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Asmodeus
join:2004-05-26
Spring Valley, CA | a lot of you are clueless... what do you guys expect... the riaa is nothing but an association of lawyers that represent the recording industry... it is in their best interests for themselves and their client(s) to settle and draw as much cash into their coffers as possible... taking someone to court is expensive, time consuming (meaning time is money), and may not yield the results they want (meaning they may lose and set up certain precedents that the riaa and their lawyers don't want)...
once again, some of you are defending the indefensible and this is why the riaa wins everytime and settles out of court... what sort of strategy or case can any of you possible come up with that justifies your actions that brought the riaa down on you in the first place...? think about it and stop being such contrarian juveniles... | |
|  | | Re: a lot of you are clueless... In my opinion they definately dont want this to reach court. Because if someone were to dig in their heels, there is a possibility of a precedent being set that is not in the RIAA's favor. However, if people are willing to settle out of fear, then the RIAA gets a dual bonus: free cash, and bragging rights. | |
| | | I was curious about this as well... that article even goes so far as to call the people victims. As if none of them downloaded illegal content.
And for all the people that DID download illegal content (which was probably everyone... since they settled), how exactly could you defend that action in court? | |
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| Re: a lot of you are clueless... The same way anyone defends themselves, you only need to prove that downloading music itself is not illegal. Many ways to go about it, you can say its for personal listening, you can do many angles.
There is a old saying, The appearance of the law must be upheld, especially while its being broken. | |
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| | I tend to think that illegal file-swapping is similar to taking someone else's work for free - its stealing - you wouldnt steal apples from the grocer would you? Or not pay your house-painter?
But the article raises an interesting question - if the reporter thought he was getting legal advice in his state about his state laws from a non-lawyer out-of-state firm, both the Texas Bar Assoc and the aclu should have a problem with that. Only a real, licensed lawyer can give you legal advice. Setting up some call center with a script hardly qualifies as a way to answer serious legal questions, especially if there is a veiled threat about being sued affecting future jobs and income opportunities. People get sued all the time, thats what rational people do who cant resolve their differences by talking.
Also, if people feel they are under duress in settling, no judge will let that stand. I wonder if a judge realized that people, some minors, under duress about their future jobs/careers are agreeing to settlements, would set aside a whole class of settlements to review the issue. I dont know but some reporter could think about it.
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| | yazdzikPremium,MVM
join:2000-07-26
Honesdale, PA
kudos:1 | Re: a lot of you are clueless... Dear Friends,
Anonbug is absolutely correct.
A cursory glance at the article indicates that the person proferring legal advice is not a lawyer, and thus, his actions are contrary to statute in most states requiring admission to the bar by a qualifiying acreditation body to dispense such advice.
The advice, as may surprise no one, is incorrect. A judgement does not negatively affect credit rating, to wit FICO scores, unless unpaid. Furthermore, being a party to a lawsuit cannot affect job opportunities, unless the lawsuit is of a criminal nature, and then, only within specific limits, depending upon jurisdiction.
Worse, the basic theory of the case is wrong. The owning of the IP cannot create the underlying tort.
The actual bar exam question of a few years ago on the NY all-states portion:
Mary and Sue are driving down Mulberry Street in Mary's car. They are seeking an address on Plymouth Street which is either left or right at the intersection. They argue, and Sue takes the whell out of Mary's hands, turning it in the direction she considers correct, in the process desotrying John's prize hedges. He sues Mary and her inurance company in local court for $500, the stipulated value of the hedges.
The action is:
1. Found for the plaintiff for $500.
2. Found for the defendant, because his hedges cannot be worth more than their actual replacement value.
3. Found for the plaintiff for the value of his hedges as determined by the insurance company's estimate to replace them.
4. Subrogated to his homeowner's insurance(I like this one[my]
5. Dismissed.
Obviously, the answer is 5.
Why? Because the proximate cause of damages is Sue's action.
Now, the average person, and the average lawyer, sadly, presumes that since it is Mary's car, her insurance, and "she is required by law to be in control of her car" she'll have to pay. He is wrong. Mary downloading Windoze Warez SP 23 on John's pc is the proximate cause of damage to Windoze Warez, Inc, not John's paying his Time Warner bill.
Fear is great weapon - "god will damn us if we allow this that or the other" creates more statute than reason ever could. Guilt, fear, anger, hatred - these are the things that drive the conduct of those whom we did not care to nurture, those who in spite of nurture are just plain bad people. The RIAA is just plain bad people. They would sell our laws for money. It never ceases to amaze me how few Germans were Nazis, as had Goebbels built the camps with his own shovel and pail.
The entire script, if occurring as reported is keystone cops quality parody. I cannot imagine any sane person taking such a threat seriously. If we have reached the level of ignorance that we accept legal advice from minimum wage script readers, our society is doomed not because of theft of intellectual property, but educational bankruptcy.
