in harm in the past four or five years.”? If so, does your statement take into account the amount of music that has been sold due to pirates sampling 1st and buying later? If you disagree with the premise of sample 1st and buy later having any affect on your figures how do you account for NIN latest album’s success?
Well those are the questions for now I will think about what questions I would ask the rest of the list.
I’m not sure where you are going with your defense. I haven’t read the legal documents, but it appears that you’re challenging the constitutionality of the maximum penalties potentially applicable to Joel. I know nothing of the jurisprudence in this area….but I suspect Joel will not escape liability for copyright infringement notwithstanding the potential unconstitutionality of the statute you’re concerned with.
If they are claiming a $10,000 loss on these 7 songs, in my opinion a clearly inflated number, how inflated is the number for overall losses to the company, claimed to be in the billions? I believe most of their losses to be a direct result of their disregard for their customers by bringing up frivolous lawsuits such as this. This involves both the losses incurred by not making a sale which may otherwise occurred if the customer was satisfied with the product, and the money that goes to organizations such as the MPAA, RIAA, and IPFI. Also, if I am not mistaken, there was no actual selling or reselling of any media product. This means no profit was made. These medium are the only product that has legal actions involved in transaction, most of the other products, such as vehicles, houses, even soap (if you wanted) can be resold. As a sidenote: As a software developer, I have personally been burned when buying crap software products, if people were able to get stuff to try out before they buy, (which this buying happens more often than you may think), the result would be better products which do what they promise more often. We are losing the “customer is usually right” attidude. it is now more of a “screw the customer” which makes them jaded, and causes them to increase the amount of stuff they get for free, and never pay for it.
I for one have completely stopped buying music since the file sharing lawsuits have begun. I cannot support an industry which eyes most of their customers as criminals.
Has the recording industry done any marketing research to evaluate the negative impact this legal campaign of theirs may have had on their bottom line? Is it possible that not only are their projected losses due to piracy inflated, but that any real loss encountered are the direct result of attacks against the very public which buys their work?
First of all - you guys are doing a great job. I’m confident about the outcome already.
I realise that with the current state of copyright law, it’s difficult to focus beyond process and constitutional points. After all, it’s more important to win at the moment than it is to win for the right reasons.
The right reasons being mainly that the fact that lending an audio CD (copyrighted material) to a friend is not illegal from any point of view. Why then is sharing a digital copy of the same copyrighted material illegal? Is it our fault that the cost of copying is effectively 0? Is it our fault that the industry has failed to take advantage of this fact? If the industry has failed to:
a) reduce the cost of copying and distribution of copyrighted material to 0, and,
b) pass on that reduction of cost to the consumer,
whose fault is it?
Is the industry now going to insist that those who have not paid to listen to a live gig have to wear ear-plugs when within ear-shot of the gig or face imprisonment for life for having listened to music without paying for it?
tit for tat, what would be interesting would be to somehow compel the computers and emails of the plaintiffs to establish or verify the motive and merit behind pursuing joel’s case.
There’s no clear logical reason behind the RIAA’s pursuit of this case to the degree that is has. If it’s to raise awareness of the legal consequences of downloading music, then that’s already been accomplished by the thousands of cases already filed and reported in the news of people having to give up their life savings to settle.
if it’s to show that it’s cheaper to settle than to fight, then that could’ve been accomplished by accepting Joel’s $5000 settlement offer (or countering with a trivial yet symbolic bit more), which is more than the initial settlement amount. Accepting $5000 instead of the $10500 that was demanded represents a smaller loss than seeking a million dollar judgement against a person who can’t pay it. Especially, as per the points above, they could’ve achieved their purposes for much cheaper and in a more expedient manner. The judge was right in ordering the parties into settlement.
So what’s the motive behind spending millions to mount a legal attack where regardless of outcome, none of the publicly stated goals will have been accomplished? Is it principal/arrogance/fear/etc? Establishing an accurate profile of those who have interests in common with the recording industry would be useful, if not just interesting.
I think the University of Washington’s DMCA “project” is worth looking at: http://dmca.cs.washington.edu/
They were able to generate “hundreds of real DMCA takedown notices” whilst framing network printers and other devices which could not possibly have downloaded the alleged content.
I know of students at my university who have been forced to settle with the RIAA because they had no understanding of the law and getting into a fight with the 800lb. gorilla (RIAA) was not an option.
I wish the best to the HLS team in representing Tenenbaum and the many others hurt by the RIAA/MPAA crusade.
Just a general thought about distributing stuff with torrents..
In torrent networks the chance of obtaining entire file from just one source is extremely low. As all uploaders & downloaders share the load of distributing, people get parts of the file from different sources. Therefor we can be pretty sure there is not a single person in the world who obtained a copyrighted music file from Joel. Instead they received some small parts of the music file, not the full usable file. Those pieces distributed by Joel alone can not be used to listen the song, so they can not be considered as copyrighted music files. Well then how can there even be a copyright violation case against Joel in person?
I’d ask Warner/Universal/Sony/Cox to describe their financial structure in detail:
- What are their direct costs for selling electronic copies of music from their catalogs that are not currently in production?
- What is the wholesale price Apple and other online retailers pay them?
- What are their direct costs to produce new music (not including debt servicing, RIAA membership, etc.)?
- What are their duplication costs to produce new music CD’s once recording’s complete? What are their costs to duplicate the same recording electronically?
Since the “making available” argument has been deflated (details on Ray Beckerman’s site I think) then records of actual downloads would have to be detailed, wouldn’t they?
Then to be fair, I would ask the plaintiff to detail the destinations of the downloaded songs that led to the infringement, including a breakdown of which countries the alleged recipients lived in, a statement on whether or not they could be classed as recipients of the material under the legal codes of the countries involved, or whether that segment of download recipients that lived across national borders were included in the suit were indeed subject to the laws the plaintiff contend were contravened.
That should keep them busy for a bit.
I notice used CD and DVD stores across the country. These stores are selling, not sharing the media you try to control. What exactly makes it legal to sell a CD but illegal to share the very same CD with a friend or a member of a website?
I believe when I purchase something it is mine to do as I wish. I guess the next thing will be that I cannot loan my car to a friend, allow someone to use my laptop or loan a book to a student.
To the RIAA:
Have you ever seen a grown man naked?
Would you like to?
How exactly is scratching random 1s and 0s onto a metal platter stealing? The original file is still there, I have not prevented the company from selling the same file to someone else. So what have I done wrong? Also while there Harvard Law people here, I would just like to say that Terms of Service are BS and should be against the law themselves. Half the time you can’t even read it before being forced to accept them and honestly who reads them anyway? They need to be 3 lines or less.
That is all.
What evidence exists that would tend to show that the defendant was in control of the internet connect at the time the allegged action occured, is it not possible that a wireless network with an unauthorized guest could have been responsible for the allegged infringment ?
What evidence do do you have that Joel (or someone else) was of sane mine and was concious aware they infringed on any laws at the time/s of these events
Question to all:
In what manner are the proceeds from all the collected fines distributed?
