What Would You Do, Part Two

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The following are comments from readers about what they would do is RIAA threatened to sue them.

About half said they’d pay, the other half said they’d fight.

However, most of those who said they’d fight would base their defense on grounds that wouldn’t hold up five seconds in court. There’s a lot of misconceptions out there.

So what I’ve done is post the comments, and any comments in bold-face are explanations as to why this doesn’t hold water.

Should you end up in this situation, and decide to fight, you most certainly should at least consult with a lawyer, and let him or her tell you what definitely doesn’t fly.


My Kid Said “You Do It, Why Can’t I?”

If the RIAA sent me a letter claiming (or knowing) that I had copyrighted material on my computer and they are going to fine me $2000, I would immediately pick up the phone and ask, “Do you all take Paypal?” I have too much at stake both financially and personally to be put in the limelight by taking action against the RIAA.

You make some great points in your article about how people are willing to talk, but that is it. There is no defense for doing this. There is no excuse.

Why would I not fight? For all the reasons you spoke about (lawyers, losing, paying more, etc.) and some you did not mention.

What would that do to your integrity at your work place? I would suspect that your name would be plastered on newspapers and CNN. Could you even get onto the internet without someone out there watching your every move? Could you get a job in the internet industry having that on your record? The sheer thought of that frightens me.

You know there were a lot excuses I used to make to myself about why I used P2P programs. It was not stealing, it was liberating. I knew better.

Then my 15-year-old stepdaughter downloaded Limewire and got a few songs. I was FURIOUS. I told her how wrong it was, and how you could be caught, and how there could be viruses. She asked me directly, in that sarcastic teenage tone, “You do it, why can’t I”. I felt like the dad in that commercial back in the early 90s that finds his kid’s marijuana and the kid yells that he learned how to do it from his dad.

There are worse things than the RIAA, and granted, the big P2P’ers may not have kids, but what if you did. How would you explain that? Alternatively, how would you explain to your parents, or your grandmother, that you willingly stole and now had to face the consequences? Morality can certainly sting.

Sorry for the rant, sorry for the speech. Just thought it needed to be said.

I’m Not A Martyr

If I won this lottery and was offered a settlement for 2k. I would jump on it faster then you can say kazaa. 2k is nothing in comparison to what legal costs would be if you fought the case. It would also be nothing compared to how much you would end up having to pay at the end. Imagine having to pay the royalty costs for thousands of songs… that’s way more then 2k, I am sure.

I would not want to become a martyr for the p2p cause, if you can even call it that. Remember, a martyr dies or suffers a lot and I do not want my financial stability to die or get beat into the ground.

Is This U.S. Or World Law?…

Is This U.S. Or World Law?

I’m not sure how the RIAA would go about processing cases outside of the United States. I’m Canadian, so I’m not sure what would happen. . . . I’m not really worried about being subpoena’d. That may sound foolhardy. That doesn’t mean, however, that I think I’m invincible.

If I were to “win the lottery” I’d definately settle if it was around $2,000
I think. One man can’t fight RIAA all by himself, at least not when he’s
guilty. But who is doing this “finding people who share files”? RIAA
themself? Is that even legal? If so, is it also legal here in Norway, or is
it some part of USAs “fight for terrorism” that anyone can check out what’s
on your PC and then use it in a lawsuit?

The relatively short answer to these questions is “No, U.S. law per se doesn’t extend over the border. No danger of U.S. Special Forces sweeping you away.”

However, much of U.S. law in this field (i.e., the DMCA) exists because the United States and other countries signed copyright treaties. These treaties provide for international exchanges of information and enforcement.

This isn’t Iraq. This isn’t a matter of the U.S. unilaterally going to war against P2Ping. If your country takes copyright law seriously, they’re singing basically the same tune.

So the RIAA could file a complaint with the equivalent national or (in the case of the EU) supranational body responsible for enforcement of copyright laws, and those would be the people who’d go after you.

If you live in the EU, expect to see anti-copying laws in force within the next couple years. The EU is no friend of P2Ping.

Canada is a bit different, but not as different as people think. Canada allows some forms of copying for personal use (and charges a CD-R tax), but downloading is not a legal form of personal copying.

So RIAA could sue you for copyright infringement under Canadian law for downloading; the practical issue there is whether or not they could find out who you are like they now can in the U.S..

In the long run (within the next few years), it’s probably safe to say that the U.S. and the EU will have fairly stringent anti-P2Ping laws on the books. Canada probably will, too, though it may be later there. Other nations in what is considered the “developed” world will probably follow suit.

The rest of the world? Who knows?

Burden of Proof…

Burden of Proof

Don’t they have to prove in court, “Beyond a shadow of a doubt”?

That means they have to prove it was YOU on the computer! RIGHT? Can they? HMMMM! Makes me wander! Food for thought! Might want to post this question and answer!

I would fight using the following defense. The RIAA would have to prove what individual is swapping the files, not just that a specific IP is involved. For instance, let’s say the family at IP address has four family members. These family members each have five different friends that come over to the house.

Any of these people had the opportunity to swap these 24 people had an opportunity to swap files using this address, so who is responsible? The owner of a gun is not guilty of a murder someone else commits with it.