I hear all too often, "we are a democracy." Since when? Last time I read the constitution, the very basic rights of the state are severely circumscribed, and the majority have naught to say about most basic things,like religion, gun control, speech, curial procedure, and so forth. "Congress shall make no law...." really does limit the majority rule.
As long as we do not teach our young to read and write well enough to think clearly enough to question the dunce logic of such shenanigans we are in far more trouble than a association of pirates objecting to piracy can cause us.
Stealing intellectual property is not the issue here at all. The right to due process does not depend upon the rectitude of the act being adjudicated.
Practising law without a licence, dispensing clearly false information as a means to subvert the legal process, creating duress to settle a matter sub litige are all vile. That the RIAA is no better than the Scutzstaffel, and excuses its blackguardliness with the same recourse to legalism is a pimple upon the ass of our culture. That the average person accepts this is its death knell.
The federal government, the local school boards have, purposely or not, created a generation too unskilled to think, possessing little or no accurate information and less tools to find it.
I naively thought that people with enough bandwidth to download dozens of mp3s would have enough curiosity at least to check statute, to read interesting writing, to care about civilisation.
Obviously, yet another Texan has proven me wrong.
All good wishes,
Yazdzik
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....the biggest idiot I have seen on these broads... | |
| | | | | Re: a lot of you are clueless... I'm sorry, but your scenario is flawed in some states - California, most notably, and let me tell you why.
Using your same situation, small claims court would find in favor of the plaintiff against Mary BECAUSE:
1 - Mary is the registered owner of the vehicle and thus liable for anything done in the vehicle (haven't you heard about the people who get tickets in other people's cars but the registered car owner is responsible? It's the same concept.)
2 - Regardless of who holds the insurance, if the company refuses the pay the claim, the judge is going to order Mary to pay it out-of-pocket. Again, it's HER car. She is responsible for making sure that the other chick doesn't cause any damage in the car.
3 - the judge is going to tell Mary to go after Sue in small claims court to get her money back. He can't find Sue in the wrong, because her property didn't damage John's.
Trust me - it happens all the time. Drunk drivers who are not the registered owner, tickets by someone other than the registered owner, etc. It's all the same thing.
Now, with regards to file trading, it doesn't matter if little 8-year old Billy is swapping that new Vanessa Carlton CD. Billy's Mom, being the account holder and the one the IP is linked to, is getting slapped with a threat. And it's legal.
That having been said, a person could theoretically get out of the lawsuit in certain states by engaging the "public domain" argument ("I had reason to believe the files were in the public domain, as I was not asked to pay any money for their access or use, nor was I provided any disclosure with regards to the origin of the files.") Some judges will swallow it, dismiss the case, and shrug their shoulders at the RIAA. | |
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| | | said by anonbug:
Also, if people feel they are under duress in settling, no judge will let that stand. I wonder if a judge realized that people, some minors, under duress about their future jobs/careers are agreeing to settlements, would set aside a whole class of settlements to review the issue.
Here's how the exchange would go if any of these went to trial:
RIAA: Do you like music?
Fileswapper: Yes
RIAA: Did you ever buy a CD?
FS: Yes
RIAA: Why did you buy it?
FS: Because I liked the music.
RIAA: Why didn't you just take it out of the store?
FS: I might have got caught shoplifting.
RIAA: What would happen if you got caught shoplifting?
FS: I would be arrested and that would be on my record....
See, the judge would then know the person was able to think clearly and understand the issue. Saying that they would be under duress doesn't fly, I'm afraid. | |
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| | I don't defend the pirating of music. I think that that is illegal and should be properly punished. IMO, the penalties for sharing music (without attempting to make a profit on it) are too high, but that's another discussion entirely.
Here, my beef is with the RIAA's tactics. Suing someone for sharing music is ok. Setting up an "informational call center" whose purpose it to threaten frightened users into settling isn't.
Some of these people might not have even pirated music. (See the recent story about the 83 year old deceased grandmother who never had a computer in her house). For these people, the lawsuit comes out of nowhere. When they call the phone number, they are basically told that it doesn't matter whether they really doesn't matter if they are guilty or not. If they don't settle, they'll be sued, their credit will be ruined, they won't be able to get a job, etc.
So now the innocent (mistargetted) user is forced to decide. Pay $3,000 now to settle and make it all go away or spend a lot in legal fees (not to mention time and energy) to fight the RIAA's lawyers in court. If they win, they're still out their time and energy (and, depending on the outcome, lawyer fees also). If they lose, they also must pay the RIAA up to $150,000 per song that the RIAA claims was shared. This in addition to all of the FUD that the RIAA representatives spread via the call in number leads many people to settle whether or not they really pirated anything.
I know it would be easier and cheaper for me to settle if I were to get sued (even though I don't download MP3s illegally). As much as I'd hate doing it, I just wouldn't have the time or money to fight such a battle.