Are the fines used to fund further discovery investigations? Are these future undefined investigations meant find proof of copyright infractions without known cause? (Self funding this enterprise through excessive fines). Is it becoming a profitable business line?
Do the artists receive any of the collected monies prorated based upon the forensics of the music the RIAA defines as downloaded to the computer in question? What percentage or amount do they receive?
Would it be possible to hire a hacker, then have he/she demonstrate how he/she could spoof his/her ip and mac and/or hack into mediasentry and/or cox and change their log files?
Joel is accused of distributing many tiny pieces of the file to many different users. Agreed?
In effect, what is at play here are digital sampling statutes. Joel distributed less than 3 seconds of the songs in each torrent chunk, so he is not liable.
http://en.wikipedia.org/wiki/Sampling_(music)
RIAA = weenies
Isn’t it true that the recording industry has lost more money in relation to CD burning then it has ever lost to Downloading and Sharing music over the internet? Why has the RIAA not gone after people who own burned CD’s and the companies who facilitate their creation?
Tracing a person’s IP address does not violate the right to privacy. Any organization should be able to spy on the public.
It is not oppression.
To the RIAA:
What songs were downloaded, and would the artists who actually wrote the song approve of taking everything Joel and his family own to the point where they might have to file bankruptcy? While I understand that what Joel did may (by some twisted form of logic) be considered theft, what does destroying a family’s life over 7 shared songs get you?
Being a musician, I would ask the RIAA team…
“Who are you truly protecting? Your paycheck or the artists you represent?”
While I was working as a Techie on a college campus, we had someone come in and explain the process of the litigation. Mind you, it sounded quite arbitrary at that time. Who gets sued v. who gets a warning, etc. The part that really bothered me (besides the part of it being completely sketchy of detecting who is sharing songs) How much of the settlement for “damages” actually goes to the artists that “lost money” because of the illegal sharing? From what I understood, the amount was…. $0.
Is there evidence that the defendant made copies available to the public at large? Is there evidence that someone downloaded unauthorized copies from him? Keep in mind that Mediasentry is authorized to act on behalf of the copyright holders, and so, may impact the ‘authorized-ness’ of the downloads. Is there evidence that the files he provided were actually infringing, as opposed to intentionally misnamed copies of classical music, or even junk data? Is Mediasentry a properly licensed investigative firm?
Forgot one!
Can the evidence be verified as accurate, and not fabricated by the plaintiff, by a reputable neutral party?
Did anyone think of actually starting a defamation law suite or a hate crime law suite?
My knowledge of the amreican laws is not that profound, but I know for a fact that in Germany for example there is something called Volksverhetzung (hatecrime). The RIAA and IFPI are both trying to make it seem that filesharing is illegal in general. By doing so they actually are making a hate crime. This crime is defined as defaming part of the population. It goes on that in case that it goes against the culture of a certain part of the population it is as well a hate crime. the full legal text can be found here: http://bundesrecht.juris.de/stgb/BJNR001270871BJNE028206377.html
Now my argument is that for example the Linux user have been sharing their distribution since years over P2P networks, so sharing files ergo being file sharers. Going with the RIAA and IFPI who are trying to ban filesharing in general they would be doing something illegal. Which leads to the conclusion that they are defaming a part of the population so being guilty of Volksverhetzung. A nice English article can be found under : http://en.wikipedia.org/wiki/Volksverhetzung
For questions that should be asked to the wideness’s I would agree with Michael. It will be rather hard for them to prove that he shared the files. First of to prove that they would have to have downloaded it from Joel completely and kept a copy as prove. Furthermore the mere making available is not enough, as was established by several other judgments.
Best of luck
The Supporter
Do they have accurate usage records for Joel’s computer? and a record of who has access to it?
Are fines equaly ditributed to the affected artists? Are the artists aware where the money has come from?
[...] led by Prof. Nesson, this “Lawyering 2.0″ has produced interesting results, with people suggesting questions we could ask the witnesses. Hopefully, we will be able to get the public more involved with some [...]
How does downloading and uploading materials that were distributed or released by the holders infringed copyright law? And does the CopyRight Laws means that materials must be distributed by the RIAA only and they must buy it? Are the artists required by law to grant a permission to everyone who must ask for it and are they required to be paid for every music per download under the DMCA?
Asked of any RIAA witness:
1) May I, without attracting the wrath of your organization, hand the copy I have bought of my favorite CD to my friend sitting next to me at the defense table for him to enjoy for the weekend? (Yes.)
2) May I, without incurring multi-million dollar fines, make a backup copy of the CD I just bought, in case my friend loses the copy I’m about to give him? (Yes.)
3) May I, safe from subpoena and threats of litigation, hand that backup copy to another friend if my first friend loses the one I loaned him? (Yes.)
4) Must I not, then, take on good faith my first friend’s assertion that he lost the CD? (Perhaps/I suppose/What are you getting at?)
5) If my friend in fact did not lose the CD, am I acting in bad faith when I listen to my backup copy and/or loan it to a second friend? (No.)
5a) Is my second friend, playing that CD, acting in bad faith? (No.)
6) What is the fundamental difference between loaning the original CD and loaning the backup CD? (None, except that the first and the second must not be “active” simultaneously.)
7) Define “active”.
Regardless of the reply to question #7 there’s always a perfectly-legal corner case. Effectively, the shared MP3 is a backup copy of the song, the original copy on CD having been long since forgotten in someone’s dusty attic. A significant portion of the filesharing community owns a CD of the song. The only reasonable answer to question #7 is that no more than one person can play the CD at the same time. Can MediaSentry prove that more copies were being *played* simultaneously than the number of legitimate licenses owned by the filesharing community? If not, the P2P network is effectively a very fast, free-to-use version of NetFlix, distributing well-liked CD’s amongst friends for their listening enjoyment.
Slightly-alternate argument: There is no difference between loaning someone an MP3 and loaning someone a physical CD because there’s no such thing as “moving” a file in the computer world–only copy and delete. Thus, everyone’s taking it on good faith that the file they’re receiving is being deleted, or at least never again accessed, after being sent.
Last suggested argument: Can the prosecution prove, based on the preponderance of evidence, that the accused never held a license to the songs, the sharing of which he is being accused? Can the prosecution prove that the accused accessed the file for his personal use after having shared it with others; i.e., that’s he’s not just offering a convenient backup service?
Let me know what you think; IANAL.
Of the RIAA / Mediasentry lot:
Why, when it is possible for a printer to receive a take down notice, do you think your evidence is even remotely reliable?
For more:
http://dmca.cs.washington.edu/
Why, in the deposition is it implied that use of Kazaa = infringement?
JT may well have been a Kazaa user, but I would question the validity of relying on IP address evidence. Expecially for a million dollars.
MediaSentry:
Have you any direct interest in finding the defendant guilty? Do you receive a certain amount of money from your Clients from every people that shares files that you discover?
