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Mr Luzcious
08-17-2007, 10:27 AM
http://arstechnica.com/news.ars/post/20070817-riaa-faces-first-class-action-suit.html

RIAA faces possible class action over suing the innocent (http://arstechnica.com/news.ars/post/20070817-riaa-faces-first-class-action-suit.html)

By Nate Anderson (http://arstechnica.com/authors.ars/Nate+Anderson) | Published: August 17, 2007 - 09:05AM CT
The scene at RIAA headquarters this week must have been fascinating. The group yesterday announced that it has finished sending out a new batch of 503 "pre-litigation letters (http://arstechnica.com/news.ars/post/20070306-some-universities-comply-with-riaa-others-do-not.html)" to 58 different universities around the US, generously offering to let students settle copyright infringement claims "at a discounted rate" before those claims go to trial. The letters blanketed the country, going everywhere from the University of Hawaii to Swarthmore, from Boston College to Tulane, from Emory to UC-Chico. And then the RIAA learned that its aggressive litigation tactics have placed it on the receiving end of a class action lawsuit.
Single mom Tanya Andersen, a defendant in a previous lawsuit brought by the RIAA, was one of the first to have her case dismissed with prejudice (http://arstechnica.com/news.ars/post/20070604-riaa-throws-in-the-towel-in-atlantic-v-andersen.html) (it cannot be refiled at a later date). Throughout the court battle, she maintained her total innocence, a claim given even more plausibility by the fact that she was charged with downloading numerous gangsta rap tracks.


After the case was dismissed, Andersen then sued the RIAA for malicious prosecution (http://arstechnica.com/news.ars/post/20070625-exonerated-defendant-sues-riaa-for-malicious-prosecution.html), and her attorney filed court documents in an Oregon federal court on Wednesday that seek to elevate the case to class action status.
The development, first reported by p2pnet (http://www.p2pnet.net/story/13077), hopes to make a class out of those "who were sued or were threatened with sued by Defendants for file-sharing, downloading or other similar activities, who have not actually engaged in actual copyright infringement." In other words, a class of the innocent. In the complaint, Andersen alleges that the RIAA "has engaged in a coordinated enterprise to pursue a scheme of threatening and intimidating litigation in an attempt to maintain its music distribution monopoly."
Andersen is also going after the RIAA's investigative arm, SafeNet, formerly known as MediaSentry. This group allegedly "conducts illegal, flawed and negligent investigations for the RIAA and its controlled member companies" and has also featured in past complaints (http://arstechnica.com/news.ars/post/20070704-riaa-sued-for-using-illegal-investigatory-practices.html).
Some of Andersen's claims against the RIAA have been tried by other defendants (http://arstechnica.com/news.ars/post/20070604-florida-defendant-goes-after-riaa-for-fraud-conspiracy-and-extortion.html) who chose to fight back, but this is the first time that a judge has been asked to consolidate such lawsuits into a class action.
Proving many of these charges will be difficult. Andersen alleges that the RIAA has violated the RICO racketeering act, but we have previously discussed why this will be hard to prove (http://arstechnica.com/news.ars/post/20070506-riaa-extortion-why-the-only-rico-they-fear-is-suave.html). The charge of malicious prosecution could be a bit easier, though Andersen (and other defendants, if the class is certified) will have to show a pattern of willful behavior by the RIAA, something that could be very difficult without having an insider from the organization "flip."
Should the case eventually be certified as a class action, it would bring a whole new kind of negative attention to the RIAA's legal campaign. The fact that the class specifically includes only those who have not committed copyright infringement will certainly go a long way toward making this look like David v. Goliath redux. Whether deserved or not, these sort of cases are giving the RIAA a reputation for suing innocent people, a perception that a class action suit would only heighten. Expect a vigorous defense from the association.

Mr. Laz
08-17-2007, 10:35 AM
:clap:

i hope they win and take them for a billion

DaneMcCloud
08-18-2007, 01:56 AM
:clap:

i hope they win and take them for a billion

And arstechnica is the source of such incredible information :rolleyes:

But sure, yeah, that would be great. No artists would ever receive their due royalties, record companies would lose profits and no new acts would be signed.

Everything's free! You're a genius! :shake:

Adept Havelock
08-18-2007, 10:23 AM
Excellent. If the RIAA wants to take this approach, they should also pay through the nose when they f**k up as they did here. Maybe next time they will be more certain of themselves before throwing out more lawsuits.