--
-Jason Levine
http://www.jasons-toolbox.com/
http://www.PCQandA.com/
http://www.urateit.com/ | |
| yazdzikPremium,MVM
join:2000-07-26
Honesdale, PA
kudos:1
1 edit | California is in the ninth circuit - the laws of gravity do not function there. 
-M
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....the biggest idiot I have seen on these broads... | |
| |  gogeta6
join:2002-06-20
San Diego, CA | Re: a lot of you are clueless... While it's nice that they are there to stand up against so many dipsh**t's, you are soooo right. | |
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yazdzikPremium,MVM
join:2000-07-26
Honesdale, PA
kudos:1
1 edit | Dear Friends,
Of course, that exchange cannot happen in a court,as the first three questions are immaterial, the "why did you not take it" question is argumentative, the "what would happen..." question inadmissible unless the person were a lawyer and could testify as to the lawful consequences of the action. One cannot simply ask whatever one thinks will prove one's point. A courtroom is not a classroom.
We are confusing right and wrong with curial procedure applying to statute.
Whether or not it is right or wrong to steal music is not the issue. A stipulated settlement produced under duress will not stand, because a rich powerful company with infinite resources is not supposed to be able to force widows and orphans to stip away their rights. Thus, the judge will, in general, ask the pro forma question of the "freely entered into" part of the stip, but in the case of a poor student settling for thousands of dollars with the RIAA, the questioning would be more severe.
Morality is totally out of play here, the settlement company is wrong on all the legal issues, and is acting in a bullying fashion.
As to how small claims courts judges rule, an insurance company will also pay a $500 claim to avoid $10000 in legal costs, irrespective of law. The requirement of the insurance company, in some states, to indemnify all operators of a motor vehicle does not alter the law of torts, but creates a separate liability issue. Confusing a parking ticket with a tort is not even an argument. Analogy creates no statute, experience no procedure.
Look at credit card companies: how many will file for judgement when the enforcement costs are more than the debt. The answer to a creditors phone call is always "sue me." The place to determine a monetary judgement is not the bullring, but the bench, bar and well. "You're a bad man, borrowing money you didn't pay back." "And that entitles you to a judgement why? And getting a judgement you intend to execute it how?" In essence, the difference between US law and European law is the existence of debtor's prisons, and the extent to which the weak are protected against the strong. To argue the inequality of the poor is to exhibit such a lack of idealism that law would become the mere extension of physical strength, and we could return to choosing a king by tournament.
The issue is still not whether file trading is right or wrong. Arguendo we all knew that there were an omnipotent creator who would damn John Doe to hell on the last day for file trading, why should this impinge upon the curial interpration of the fourth amendment requirements for specificity in subpoena?
Why furthermore would such damnation allow a settlement company to spew nonsense, and use intimidation tactics which would invalidate a stipulated agreement?
Either we are a civilised country of laws, or a land where right and wrong determine what a person can do. The advantage of the former is that Salem and Dachau are a lot harder to pull off in a secular republic than a theocracy.
The smell of burning witches hung in the air when Jefferson penned the first amendment, and the sedition laws of England creating the Bloody Assizes were every law student's fodder. The idea of a modern day Jeffries forcing parents to pay massive sums of money for everyday conduct is sufficiently frightening to require yet stricter adherence to the rules of evidence,and reason enough to keep the common morality out of the courts.
The repercussions are of far deeper significance than a few kids stealing a few million, or even a few billion from a cartel. Consitutional safeguards, in the end, are far more valuable than any property, although paradoxically, it is that private property we seek to protect from state intercession. The individual may be the voice of Socrates against the Athenian elders. The thought of another philosopher exiled and killed is enough to demand the repeal of the DMCA and the Patriot Act. We let our fears of our neughbours stealing from us blind us to the deaths of those whose wit may prove our own salvation.
Whether stealing is right or wrong, we have a system in place to limit the powers of the state to rectify either crime or tort. It is true that the internet has created an easier way to steal intellectual property. It does not follow that therefore the state should have a easier way to prosecute, or that a plaintiff should have easier means to subpoena information. We are headed in popular culture down a road leading to "the cops would not have arrested you if you were not guilty" ending at "recite the ten commandments." The Bill of Rights prevents the power of the state, whether by dictatorship, plutocracy, or plebiscite from becoming greated than its contracted limits. "Most people feel" may elect a politician, but cannot alter the basic tenets of civil rights. After all, most people felt that segregation was god's will, and before that, slavery. Wherefore we keep the will of gods and the whims of men out of basic law.
Enforcing right and wrong is a dangerous business for fallible humans; even Jesus asked whose picture was on the coin.
Sincerely,
Yazdzik
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....the biggest idiot I have seen on these broads... | |
| | | | Re: a lot of you are clueless... Be my lawyer  | |
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