If so, it’s clear that MediaSentry is not a trustwhorthy witness, because they could even make up false evidence to get money.
Explain, to me, and the court how a Private Corporation has any lawful search and seizure rights over a private citizen of the United States of America? And if so, is that not the very definition of fascism? The merger of Corporate interests and the state? If so, I request that this case be thrown out, and we move to start counter suit of 24 Million. Or wait, maybe the execs of these labels all blew it on coke.
The claims in the original “Complaint against Joel Tenenbaum” accuses Joel of using the online system (Kazaa) “to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others.”
Let’s look at each claim individually:
1) download: The MediaSentry screen caps show what Joel is allegedly offering for upload, for others to download (”making available”). This does not prove that he downloaded the songs originally. If the plaintiff has evidence Joel downloaded the songs originally, I didn’t see it referenced anywhere on this site.
Questions for MediaSentry: “How does your evidence support the claim that Joel downloaded?”
2) distribute: the owner of the Kazaa account (Joel or otherwise) did not violate any of the exclusive rights in § 106 by uploading the songs to MediaSentry. Paragraph (3) protects the right of the copyright owner “to distribute copies…of the copyrighted work to the public.” According to Title 17, “’Copies’ are material objects … in which a work is fixed….” Uploading a file online does not distribute a material object, but rather “distributes” electronic pulses (analogous to sound waves, which we don’t consider “copies”). Saying uploading is protected distribution (by the legal definition) is like saying that playing a song for the public to hear (and possibly record) is distribution. It’s not. It might violate performance rights, but they didn’t include that in the complaint.
Question for expert witness: “Did the Kazaa account owner distribute a material object copy?”
Also, as you should be aware, the law (and the complaint) specifies distribution “to the public” is protected. MediaSentry, as an authorized agent, should not be included in “the public.”
Question for MediaSentry: “Were you operating as an authorized agent of the plaintiffs?”
3) make available: I’m sure you’re all caught up on this point of debate, but it’s not part of copyright law, and even the judge in the Jammie Thomas case thinks his jury instruction was not correct.
There you go, now you can exonerate poor Joel. Hopefully you can convince the judge that the sought-after damages are excessive as well…
[...] Think Like a Lawyer [...]
What evidence is there that the files that were found were actual copies of a copyrighted work and not spoof files, fake files, or wrongly named.
How can one verify the clocks are in sync? Not just the time, also the time zone offset.
In these cases, time accuracy becomes a mutli-thousand dollar factor.
MediaSentry’s mechanism for telling time as well as the ISP mechanism for keeping time. Verifiability accurate time keeping is crucially critical with dynamically assigned IP addresses and should be part of defense discovery.
> What evidence is there that the files that were found were actual copies of a copyrighted work and not spoof files, fake files, or wrongly named.
You should have read the leaked MediaDefender emails. They mark all the spoof files by one of a few means. At the time of the leak (and I assume they’ve changed now?), they made sure the hash was divisible by 137 (I think), or in other cases used file sizes that were evenly divisible by some number (in the case of multi-file compilations, only the last file counted).
I heard once that you should never ask a witness a question you don’t already know the answer to. This is probably one of them.
As for digital “evidence”, I know they can get it in under the “business records” exemption to hearsay, but you should really attack the chain of custody as well. Lots of unknown people have access to this stuff. Printers have gotten DMCA takedown notices. There’s plenty of unreliability in the system and it would be good to point out the infamous cases of it to a judge so they know you’re not just talking about technical, theoretical, pie-in-the-sky maybes, but stuff that has actually happened.
You’re probably going to draw a jury of technical illiterates, like that one guy who had never used the internet before. They don’t know anything about all the crap the RIAA has pulled. You really need to get that in front of them somehow. Anything that proves that they *have previously & actually* litigated amiss is more valuable than all the technical arguments that jurors won’t understand a word of.
That’s why I’d rather hang my argument on the printer. “Ladies and gentlemen of the jury, people tracing IPs with a process just like theirs accused a PRINTER of sharing copyrighted files. An ordinary laser printer that did not, and was in fact incapable of downloading anything of the sort. Are we really going to believe that their case against my client is as airtight as their ‘experts’ claim when they sue anyone and everyone at random, from dead people to grandmothers who don’t even own a computer?”
You’ll get MUCH further if you can deliver a line like the above than if you have to argue about how the uncalibrated clocks at the ISP and MediaSentry leave a two minute gap during which the DHCP lease might have been assigned to someone else. Yes, something like that would be a compelling technical reason for doubt.
But your job is to convince a technically illiterate jury, so you really ought to go with the, “These guys have gone after people with no computer, the dead and PRINTERS, so how can you trust them!?” defense, IMHO.
“But your job is to convince a technically illiterate jury, so you really ought to go with the, “These guys have gone after people with no computer, the dead and PRINTERS, so how can you trust them!?” defense, IMHO.”
I second that.
And then have David Pogue the tech column guy from the NYTimes explain it all to the jury with one or two of his parody songs.
If he would do a few more verses to his YMC– sorry, RIAA song mentioning the latest abhorrent actions of them, even the most technophobe steelworker juror would “get it” I think.
http://www.youtube.com/watch?v=uobhjmv0u5s
Quote:
David Pogue- R.I.A.A.
[...]
Know what?
They will sue your butt clean!
They say “So what?
If you’re only thirteen!”
And you know what?
They were equally mean
to an eightyyy year old grandmaaa
[...]
P.S.
David Pogue- R.I.A.A.
[...]
Know what?
They will sue your butt clean!
They say “So what?
If you’re only thirteen”
And you know what?
They were equally mean
to an eightyyy year old grandmaaa
[...]
I would ask anyone directly connected to the RIAA or record industry:
1. Have you ever in your lifetime made a cassette recording of a song (or songs) off the radio? If so, did you ever give a copy to anyone else? Did you ever lend anyone a record or CD so they could make a recording?
2. Are the specific songs Joel downloaded available on Amazon as an mp3 download? If so, as Amazon mp3 downloads are around a dollar a song, Joel should pay approximately $7.00 to settle the case.
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
question to: JOAN CHO if somebody MANUFACTURED AND DITRIBUITED a cd from UNIVERSAL MUSIC and sell inside the united state and major store also on line without license,contrat, wath actions UNIVERSAL MUSIC GROUP is took against the person or company doing the copyright infringment,trade mark,intelectual property, everybody want’s to know your anwser JOAN CHO
TO JOAN CHO why universal music group have to lawsuit to Ms LENZ about musical video WOW is amazing WOW sued for $150,000 dollar OMG wath about if your COMPANY get a sued for the same jejeejejejeeje is not fair wath UNIVERSAL MUSIC using the power or intimitad people
I would ask anyone that is a part of the RIAA or part of a particular record company:
What is wrong with you?
When/if the RIAA provides estimates for revenues generated by their copyrights be sure for digital they don’t calc with 99c/song since the studios and artists get a lot less and for physical cd’s don’t let them calc at US prices since outside the developed world prices are lower.
