If you couldn't make it to the conference call with Ray Beckerman, a lawyer representing clients in cases against the RIAA, you can listen or download the audio from Archive.org
Gregory Heller DefectiveByDesign Campaign Manager:
So without further ado I turn it over to Peter Brown the Executive Director of the Free Software Foundation
Thanks, Gregory. And welcome, everybody.
On June 23rd, the Defective by Design campaign organized a phone-in targeting the executives at the Recording Industry Association of America (the RIAA) and similar trade organizations in Europe and Canada. We did this to allow our supporters to express their frustration with Big Media's attempt to force DRM into our technology and onto our society. Through the action we became aware of the work of Ray Beckman and his excellent blog 'Recording Industry vs the People'. Ray practices law in New York state and is the lead attorney there in the fight against the RIAA lawsuits .
From speaking to Ray about the campaign I came to realize that we are in fact fighting the same battle but just on two seperate fronts. That battle is the battle of consumer control. DRM is simply an attempt to win this battle with technology restrictions, and the other is an attempt to win the battle through intimidation and lawsuits, that they also hope will allow them to rewrite copyright law. It's very important that we realize what's going on in these lawsuits and that we realize that in fact there's no real financial support going on. The RIAA has really been allowed to run amok here and we need to take some action. So let me introduce Ray Beckman to you and let's find out what's happening with these lawsuits, how they're connected to DRM, and what we can do to help. Ray, why don't you spill the beans on what's going on?
For almost three years, the RIAA has been conducting a reign of terror and they have actually tripped across what is possibly their most effective device which is bringing lawsuits against defenseless people.
You have a multi-billion dollar cartel sueing unemployed people, disabled people, housewives, single mothers, home healthcare aids, all kinds of people who have no resources whatsoever to withstand these litigations. And due to the adversary system of justice the RIAA will be successful in rewriting copyright law, if the world at large, and the technological community in particular, don't fight back and help these people fighting these fights.
Every time you learn of one of those rare instances in the 19000 litigations in which one person has fought back, it means that there's a lawyer out there who's either working for free or getting a nominal fee for his work and you will notice that you will never see a big law firm in that category. For one thing, the big law firms are like any big corporation: they need to make a profit. That's what their primary purpose is. And they would be interested in representing the RIAA, not the poor people that the RIAA is sueing.
Now these cases raise very important legal issues relating to privacy, and not just music, but technology. The way this campaign begins is with an investigation that is not an investigation at all. The sophisticated audience to which I am speaking will realize how bogus it actually is.
They have an investigator pretend to be a user of KAZAA or one of the other similar file-sharing networks. He finds a shared files folder that has a goodly number of copyrighted songs in it. He has no idea whether those song files were obtained legally, whether though payed downloads, or through making personal copies from one's own CD for backup purposes, or whether anything illegal was ever done with those files, whether anyone ever copied one. And what he does: he takes a screen shot of this shared files folders (He of course does not see the folders, he merely sees the text in the metadata) and decides that this is a big shared file folder.
Then through some secret process which he will not share with us and has tried to conceal from the courts, he then associates it with a dynamic ip address. And then, after he has what he believes is the correct dynamic ip address, for the date and time at which he made that screen shot, he then brings a proceeding to get the name and address of the subscriber who paid for the internet access, which of course would tell us nothing. But once he gets that information he then sues the person.
The way he gets the information is through a one-sided lawsuit against a host of John Doe's. Usually the people who are named as defendants in these cases, live in cities hundreds of thousands of miles away from where the lawsuit is pending, and they only find out about it after an order has already been entered directing the turn over of information.
They usually receive only just a few days' notice and are told that unless they can hire a lawyer in that far off city and that lawyer can make a motion to quash the subpoena and vacate the order, that their information will be turned over. And of course at that point they don't even know that there's a lawsuit. Most of them do not even know that they have been sued. They don't have copies of the court papers, they don't have copies of the application for the order. They have absolutely no way to resist.
A couple of people have been alert enough to alert the Electronic Frontier Foundation and others, and so we've managed to bring a few cases in which we've attacked this initial John Doe process. But the judges, who are anything but digital natives, have no understanding of it, have given us very short shrift, haven't listened to anything that we've had to say. There was a case in 2004 where an elderly judge was told by a lawyer in his brief from the RIAA that from the metadata and the hash you could tell that these were illegally copied files, which was of course nonsense. But the judge actually referred to that in his decision as to why he was upholding the subpoena.