And yes, arstechnica is a pretty damn good source. Even when they piss in Dane's cheerios. ;)

memyselfI
08-18-2007, 06:11 PM
Good, sue the pants off the MOFUs. :clap: :clap: :clap:

big nasty kcnut
08-18-2007, 07:55 PM
I think that riaa is right to protect music but they also should let people who already own the media they have be free to trade as long as it not use for resale and to cut profit for the artists who made the product.

the Talking Can
08-18-2007, 08:23 PM
And arstechnica is the source of such incredible information :rolleyes:

But sure, yeah, that would be great. No artists would ever receive their due royalties, record companies would lose profits and no new acts would be signed.

Everything's free! You're a genius! :shake:


ROFL

there is a whole world of music and record labels beyond NSYNC and Brittney Spears....good lord, chicken little...

KC Jones
08-18-2007, 10:33 PM
No artists would ever receive their due royalties, record companies would lose profits and no new acts would be signed.

I have some bad news for you Dane. The genie is out of the bottle. Digital formats are here to stay, and that means the entire industry needs to adapt. These ridiculous gangster tactics by the RIAA are attempting to hold back the tide of a new reality. Today it is so much easier to create and distribute music, the record labels aren't much of a necessity. There's still plenty of money to be made in music, but it's not going to be made by trying to turn back the clock.

pikesome
08-18-2007, 11:24 PM
And arstechnica is the source of such incredible information :rolleyes:

But sure, yeah, that would be great. No artists would ever receive their due royalties, record companies would lose profits and no new acts would be signed.

Everything's free! You're a genius! :shake:

Ars Techinca is about as top flight news as you can get on the web, at least for geek related stuff.

The artists ought to ask where their cut of the money the RIAA has been collecting is.

Or we could ask TLC about how well the RIAA looks out for the artists.

Nightwish
08-19-2007, 12:37 AM
I have some bad news for you Dane. The genie is out of the bottle. Digital formats are here to stay, and that means the entire industry needs to adapt. These ridiculous gangster tactics by the RIAA are attempting to hold back the tide of a new reality. Today it is so much easier to create and distribute music, the record labels aren't much of a necessity. There's still plenty of money to be made in music, but it's not going to be made by trying to turn back the clock.
I suspect you're right, and I've long suspected that that's what the RIAA is really about. They aren't as much about protecting the artists as they want you to think, and are more about protecting the labels as the only legitimate outlet for merchandising and distributing music. There are tons of bands out nowadays who prefer to market their music through the p2p networks and other online ventures, thus cutting out major labels. But if people are afraid to use p2p networks (even legitimately) out of fear of malicious prosecution, then those aforementioned bands will lose their audience and their market, unless they submit to the major labels. Basically, the RIAA is trying to eliminate their competition.

Cochise
08-19-2007, 01:09 AM
Excellent. If the RIAA wants to take this approach, they should also pay through the nose when they f**k up as they did here. Maybe next time they will be more certain of themselves before throwing out more lawsuits.

And yes, arstechnica is a pretty damn good source. Even when they piss in Dane's cheerios. ;)

Yeah, my overall impression here is that there's wrong happening on both sides. Obviously, there is some IMO indefensible theft happening, but we also shouldn't allow a corporate entity to push people around just by the prospect of burying them in legal fees or on the chance of a judgement they can't possibly afford.

Simplex3
08-19-2007, 05:23 AM
Yeah, my overall impression here is that there's wrong happening on both sides. Obviously, there is some IMO indefensible theft happening, but we also shouldn't allow a corporate entity to push people around just by the prospect of burying them in legal fees or on the chance of a judgement they can't possibly afford.
Bulls**t. The govt. let DirecTV sue people for years. Their crime? Owning things that MIGHT be able to let you steal their signal.

http://www.cbsnews.com/stories/2003/10/10/eveningnews/consumer/main577599.shtml

Basically DirecTV would send the feds into small smart card distributors under bulls**t DMCA raids, then DirecTV would be handed the entire customer list. Using that list DirecTV would send every customer a letter stating that you were pirating their signal. If you sent them a check for $3,500 and all of your smart card equipment, they wouldn't sue you.

http://www.theregister.co.uk/2003/07/17/directv_dragnet_snares_innocent_techies/
If the recipient calls the phone number on the letter, they're given a settlement offer -- usually the same $3,500 that Sosa paid. If they don't pay up, or if they ignore the letter entirely, another letter arrives in the mail as a reminder that settling with the company is the only way to resolve the matter "without either of us incurring significant legal costs." If the recipient still doesn't play ball, the company makes good on its threat and files a lawsuit. At that point, the settlement price tag jumps to $10,000 -- still less than the typical cost of paying a lawyer to go to trial against a corporate powerhouse in federal court.