[...] Recording Industry thinks. These are two questions (along with a contributor and commentor Alex at Joel Fights Back) which I hope are asked of the relevant individuals in the recording industry: # Howard Singer, [...]
Howard Singer, Warner Music Group Corp.
Mark Knopfler, claims that he got the song “Money For Nothing” while listening to a couple of guys in a hardware warehouse store. Yet no effort was made to track these individuals down and compensate them for a song that has sold well over 20 million records.
Howard Singer, is that because individuals in your corporation actually know who the person is that wrote the song “Money For Nothing.?” Is it true that your corporation is making sure that the man that wrote the song “Money For Nothing” never gets recognized for any of the songs he has written?
The song “Money For Nothing” has gone on to make millions of dollars in profits for your corporation Howard Singer. Yet the man, who actually wrote that song for Mark Knopfler, has yet to see anything positive come from his work.
Howard Singer, why is your corporation making millions of dollars off of this one man’s life, while at the same time denying him the right to make money off of his life?
Is it true Howard Singer that a Warner Brothers employee asked this man to not only write a song, and come up with a video for the band Dire Straits? Just like he had done for everyone else the night of February 17, 1984, for nothing? But too also add the band Dire Straits into the lineup of his concert, Live Aid?
Howard Singer, is it true that the very same night that this man wrote the song “Money For Nothing” for Dire Straits, that he was also putting together a concert that would save starving people in Africa?
Howard Singer was this man the brains, as well as the driving force behind making the concert Live Aid a reality? And is it true that for the concert Live Aid, that Bob Geldof was nothing more than a celebrity spokesperson that ended up taking all of the credit?
Howard Singer is it true that all Bob Geldof wanted was for this man to write a song to save Geldof’s career? Howard Singer did this man write a song that saved Africans from dying of starvation instead?
Howard Singer, how can you and your corporation in good conscience sue anyone for downloading songs. While at the same time you and your corporation are making millions of dollars off of one man’s life, and making sure that he will never be able to capitalize off of his own life?
You and your corporation Mr. Singer, are violating antitrust laws, and participating in the psychological torture of a human being. In order to cover up the fact that this man has written songs for artist’s, songs that have been released on your corporations record labels.
Howard Singer, you and your corporation have robbed this man of the last 27 years of his life. No one can put a price tag on that.
To every corporate member of this lawsuit:
Have you ever made a mix tape for someone? Has anyone ever made a mixtape for you? (be it CD or actual cassette tape).
Also of interest- why do independent record labels offer free downloads of songs as promos for albums? These are labels who make a fraction of a fraction of what the corporate conglomerates make in music sales. Bands signed to these labels make next to nothing as well, but view these free files as advertisement for their work. Why is it that bands and labels that have next to nothing (monetary wise) are willing to share their music, but companies that make billions (and release thousands upon thousands of albums a year that span multiple genres) are less than willing to bleed a little for protective consumers. Is it because corporate record labels know that 99% of the music they release is manufactured junk to begin with?
1) What’s the difference between a listener to a Pirate Radio Station vs someone listening to music from a file-sharing site? I don’t think a listener can be charged, right?
2) Can the companies prove they lost revenue due to this listening? Or could it be proved that by allowing people to listen to record music samples, that it increases their over all income over time (should include all forms of revenue, t0-shirt sales, tickets, advertising revenue from TV shows people may watch), and so on? Unlike say avoidng a ticket on a train, for example, no-one was deprived of use. The loss of revenue must be therefor proven, no?
I’d like to ask the record company people about their opinion of the drug use and violence that their artists are so blatantly involved in. Do they condemn it? Are they part of the conspiracy to supply narcotics to their artists? Do they drug test those artists suspected of drug use? Have they ever been investigated by the ATF or the DEA?
How can they be sure that record industry money doesn’t go to fund this criminal activity? Would Joel’s fine just end up supporting this criminal activity?
Question: Have you ever had a virus?
To: anyone
I’d ask them all if they how much they spend, on average, each month on music purchases and secondly, how much music do they get for free each month (and quantify in terms of $).
I’d guess the music exec’s get most of their stuff for free, a perk of the job.
It seems to me that you may be missing a very important defense. This has nothing to do with whether or not Joel pirated music or not. The fact is, his sharing of music does not represent a crime. In fact, this may be completely legal. Sharing a copyrighted work potentially represents fair use. This is determined by the person downloading the music. If they are simply downloading a CD which was chewed up by their dog, this represents fair use and is a violation of the law. If the person downloading the music is pirating a CD they don’t own, this represents theft (under present law.) As such, Joel is only liable for the music that he pirated (or what the music industry can prove that he pirated) at a rate of .99 cents per track or 9.99 per CD in accordance with current pricing. If he already owns any of those CDs, then he is not in violation of the law by downloading them. Since it cannot be determined how many copies were downloaded or even if they were downloaded illegally, then there is not a even a proponderance of evidence to show that a crime was committed. Furthermore, should a theft have occured, it was not a crime committed by joel, but by the downloader. Joel should only be responsible for what he downloaded. If the recording industry wants to recoup their losses, they need to go after the downloaders, not the sharers. Crucifying joel and jammie in order to make a point is unfair, unethical, unconstitutional, and illegal.
This is not a direct question, as many of the above have already formulated most of the pertinent questions. However, I would suggest taking a very close look at many of the high profile cases of hackers in contemporary American history. Take the case of Kevin Mitnick if you want to pick an example (or Prometheus and the Grateful Dead connection). The majority of these hackers needed to be physically placed in front of their computers at the time an offence was being committed using incontrevertible evidence (usually read, the FBI needed to bust down your door while you were doing it) in order to be convicted. I really don’t see why the same principles shouldn’t be applied in this case. At the time, there were a handful of people even capable of using complex hacking techniques, and with the skills necessary, to perform these hacks. Still the authorities needed such direct evidence. Perhaps it is different in a civil suit, I am not familiar. However, given that the ability and know-how to download music, and offer it for other people to download, is quite common these days, I would imagine that the criterion and evidence would need to be more stringent, and certainly not more lax.
I would avoid arguing in the technical direction to create doubts that maybe another person downloaded the songs.
It’s not the aim to try to explain, that Joel didn’t violate a law.
The aim is, to show that
1) there is big difference between stealing a physical sound storage medium and making an exact copy! of the original, smometing in this direction
2) to convince the jurors that sharing culture (music) is essential in the human being from the beginning of existance and that the law has to be adapted to the new human culture
hope, my suggestions could give ideas or help…
A case in Michigan was thrown out because Mediasentry was operating illegally (a court a ruled they could no longer investigate because they lacked a private investigator’s license)
If they can rummage through Joel’s personal life in depositions, can’t you throw that in their face?
Previous submission cut off after the link…
I would ask Jennifer Pariser (Sony BMG) whether it is a copyright violation to create backup copies of music you already own on CD. When she gives her smart aleck reply, then ask her whether it’s actionable. Then make her explain why not.