The owner of an IP address is no more responsible for file swapping from that IP, much like ISP’s are not responsible for their customers’ actions.

These are both incorrect.

The RIAA lawsuits operate under civil law, not criminal law. What is called the “burden of proof” is much lighter in a civil case than in a criminal case.

The legal standard to win a civil case is “preponderance of the evidence.” This means one side of the story is more likely and believable than the other.

In criminal cases, you have to show that a defendant is guilty “beyond a reasonable doubt”. This means that the jury or judge has to be sure that the defendant is guilty.

Per who is liable, it doesn’t matter who did it, if it’s your computer, you’re responsible for it. It’s just like auto insurance; if you lend your car to someone, and he gets into an accident, it’s your responsibility.

In most U.S. states, there are also parental responsibility laws. If their minor child causes financial damages, the parents can be held financially responsible up to a certain dollar amount (usually somewhere in the low thousands).

“I’m OK If I Own It”

I was just wondering if you had ever posted up the specifics of what laws
were actually broken when someone shares a music file. You are entitled to
backup your music regardless of copy protection measures. I thought the
only way you could really be breaking a law is if you were in possession of
music you didn’t own rights to. So how can you be sued for sharing files
you have rights to?

You aren’t making any money off of the files by
selling them and I had always thought it was up to the downloaders to prove
they owned the songs. What specific law is being broken by sharers ? If I
loan someone a cd of mine in real life am I breaking the law ? If I loan
them the CD and then they copy it to keep without my knowledge and keep it
am I breaking the law somehow ?

No, downloading is NOT OK even if you own it. The reason why is quite simple. You may have a fair use right to physically copy material you own. That does not give you the right
to copy somebody else’s work, or let someone else copy it.

So running out and buying CDs covering the music listed in any lawsuits does you absolutely no good.

Prior to 1998, for criminal prosecutions, profit was indeed a necessary factor in a conviction. This was changed by the
DMCA in 1998. There is no longer any need to show that the “sharer” profited by doing this.

For civil lawsuits dealing with copyright infringement, profit or lack thereof would be a factor in determining how much of an award a court could grant, but
not in determining whether or not copyright infringement occurred. There is a minimum fine of $750 per incident.

How Much?

If they went after me, I’d fight them in court over the value of each song. I would think both P2P and the RIAA would be very interested in this. There’s a very solid chance that I would do better this way, especially since they’ve lost price fixing cases.

The figure of $150,000 per violation that’s been mentioned is not a number the RIAA came up with. It’s the maximum punitive amount (i.e., sum meant to punish, not to compensate for actual economic loss) per violation established by U.S. law.

There’s also a minimal amount RIAA can decide to go for, $750 per violation.

I’ve Been Spoofed!…

I’ve Been Spoofed!

The most plausible that comes to mind is IP Masquerading. Some one stole my IP and did this terrible thing. That could hold water up until the computer equipment is seized and the MP3 are found on it. Unless the one caught was wise enough to wipe there HD and not just delete the files.

It would be pretty simple to copy these mp3 to a few cds which can be hidden anywhere, save the few most important things on your comp and format the drive using the 1 and 0 or whatever it is called; when the lawyers come calling they aint got no evidence.

Any fool can figure this out

I’m naturally stubborn, so I would probably try a defense by
obfuscation. I could install my own backdoor proxy server on my computer
and take records to court “proving” that I was maliciously “hacked” and
used as a front for someone else’s mp3 downloading.

An untested legal issue is how willing courts are to accept ISP records as definitive evidence in a civil lawsuit or criminal case.

For purposes of a lawsuit, though, consider what a defense would have to say:

“Some mean hacker IP spoofed me, downloaded Kazaa, installed it, downloaded tons of MP3s, made them available for sharing, and I never noticed anything!

Oh, there’s no record of the guys who did this ever bothering to redownload all the files they had my machine copy? My, aren’t they sloppy!

Again, for a civil case, it’s preponderance of the evidence. How believable is your story?

There seems to be this belief that if you can come up with some cockamamie story that would get you off the hook, that gets you off the hook. Wrong.

If you just come up with a lame story, and provide no evidence to back it up (and remember, that evidence could be quite incriminating in other ways), you just have a lame story. That might help a bit in a criminal trial, but little to not at all in a civil lawsuit.

If you fake such a spoof, and you get caught, that’s fraud, and you’ll likely be in court another day on a criminal charge for that.

As per wiping hard drives, it really doesn’t help you since the case is based on what you did before, which shows up on the ISP records, but destruction of evidence (called “spoilation of evidence” can get you into even deeper trouble)

I’ll Go Bankrupt!…

I’ll Go Bankrupt!

For me it would be a no brainer. I have a lot of credit card debt already. . . . I would go to court, lose for big dollars, and then declare bankruptcy. It would actually be a financial windfall for me and wouldn’t affect my life very much.

Bankruptcy doesn’t automatically clear court-ordered fines and restitution against you. It’s not clear after a quick check whether or not bankruptcy would remove this particular fine, check with a lawyer first.