Once they get the name and address of the victim, they then basically seek to extort a settlement of either $3750 or $4250. If the victim calls them up and tells them that they've never even done any file sharing of any kind, that they have no idea what it's about, that they're completely innocent, the RIAA doesn't care and then it commences a federal lawsuit.
Now, defending a federal lawsuit is an extremely costly process. If you get into the merits of the case to prove that you're innocent, you've already lost because under any scenario you're talking tens of thousands of dollars at least in legal expenses in order to defend such a case.
Now there are some very important cases going on. In my office we've tried to attack process early on. We're the only firm that lately has made motions to vacate the John Doe cases. Once the name and address is known and they sue a person in their name, they still have this extremely vague complaint which tells you nothing because they know nothing. They say the defendant downloaded, distributed and/or made available for distribution certain song files. But they have no evidence of any downloading, they have no evidence of any distributing. And at most they can say that someone who might somehow be associated with the ip address might have made some files available. But they certainly don't know that the defendant did.
All they know that the defendant did was to write out a check for internet access. Now, we've tried to point out in our John Doe cases that the technical underpinning of the investigation is meaningless, that the metadata doesn't tell you anything, that it can be scrubbed, that it can be changed, that any real pirate would never leave the metadata of the thing he had perloined. And the IP address makes no sense because any real pirate would be using someone else's internet access account. The metadata tells you nohting, the hashmarks do not conclusively establish anything. Even seeing the shared files folder doesn't tell you which computer it resided on because all of these networks use one form or another of a hierarchy of computers (those with fast broadband connections and those with slow broadband connections, so you have the nodes and super nodes or whatever terminology they use). So that when you see the shared files, all you're seeing is metadata from one computer or from a group of computers that are connected to one node, but the judges have no clue. They actually won't even let me talk about it. One of the three motions had no oral argument. And the two that had an oral argument, the judges would not let me speak and kept cutting me off.
Now, there's a case called Electro vs. Barker which has become very important. This is a nursing student who was sued in her name. We made a motion to dismiss the complaint because doesn't specify any acts or dates or times of copyright infringement as the law normally requires. We've made several arguments like that before this motion and the RIAA put in an argument which basically fudged it. However, in this case they basically decided to go for the gold and they made a bold argument claiming that merely making files available on the internet is in and of itself a copyright infringement. It was a shocking argument because if it were accepted it would probably shut down the entire internet.
As a result of that bold argument, certain organizations came in putting in an amicus curiae brief to support Miss Barker's motion to dismiss. In reaction to that the Motion Picture Association and the United States Government put in briefs supporting the RIAA trying to... Well, the Motion Picture Association directly supported that extreme argument. The US government didn't quite go that far but it tried to support the RIAA by attacking another argument that had been made by the Electronic Frontier Foundation.
Meanwhile, Miss Barker is a nursing student. She has no money. She lives in the housing projects, and she has to have lawyers reviewing all these briefs, writing briefs for her etc. Now, this case is pending and the judge may call for oral argument or he may render a decision.
But if our motion to dismiss is granted and sustained on appeal it would mean the end of the RIAA juggernaut against innocent people not known to have committed a copyright infringement. And yet we've received no support of any kind from anywhere, and Miss Barker has no resources to defend this case.
In the case UMG vs. Lindor where the defendant Lindor is a home health aid who's never used a computer. She's never used a computer, she's never owned a computer, she's never even turned on a computer. The only connection she has had to a computer is that she has on occasion dusted near the parts which she believes are a computer. And yet she is being sued as an online distributor in peer to peer file sharing. This is a case started by her so we were not able to (we stepped in in the middle) so we're not able to attack the complaint, but we're seeking information on the cartel-like behavior of the RIAA and we're in all kinds of discovery disputes. The RIAA is trying to conceal information about how it conducts its "investigation" to conceal the information on how the different companies work together to run this campaign to destroy competition in digital music.
All these discovery disputes... There have been depositions and now they're calling... They've already deposed her and her son, they now want to depose various other relatives and her daughter. And meanwhile they've stonwalled every discovery request we've made. And unless the world comes together and helps these defenseless people the RIAA is going to win all these battles one way or another and they're going to rewrite the copyright law.
I want to thank everyone who was on the call today for joining us and to let you know again that this call was recorded and that the audio will be made available on our website later today at DefectivebyDesign.org.
Please blog about it. Tell your friends about it. Stop by the website. Be sure to sign our petition to Bono. You can get the link off the front page and also make a donation via the link on our front page in the upper right-hand corner to support Ray's work in defending some of these cases against the RIAA.
Thank you once again everyone. Thank you Ray and Peter. And stay tuned for more information from DBD about what's next in our campaign.
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