I’d also ask Sony if they ever paid the Bay City Rollers the $60 (or $80) million that Sony is holding because they can’t find the original contract. BCR was paid a $250,000 advance in the 70s, sold 70 million albums and never got a second check.
Then ask them how the guys in the band are doing.
All of these thing reflect upon their credibility.
Ask the record companies this:
What are the terms of your copyright ownership of these artists under consideration in this court? - ALL the contracts they have with the artists are scams - trust me I’m in Hollywood -
You can easily bring their integrity into disrepute - especially using the copyright /contract terms which were applied to older artists such as Muddy Waters etc - they are ALL scandalous to the point of illegality - good luck kids!
I would ask what they are really trying to accomplish with this lawsuit.
They claim that it is not about the money because the suit costs more than the putative settlement would cover. Which means than the lawyers cost more 1000-times money to the plaintiffs than the defendant (even if it could be proven that without him a 100 more CD would have been sold, which is highly unlikely). In this case are they really doing what is best for their clients? They could have redistributed as copyrights to the artists the money spent on the trial.
They claim it is to educate the public about the wrongness of downloading… how is it wrong? If I have the maths right (if you correct it it won’t be that much different), when Joel downloads a song for free he saves a dollar (cause he could have bought the track online for that price) out of a student budget (so 1000th of his monthly pay, say) and a millionaire (ie Justin T. since he was mentioned) loses 2-3 cts? (so one billionth of his monthly revenue).
So even if there was a proven loss of income for an artist it would be unfair to pin it on a customer. Plus it is easy to see that an artists whose song would be downloaded a million time would get much bigger publicity contracts than someone who doesn’t so it is not obvious what they really lose.
The system needs to be adapted parts of the profits from the sales of blank CDs mp3 players and so on should go for the RIAA.
The RIAA should monitor the download to pay up the artist proportionately to how many people listen to their music using the money they could save from these idiotic lawsuits .
Finally, they cannot claim they are making an example out of Joel while saying that they do not launch new procedures. If they destroy his life with a million dollar fine but don’t pursue anymore everybody will hate them and feel safe to make them pay by stealing more music.
THis all reminds me of a South Park episode. It is hard to feel guilty about stealing a few bucks from a billion dollar industry.
I hope you can change the paradigm.
Godspeed!
What is the difference between a song streamed by a Internet radio station and digitally recorded by a listener (which can be considered fair use, since the recording industry expressed little or no concern with individuals who recorded music from the radio on a cassette recorder.) and a song downloaded from Kazaa?
In 2006 SoundExchange (a digital music fee collection body created by the RIAA) asked Internet radio stations for $.0008 per performance.
A “performance” is defined as the streaming of one song to one listener.
Multiply the number of downloads of these seven songs with $.0008 and that’s the sum Tenenbaum owes the plaintiffs.
Your defense to this case all wrong. Your “wilful intent” is well informed, however, you are on a collison course with law that is being directed in literal terms. Your inability to argue a “fair use” defense leaves the “fairness” out of the proceedings. What you are missing is the linkage between wilful infringement and fair use. In many ways, they are synonomous. The young man being tried should be able to successfully argue that his possession and posting of copywrited songs was not wilful intent to infringe. Rather, it was based on his “limited” expertise in copywrite law. There has not been enough specific information deseminated by the recording industry in which a reasonable person could ascertain when the line of cognition exists. One plausible argument is that the letter of the law is so complicated that a person without legal training might very well be operating “In the fog of copywrite law.” Another thread, is the fact that the recording industries “profit arms” are reaping huge payoffs from many people around the country in the form of “settlements. Therefore, it is not a leap in logic to assume that they might want to keep the “money train” rolling and continue to limit understanding of complicated laws, and keep their “cash cow” delivering revenues at the expense of internet users who only start out with “a way and not a will.” In most cases the “will” never enters into the picture. The defendent in this case is well aware “now” that copywrite law is worded in such a way that would make it a violation to engage in the same actions that he is now charged with, and would certainly be culpable “now” if he were to do so. However, the young man was unable to form a concept of what a copywrite violation was under his previous understandings. If there were thousands of cd’s on the sidewalk, and someone had left them there for years, and you finally picked up a few and took them home with you. Would you be called a thief, and be subjected to accusations, litigations, and fines.? The question of whether you had intentionally taken those CD’s to deprive their rightful owner of the benefits of ownership is the hinge? At what point is the intent wilful? At what point, could the owners claim that you “with full knowledge, and wilful intent ” “stole, pirated” the CD’s from the sidewalk. There is no point of reasonable certainty that can be stood upon to argue the states position. Therefore their is reasonable doubt and in America reasonable doubt requires a verdict in favor of the defendent.
One of the things that would be useful to establish is that even if Joel committed deliberate copyright infringement there was probably no damage to the record company’s revenue, because digital theft isn’t a zero-sum game. You’ve already established leniency in courtroom antics, so here’s what I propose:
Buy CDs (ideally a compilation disc with some of the music Joel shared) and give them to the jurors, the judge, the prosecution, anybody who seems appropriate. If anybody accepts, then you can ask them if they would have bought those CDs for their actual retail price. It’s critical that it be clear that you’re asking about that _specific_ music that’s on the gift CD. Many of the recipients of the CDs would not have bought those CDs, and yet they were interested enough in the contents (for whatever reason–it doesn’t matter why at all) that they were willing to take them for free. For those people and that music, taking the music for free doesn’t cannibalize record sales, because they wouldn’t have made the purchase anyway. Next, ask them to image that they take the gift CD home and they find that they really like one of the artists represented. Would they then go out and buy a CD or buy downloads at iTunes? If the answer is yes, then the free CD has not only not cannibalized record sales, but in fact has enhanced sales.
This whole performance should significantly undermine the idea that Joel caused damage to the copyright holders.
Second Entry: WIlful Infringement.
The defendent has “not” admitted that he “wilfully infringed” copywrites. A judgement of quilt by the judge would be premature. There should be further clarrification that the defendent was talking about the mechanism of downloading and not the wilful intent. Again, the box that the record industry has constructed is closing on you. You have to think out of the box. If you drive over the speed limit, the way you are held accountable is if the speed limit is posted. You have to have knowledge, understanding, and a perception of what the line between legal and illegal is. If an individual physically does something, that does not mean that they are doing it with an intent to violate anyone’s rights. They may be doing it because the boundaries of where those rights begin and where they end might be vague. In this case the vagueness, confusion, and mixed-messages make for a no man’s land where few if any can come up with a reasonable verdict of guilty based upon the defendents “State of mind” “Conceptual understanding, and what is and is not acceptable actions. If you saw a sign on the side of the road that said TSPO would you stop or would you be confused. If thousands of other people didn’t stop, wouldn’t it suggest to you that there was something about the sign that you and everyone else didn’t understand. The law explicitly states “wilful” so a defendent has a right to address that portion of the law. Each element is part of the accusation therefore each element is open for defense.