All of The Above and More

1 Prove that the file being shared is an exact duplicate of the one you own.

2 Prove that the file doesn’t just share the same name as the one you own.

3 Prove that My ISP didn’t make a mistake. (I’m sure most ISP’s will have a temp handling RIAA requests)

4 I have the Right to face My accuser so I’m going to ask to subpoena all the artist that I infringed upon. (Barry White, 2 pac, Biggie, Marvin Gaye, Bob Marley) Get it.
5 Prove it wasn’t a hacker whose smarter that your snooping technology. How accurate is it?

6 Prove that your copy written material was ever on my PC.

7 Here is a silly one but I’ll throw it out there. My IP address is copy written to Me and by the RIAA capturing it is an infringement because I give permission to all except the RIAA the MPAA thus punishable by the same means.

I said all this to say that the first people the RIAA goes after may not have the financial support but their will be a VAST WEALTH of legal information in forums and elsewhere to keep the RIAA busy for years.

ALSO my 61 year old mother is home on HOSPICE dying of cancer. She has no money and a short time to live. What if a hot spot was created at her house for downloading?

You are correct about it being a lose lose situation but only for the stupid.

1. Unnecesary. Unless it fits a fair use definition, any approximately complete copy constitutes copyright infringement.
2. In a criminal case, they probably would have downloaded the file for proof. In a civil case, the burden of proof would be on the defendant.
3. The ISP’s evidence would be available for perusal, and again, the burden of proof would be on the defendant to show that the evidence wasn’t good.
4. This is going back to medieval English criminal law. This is a civil law case, and the RIAA is the duly appointed representative of any artists in question. No such right.
5. Again, burden of proof belongs to the defendant.

6. The RIAA scan would be submitted as evidence of that. Also remember what I said earlier about destruction of evidence.
7. He got it right the first time.:)

These lawsuits are going to show how worthless that “vast wealth” of legal knowledge is.

Hmmmm. Makes you wonder how old this person is. Unless he was the result of an extremely late pregnancy, Mommy bought his computer for him?

This comment was unintentionally accurate. 🙂

The only possibly legitimate point of the bunch, the make-or-break issue in these cases is going to be the admissibility of the ISP information as evidence. That will probably not be too much of a problem.

The court will presume that such records are accurate unless given reason to believe that they aren’t. That’s the job of the defendant, and if his answer to such evidence is essentially, “I wiped my hard drive,” that’s likely to get him in more, not less trouble.

Going Down For The Cause…

Going Down For The Cause

I’d go to court. I’d represent myself, fully expecting to lose. I have
some relatives who are attorneys, but I’m being conservative and assuming
I’d be on my own.

My goal would be to make my little legal infraction as
costly as I could for them, hence actually going to court. They’d attach my
wages (once I actually earn wages) and I’d just have to bear that cross.

My hope would be that enough people like me would drag the ordeal out and make
it cost the RIAA good money today to win my garnished wages later. Yes, I’d
be little more than fodder in the big picture, but maybe useful fodder,
unlike if I just paid the $2k fine and fed the monster. Besides, dragging
the ordeal out might even buy time for a miracle, for example some courts
might be choked by this mess and step in to change something, etc. I
realize that hope is doubtful at best, but when you’re on the losing end to
start with, even a pesky delay or trivial expense to your enemy seems
worthwhile (to me).

I got ONE note like this.

Pissing On The Electric Fence

A lot of people are on a collision course with reality.

Theft is against the law. This is considered theft under the law. Sometimes the law can take a while to deal with a new problem, but that moment is upon us.

The war is starting.

Some realize this. Kazaa use is down 20%.

Most don’t.

People ask, “Why do you keep talking about this?” Or they ask, “Why are you on RIAA’s side?”

The answer to the first question is that I don’t want to see people getting their lives messed up on this issue, and I know it’s going to start happening now.

More importantly, it’s not like other people in this arena are telling you what I’m telling you. No, they tell you what you want to hear.

It would be much easier to pander to you like all the other places and call the RIAA bad names and tell them to go away.

But I would a liar and a fraud if I did that. In all probability, most of those who do that don’t know any better. But I do, and I’m not going to lie to you about it.

I wish you could step inside my shoes when I read some of the “defenses” people seriously think will work. I just think, “Lord, forgive them, for they know not what they do.” Unfortunately, you’ll be dealing with someone more like Judge Judy than Jesus.

The answer to the second question is that I’m not on RIAA’s side, I’m on the side of the rule of law. Well-functioning societies obey and enforce laws. Badly-functioning societies don’t.

But even if I weren’t, what I’m mostly doing is saying, “RIAA is going to punch you in the face, duck!” Friend or not, how am I on RIAA’s “side” by telling you that? If I were truly on their side, I’d keep my mouth shut and let them hit you without giving you any warning.

We’re going to see the enforcement start. And at least a few of you initially, maybe a lot more later on, are going to find out the hard way what happens when laws get enforced.

In the next few weeks, I guarantee there’s going to be a few people in this computer hardware community that are going to have a lawsuit in their face. For those people, it’s going to be too late.

And as these cases progress, you’re all going to get a legal education, and a few are going to pay for the rest. Then a few more, then a few more after that . . . .


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