Fantastic article, PJ

By Ray Beckerman

February 08 2007

Fantastic article, PJ. I was profoundly moved by it. I can see that cynicism rules here, but the Capitol v. Foster decision is very important and will have a lot of impact.

1. It makes it clear that the RIAA's "driftnet" strategy, of targeting innocent people in order to conduct an investigation or in order to extract a settlement, is going to have very expensive consequences for the RIAA.

2. It reminds us that merely being the owner of the internet access account to which a shared files folder has supposedly been associated is not a basis for copyright infringement liability.

3. It reinforces the principle that merely making one's computer and internet access available to one's children, or to other relatives, friends, or guests, does not make one liable for copyright infringement.

4. It reinforces the holding of MGM v. Grokster on secondary liability, establishing that the lack of affirmative encouragement or inducement is a complete and total defense.

5. Additionally, the decision will have a great deal of practical impact, as its faultless application of time-honored copyright law principles to strike down the RIAA's unprecedented new legal theories is read by judges, lawyers, and defendants all across the country, who are reminded of the real copyright law as opposed to the RIAA's invented version. Many defendants who were thinking of giving in to the RIAA's extortionate settlement demands will be encouraged now to stand and fight. Many non-copyright lawyers who have been or are being consulted will now realize that their clients do have winnable defenses. Many lawyers who were reluctant to take on these cases, will now jump into the fight. Many judges will be alerted by this decision to the abuse of our judicial system that the RIAA has been perpetrating. The ACLU, Public Citizen, EFF, American Association of Law Libraries, and ACLU of Oklahoma -- all of whom put themselves on the line in favor of this motion -- will be heartened by the judge's wisdom, and by the clear indications that he heard them. They and other organizations like them will be more willing to jump in and fight the RIAA onslaught against regular Americans.

6. Although the RIAA's spin doctors are pretending they are thinking of an appeal, that is bunk. For one, the order is not an appealable order; it is impossible to appeal from it, since it is interlocutory. Secondly, when a final judgment is entered, and an appeal could be taken, there is no imaginable way the RIAA could win an appeal, since the grant or denial of attorneys fees in a copyright case is within the Trial Court's discretion. Thirdly, as a practical matter, it would border on insane for the RIAA to continue litigating the Foster case, since it is now established not only that Ms. Foster is entitled to her attorneys fees as of the time period covered by her attorneys fees motion, but she is entitled to supplement her application for any additional fees. All of the time charges of Ms. Foster's lawyer from this moment on will wind up coming out of the RIAA's pockets, in addition to whatever it has to pay its own lawyers. Fourth, litigating 'reasonableness' of an attorneys fee application is actually a factually complex task, and could easily consume $40,000 to $50,000 in fees on both sides. Fifth, if they litigate this, the whole thing will be public. They could wind up with a public decision awarding $100,000 or more in legal fees if they take this further. I expect them to attempt to settle this matter quietly for a $55,000 attorneys fees payment, with a proviso that the exact amount of the settlement be kept confidential. That's the only way for them to keep their damages manageable.

PJ is totally right.

Chalk one up for the good guys.

10:18 PM EST

"Very expensive consequences" ??? PUHLEEEEZE

By Anonymous

February 09 2007

You either don't have a clue, don't want one, or are a lawyer yourself I
suspect. RIAA spends this much on EVERY case they file (and the poor victim
didn't even get an award of all her attorney expenses, let alone ALL her
expenses and grief due to the lying thieves and the "artists" they
represent. Don't forget: RIAA couldn't do this if smarmy artists and labels
didn't sign up for the abuse.

So this year, the RIAA files 13,999 cases instead of 14,000. Whoop de doodaa.
If you call that legal "progress" in the USA there is simply no hope
for you. Get a CLUE.

09:18 AM EST

"Very expensive consequences" ??? PUHLEEEEZE

By PJ

February 09 2007

You are addressing a different issue, which
is whether it should be
against the law to file share in the first
place.

Courts don't normally address such issues. That
is for the legislature. They'd only address it
if it is before them or it's a Consitutional
question.

What courts do is make sure the law, as passed, is
applied correctly and that innocent people are not
pressured into settlements because they are poor
and friendless. That is what just happened. Yes,
there will be more lawsuits. But they will not
be the way they have been, with grandmothers who
never touched a computer in their lives dragged into
court and forced to pay thousands they don't have
just to get out again.

That is what was happening, because it was a lot
easier and cheaper for the music industry than
getting it right. And if this woman had lost,
then you would really have a mess. Then the
principle would have been established -- and it's'
what the music industry was trying for -- that
you could be guilty of copyright contributory
infringement just for having an Internet account
that someone else used for infringement, even if
you didn't know a thing about it.

Considering how many 0wned boxes there are, it's
a horrifying prospect, from the legal standpoint,
because it removes any nexus between offense and
person charged. Once law gets that far from true
north, that arbitrary, it isn't justice or even
a close proximity, which is the best you ever
get anyway, imperfect humans being in this picture.

This very week, we've seen Microsoft refuse to show
mercy to a schoolteacher in Russia who faces
five years in Siberian labor camps for buying
computers for his school that were not properly
licensed, something he didn't know when he
bought them, according to Putin. So justice
isn't something that just happens. You have to
guard it. And that is what this case represents,
to me.

10:49 AM EST