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
Raise money to BUY RIAA.
We, the people, will own the RIAA, and the most of the problem will be solved.
We (the people) will advance this indastry to a better place, where the internet is part of its success.
Push to buythem and fight them.
Any witness.
Copy a cd to your ipod. Give him/her the cd as a gift. Ask why they are not suing you now for possession of illegal mp3’s. Say it was a friend who did the actual copying to the ipod. Compare with Joel.
Just a layman idea, dunno if it is of any use.
They’ll be under arrest for a long time. FBI White Collar Crimes Division
# Howard Singer, Warner Music Group Corp.
# JoAn Cho, Universal Music, Inc.
# Jennifer Pariser, Sony BMG Music Entertainment
A recent study concluded that people that actively download movies from the internet spend more money in the theaters than the ones that don’t download. So i would try to attack their so called “losses”.
Can you prove that a person that downloads mp3 does not buy music?
Can you prove that a person that does not download mp3 buys more music than the person that downloads mp3 ?
When a person listens to a music on the radio, would you consider that to be positive ?
I am not a lawyer but hope you can find any use in this.
Dont give up!
Ok what about this… A radio clause? What did you guys do whenever a song played on the radio back in the day when you had a cassette tape? You recorded the song, and then passed the tape along to your buddies by copying the music to another tape. That was never illegal nor brought to light? Just because its now easier to swap and trade songs so to speak, that is now illegal? So I deem that if they songs have ever been played on the radio, you cant sue for someone owning the song on an ipod/computer. Whenever you heard the song on the radio you didnt have to pay to play it. It’s like DVR’s you dont have to pay to record your show, you want to because you want to watch it (or in case of the songs listen) to it whenever you want. And from a DVR you can transfer songs to other DVR’s guess what thats not illegal either! If it starts off free on the radio, it should stay free. Why can’t artists make their money selling to radio stations and doing concerts. You dont have to make 100’s of millions of dollars to put food on the table.
This law was written before the internet was around and the writers of the law could not have anticipated such abuse of this law.
I am not a lawyer, but shoplifting $30 worth of candy bars would not get you nearly this type of punishment.
Make sure to let the jurors know about jury nullification. Even if you believe that sharing music (not for profit) is not fair use, such a high fine for this kind of “crime” is cruel and unusual IMHO.
Fight the good fight Joel!
I do not know how the legal system in the US works, but maybe you could sue for much more money because it seems to me that the evidence was obtained illegally.
Somebody violated your privacy by gathering this evidence. The evidence itself should be inadmissible in court since it is a product of privacy violation - an illegal act.
On the subject of the piracy of music/software etc etc, it has already been stated that the fault lies with the host, not the downloader.
i agree with many of you that are of mind that the supplier of the illegal content is the one that should be pursuit and not the downloader.
joel still accessed illegal material. but as with everything there is a chance that the product you are acquiring is illegal. normally there is no way that you can be held accountable for this if u do not know that the product is stolen.
in joels defence. these days it is very hard to know what is a illegal song and what is not. there are many bands out there that want to promote new songs.
meaning legal and illegal songs are all in the same bag. there is no way to tell what is illegal and what is not.
joel with 30 songs is just an average person. it is unfair to make a example of him.
his fine should not exceed 10.000 dollar.
my question to all clients.
In canada, the supreme court ruled that copying, posting, and downloading music FOR PRIVATE USE (which im assuming joel was doing) is compleatly legal.
Following this line of thought, my question is as follows:
Since Joel never made a dime from downloading this music, nor did any of his freinds, can you tell me what the exact level of damage is to your clients?
Further more, can you tell me if any of you have ever used a P2P service to download music, if you have then you have a conflict of interest here, as your using the very service your suing against
4th Amendment to the Constitution-
Did they have a warrant to search his IP? Did they in fact violate his civil liberties? You can’t barge in his house and search his computer without a warrant, did they trace your IP and saw what you downloaded without a warrant? I don’t know if that would work but if you can prove that you can throw out the whole case.
Why doesn’t he charge the RIAA for every tune he has to hear on the radio that he DOES NOT WANT TO HEAR yet he has to? And even though he has the right to change the radio station, since when did the RIAA ask for his permission to play their tunes through his sound system free of charge?
Maybe it sounds dumb and illogical but if the RIAA can charge an illogical amount of money per tune I think he is entitled to a compensation for having to put up with tasteless music through his radio.
First of all, I want to say I fully support you all. SOMETHING has got to change with the music industry.
Ok. How are these 30 songs equal to $675,000? A person can download them on iTunes for one dollar each. So. 30 songs? 30 dollars. Under what circumstances is this copyright infringement? He did not claim that he made the music. In fact, he probably just put it on his mp3 player if at all.
Where does the music industry make most of their money, now? I know it is not in their releases anymore. The truth is they’re panicking. They are trying to prove a point with him, but now the point is well.. pointless.
AND-further more. He was not hosting the music. Anyone can go online now and download a song. It is as easy as pie. Why should he have to pay a penalty because of 30 songs?
The truth is- the music industry needs to suck it up, and start concentrating on better and greater ways to get music to fans. That old horse is dead. Concentrate on the online sales more and charge more money for concerts.
May I quote a line from ‘The Pirate Bay’ documentary. “60 years ago, they were worried about albums. They said, “music can be recorded now! What will we do? No one will come to the shows!” 60 years ago they made their money through live shows. They did it, then- they can do it again.”
Sorry if I was unable to contribute much, but those are my 2 cents.
I haven’t read all the comments, but here’s my thoughts:
—Do you know ANYONE who would agree that the RIAA deserves $675,000? If not, then the law does not represent its citizens. Laws are supposed to protect people, not corporations. I hope this is the Roe vs Wade for human rights over corporations.
—If Tenenbaum can make the case that the people he downloaded the music from were his friends, then it is no more serious than receiving a mix tape. Would you give (or lend) someone something if you didn’t know them? No. Then by the act of letting Tenenbaum borrow the song, they must be friends (circular logic I guess).
—Whose property is the song? It’s not the RIAA’s, it’s the property of the person who bought it. When you buy something don’t you gain the rights to it? In other words, I sell my friend a poem I wrote, and someone takes a picture of it and I sue him for doing something to property no longer belonging to me, despite not owning it anymore. And again, if the law clashes with the beliefs of the country’s inhabitants, it’s time to change the law.
—Why does the RIAA deserve this extra money if Tenenbaum’s actions do not damage the RIAA in any way? They lost profits, but there was no damage. If Tenenbaum were asked to pay for the $30 of songs, that would make sense. But an extra $674,970? It’s not about the money, it’s about fear, and that’s wrong.
Not really a lawyer but one thing that is blatantly obvious is the track list that they are accusing you of, out of all the tracks that they own why would they use only the latest top 40 hits under their belts? This seems like a “quick there is money to be made here… get the chart list!!!” scenarios.
Give them hell my man, we have your back.
/feel free to rip any music off my site.. for free of course
Look, here’s the problem I see with all of these cases. Everyone is trying to skirt around the issue of “well how can you be sure” or “is it fair”, and “how do you justify”. In all honesty these arguments are stupid and childish.
The question that should asked is “how do you enter into the contract that is the copyright law?” See anymore in today’s day and age we are no longer accountable for our actions per say. It’s how a person is able to sue McDonalds because there was no warning on the cup.
Because there is an FBI warning on the CD, then the purchaser of the CD is the so-called licensee, not the person downloading it. The purchaser entered into a contract with the purchase. They are the license holder. That is why when they sell the CD to a used Record Store they are buy rights not permitted to keep even an archival copy of said CD. They no longer hold the license.
The person downloading ANY media never entered into the contract regarding that, and therefore is not guilty of anything. Only the original source whom uploaded the file.
But you have to get the other guys to admit to that. You have to lead the prosecution to admit that the only way to enter into the contract is by purchase.
Now why all of these other “arguments” wont work:
4th amendment… Bla bla bla. The Constitution only restricts the government, not private institution. If you come to my webpage, you are entering my home, and I have the right to make as many lists as i want regarding the who’s what’s and wheres. Therefore the Constitution has not been infringed because I as a private citizens, not government entity, traced and tracked on my own volition.
“how can you prove”… It hasn’t worked and it isn’t going to work. The simple answer is is that they don’t need to prove. In civil court it’s his word against mine. Their evidence can be as absurd as possible, and if you don’t have any good evidence that disagrees, then guess what, you lose. You downed the songs, you know it, everyone knows it, end of statement.
You cannot win and be false about it, otherwise you have no real victory. So the whole “i didn’t really do it, prove it, doesn’t work”.
Remember it’s Civil Court, not Criminal Court.
“it’s the hosts’ fault” - Yeah, no more Napster, it’s called decentralized tracking and Peer to Peer, meaning no middle man… There is no hosting being done.
“A, B, C, D, hasn’t killed the industry yet” - That is completely irrelevant. We aren’t concerend about what has or hasn’t killed the industry, we are concerned about sharing music and the legality of it.
“itunes, amazon, RIAA charges.” again… Who cares. It doesn’t matter. You wont find a judge in the world willing to listen to the selling and buying of goods on any medium. That’s like going into Starbucks and complaining that it’s too expensive and then suing them for it.
“the Radio plays.” All of that music is licensed by the radio stations and is paid for in advertising. Again it is irrelevant.
“losing profits argument” - This one sucks in a lot of people. Projected gains or losses are educated guesses, but guesses none the less. If you went by that line of thinking then every consumer ought be sued for a company NOT making the projected figures.
I hope that helps a bit.
Dear Fatcats of industry: I would like to ask each of these bands if they actually wish to be part of the RIAA, and if they will split the money that the RIAA receives as part of this judgement. If not, where is the money going?
“If Joel had stolen all this music from a retail store, he would have been fined around $200. In what logic do you see it reasonable to fine him $675,000 for downloading it?”
Im also an aspired artist from Canada. The Ongoing battle of “You Downloaded that, Now i Want My Money”
The issue that I personally cannot wrap my brain around, wheich is agood argument is when the file was created.
PROMO CD’s or PROMO MP3s are always moving around the internet. Define promo, you will very likely find the correct terminology:
–noun
1. advancement in rank or position.
2. furtherance or encouragement.
3. the act of promoting.
4. the state of being promoted.
5. something devised to publicize or advertise a product, cause, institution, etc., as a brochure, free sample, poster, television or radio commercial, or personal appearance.
6. Also called queening. Chess. the replacement of a pawn that has reached the enemy’s first rank by a more powerful piece of the same color, usually a queen.
If your still following me;
“3. the act of promoting. 4. the state of being promoted.”
Also, Numerous others do not understand the “SHARING FUNCTION” of a Peer-to-Peer software where it automatically generates and begins seeing without the users knowledge.
This creates a series of chain events, and thusfully,you begin sharing Mp3s that are not legally binding.
The Bitrate of an MP3 and a CD are well off.
Unless downloading a WAV uncompressed, which is what All Industrys use for a master “STANDARD”.
Compression after Copying now makes the “SONG” Undeemable to be Placed under Copy issues. “Blips, Clips, or Volume” issues are included during the conversion and are now not the original copy of the Artist.
What they are suing for, is what they do not now own after the Conversion/Ripping.
Its like saying, Hey…. THATS MY LIME!
YOU CANT USE MY LIME IN YOUR BEER. YOU CANNOT USE MY LIME IN YOUR FOOD.
Even though it was sold to you and now you are freely Distributing that lime and making additional profiets.
Also, as it all comes down to my rant on the RIAA, there are plenty of “COPY-FREE” CDs made by the support of the Record labels that understand the Promotional Value of the Sharing Community. As, it is a chain of events…. They are removing all media from places as YouTube etc., and Infringing their own Contract during the sale of the CD/DVD. That should be an issue of alot of Labels.
Again, im ranting, I hope i have made sence.
Regards Joel! Im With You On This!
NOT GUILTY!
-Jordon Fenton
Canada
If things go bad: As far as compensation, anything over the price of the song on itunes would be setting a dangerous precedent. If your landlord takes you to court for not paying months of rent, he just gets his months of rent back(worst case scenario you also get slapped with court fees). Giving the record company more that what the song is worth could set a dangerous precedent and create a new form of income for the record companies. “Why sell for $99 cents per song, when you can recover for $1,500 per song in court”. Sounds like an unscrupulous lawyers dream job to me. If landlords would get 5 times the amount of rent due in court, they would be forgetting to give you the mailing address for your check or the account number for transfers or whatever they could to make hard for you to pay. After all, they will get it 5 fold in the end.
When I’m going on a street and I sing something it means that I stolen the song? That I stolen the lirycs of the song and that I sing that song as it would be made by me? And other people from the street can hear my song. Same as here.
Hope you understand, my english isn’t so good.
Hey guys, I found this great site where you can watch the spy next door movie. I definitely recommend you check it out I really think it’s going to be a winner especially if you like
To the record producers/distributors:
As per the Digital Millennium Copyright Act, did you provide for the necessary copyright protection devices on your media to prevent it from being digitally copied by common computer programs today such as Windows Media Player? (They did not.)
And since you did not provide for such copyright protection devices, is it shocking that said media was copied by an end user to end up floating around in cyberspace?
As for the defendant, how can he be found in violation of the law when he received a digital music file, the file being received in a state lacking any copyright protection encryption/devices, and obtained using a legal program not intended to circumnavigate copyright protection devices.
As for distribution, the defendant did not destroy nor circumnavigate any copyright protection devices or encryption. Therefore, he merely passed along media in the same state he received it. He did not interfere in any way with the copyright holders ability to protect/encrypt their content, nor did he attempt to profit in any way from their content.
Also, the files Joel reieved were in no way clearly marked whatsoever as even being copyrighted material. If Joel is not told in some way that his media is copyrighted, he can not be at fault for obtaining it or distributing it. Fair use does not even come into the picture without some kind of warning on the media he was obtaining. In this case, not even a copyright symbol.
A jury will probably be convinced that Joel should just “know” this is wrong though. I would go for “did Joel break the law? the law says it is illegal to copy or distribute copyrighted material. joel did not break the law if the material he received was far from its original state and in such a state that is was no longer bearing any signs being copyrighted material. how can a file be protected from copyright when it no longer resembles the original material telling the user so.
this is a question FOR JOEL!!!!!!
im studying laws in university and i got a few questions:
1. how many song did joel download? Because in some pages say that it was 30 song or it was 7?? Answer it please!
2. How many was the fine and did the RIAA have the authoroty to fine u without a process using the digital theft deterrence act??
3.what were u exactly acused of and, what were the charges?
Thanks in advantage
Spencer
This is insanely unconstitutional. There is no doubt that this is
“Cruel and Unusual Punishment”
moreover, this is a payment to “cover damages” damages that have not been proven.
Hence I would say we have a “guilty until proven innocent” case.
This website looks great and reads even better! You share some great opinions and insight here. Always looking for motivating blogs to keep mine going!
Hello,Superb article dude! i’m Fed up with using RSS feeds and do you use twitter?so i can follow you there:D.
PS:Do you considered putting video to this blog posts to keep the readers more interested?I think it works.Yours, Kim Leithiser
These are impressive articles, I really appriciate your handiwork.
Hi, also like the Madagaskar movies, very good film!
awesome blog…I have actually enjoyed it!
Artists who support piracy should be witnesses on this trial, just like Paulo Coelho for ThePirateBay.
Anyway, this is weird but you could actually show the first episode of Fringe. The doctor made some kind of technology where two minds can link and communicate. THAT RIGHT THERE is file sharing 200 hundred years from now. People will just plug up each other’s brains and click on the files they want to share.
Ok ok here are my questions:
(To the Really Ignorant Assholes of America)
1-Do you have any proof or can you demonstrate that one downloaded file is equivalent to ONE lost sale? Out of hundreds of millions who download, who would have bought at least one of those goods? And just how many of those 1000 songs would they have purchased if there were no means of file sharing/borrowing?
2-Who are really losing from file sharing, the cartels or the artists?
3-What is the practical difference between sharing a song and lending a CD? You can return a CD/DVD/book, but you can’t return intellectual property.
4-If all murderers should be imprisoned, then should ALL PIRATES be fined/prosecuted? You would prosecute the majority of the known world, not only consumers but also artists. And what about VIACOM who stole from Spike.Com even though they were suing YouTube? Viacom should be sued too!
5-If you [capitalist assholes] can’t stop piracy, wouldn’t it be better just to adapt?
6-How do you people sleep at night, that is if you’re still human beings?
(To Joel)
7-Can you give me a list of the names of everyone you know who downloads/downloaded music illegally?
(To The Really capItAlistic Assholes)
8-To be fair to others, please file suit against ALL OF THESE people.
Last question: Do you think suing random people is going to promote or reduce piracy/file sharing?
I SO AGREE DAN!!
Asked of any RIAA witness:
1) May I, without attracting the wrath of your organization, hand the copy I have bought of my favorite CD to my friend sitting next to me at the defense table for him to enjoy for the weekend? (Yes.)
2) May I, without incurring multi-million dollar fines, make a backup copy of the CD I just bought, in case my friend loses the copy I’m about to give him? (Yes.)
3) May I, safe from subpoena and threats of litigation, hand that backup copy to another friend if my first friend loses the one I loaned him? (Yes.)
4) Must I not, then, take on good faith my first friend’s assertion that he lost the CD? (Perhaps/I suppose/What are you getting at?)
5) If my friend in fact did not lose the CD, am I acting in bad faith when I listen to my backup copy and/or loan it to a second friend? (No.)
5a) Is my second friend, playing that CD, acting in bad faith? (No.)
6) What is the fundamental difference between loaning the original CD and loaning the backup CD? (None, except that the first and the second must not be “active” simultaneously.)
7) Define “active”.
Regardless of the reply to question #7 there’s always a perfectly-legal corner case. Effectively, the shared MP3 is a backup copy of the song, the original copy on CD having been long since forgotten in someone’s dusty attic. A significant portion of the filesharing community owns a CD of the song. The only reasonable answer to question #7 is that no more than one person can play the CD at the same time. Can MediaSentry prove that more copies were being *played* simultaneously than the number of legitimate licenses owned by the filesharing community? If not, the P2P network is effectively a very fast, free-to-use version of NetFlix, distributing well-liked CD’s amongst friends for their listening enjoyment.
Slightly-alternate argument: There is no difference between loaning someone an MP3 and loaning someone a physical CD because there’s no such thing as “moving” a file in the computer world–only copy and delete. Thus, everyone’s taking it on good faith that the file they’re receiving is being deleted, or at least never again accessed, after being sent.
Last suggested argument: Can the prosecution prove, based on the preponderance of evidence, that the accused never held a license to the songs, the sharing of which he is being accused? Can the prosecution prove that the accused accessed the file for his personal use after having shared it with others; i.e., that’s he’s not just offering a convenient backup service?
Let me know what you think; IANAL.
Bart: Yes, this is guity until prove innocent. I’d use the latin, but I’m too lazy to look up Wikipedia right now.
Why not?: They won’t adapt because they would make less money. The RIAA shall do any of the following: 1.) stop file sharing and and continue its current methods, 2.) fall to file sharing and die, 3.) submit to file sharing but make less money or 4.) prolong choosing.
The RIAA CANNOT do #1. It is overwhelmingly impossible. It IS doing #4. It WILL NOT do #3, because it is composed of greedy bastards. Therefore, it WILL do #2.
It’s survival of the fittest. The RIAA may be financially power, but to quote Charles Darwin, “It is not the strongest of the species that survive, nor the most intelligent, but the one most responsive to change.”
File sharing is the new Betamax. It is unstoppable. Adapt or get crushed. The RIAA will never win.
Have you ever read To Kill A Mockingbird by Harper Lee? If so, then I think you might notice the similarity…
Just as blacks were guilty before the trial began, file sharers are guilty before their respective trials (if ever) begin.
Sony’s Betamax was considered fair use began SONY a damn conglomerate can obviously afford justice just like its then-plaintiff Universal. But Grokster, a software company, obviously stood no chance against MGM.
“I am not a lawyer, but shoplifting $30 worth of candy bars would not get you nearly this type of punishment.”
Of course not. The candy companies know for sure that they would lose $30 from the candy. That’s an expense recorded in the accounting journal entries. On the other hand, the RIAA loses nothing accounting-wise from downloaded music. It’s these perceived “lost sales” they keep blabbing about. A lost sale, if any at all, does not even equal an expense. The burden of proof unfortunately does not lie with the depraved plaintiffs.