DirectTV has sent out tens of thousands of these demand letters, and filed lawsuits against over 8,700 people around the country, most of them in the last six months. "The veil of anonymity has been lifted," says company spokesman Robert Mercer. "We believe that this really does send a very strong message to consumers that they can't steal DirecTV's signal with impunity."

Imagine how much money DirecTV made on this scam. The taxpayers covered the cost of the raids, and all DirecTV had to do was send out letters. Sure, they had to sue some people to keep the threat real, but DirecTV made tens of millions of dollars screwing people without any evidence of a crime.

Stanleychief and I were working on a smart card project around that time and he got that letter. It took us weeks dealing with those assholes, including exposing all of our internal documentation, business plans, etc. before they finally gave up, though they never admitted we were in the clear. Basically they just faded away.

The DMCA is certainly in the top 5 worst laws ever passed in this country.

KC Jones
08-19-2007, 07:38 AM
The DMCA is certainly in the top 5 worst laws ever passed in this country.

DING DING DING

patteeu
08-19-2007, 10:13 AM
Artists are best when they're starving anyway.

Adept Havelock
08-20-2007, 03:14 PM
Artists are best when they're starving anyway.

Especially when they are hungry enough to eat lawyers, or those trained in the dark arts.

Baby Lee
08-20-2007, 04:35 PM
And arstechnica is the source of such incredible information :rolleyes:

But sure, yeah, that would be great. No artists would ever receive their due royalties, record companies would lose profits and no new acts would be signed.

Everything's free! You're a genius! :shake:
Are you seriously advocating immunity for malicious prosecution of people who did not do what they're accused of, for the sake of retaining profits?

DaneMcCloud
09-05-2007, 04:14 PM
Are you seriously advocating immunity for malicious prosecution of people who did not do what they're accused of, for the sake of retaining profits?

No.

Adept just hipped me to this question. I apologize for not checking back on this topic or responding.

Firstly, I was responding to the first post by Laz's hoping that the RIAA be sued for "a billion". Not the allegations of an unwarranted lawsuit.

As I just posted in the DC forum, I think the RIAA should be responsible for their actions in that scenario. I don't think they should be protected from monetary compensation or a counter-suit if their allegation are unfounded. Damages, of course, should be left up to a judge.

I have some bad news for you Dane. The genie is out of the bottle. Digital formats are here to stay, and that means the entire industry needs to adapt. These ridiculous gangster tactics by the RIAA are attempting to hold back the tide of a new reality. Today it is so much easier to create and distribute music, the record labels aren't much of a necessity. There's still plenty of money to be made in music, but it's not going to be made by trying to turn back the clock.

Um, no. The record labels are just as necessary today as they were in the past. While there is a sea of music (most of it unlistenable) available on the internet, the vast majority of new artists still need the marketing arm of a record label to be successful as well as the budget that a major label provides for a top-notch producer and recording studio.

Additionally, the music business is a still a multi-Billion dollar industry. And while they've lost a few percentage points in sales in the past several years, we're still talking billions. The major labels and distributors (Sony, Uni, WB & EMI) aren't going anywhere soon.

ROFL

there is a whole world of music and record labels beyond NSYNC and Brittney Spears....good lord, chicken little...

Ah, young padawan, so much have you to learn.

"Superstar Groups", for lack of a better term, pay for all the non-selling, "vanity" artists. Without acts like Nickelback, Creed, Alanis Morrisette, Gwen Stefani, Brittany, Justin, and so on, no one would hear band that don't sell well. Bands that are allowed to grow and build an audience. It's very much a Catch-22.

I think that riaa is right to protect music but they also should let people who already own the media they have be free to trade as long as it not use for resale and to cut profit for the artists who made the product.

Again, no. Record labels have upwards around $1 million dollars invested into a brand new band (producer, recording studio and marketing). It would not be wise to allow this music to be free for sharing. What kind of business model is that? How would the record company (financier) recoup its investment?

And for the record, I'm not endorsing the RIAA's "strong-arm tactics". But until someone comes up with a better way of policing this out-of-control issue, I don't think there will be an alternative.

Last time I checked, the good people at Wal-Mart don't let you just walk out of the store with a CD in hand without paying. Right?

Adept Havelock
09-05-2007, 04:19 PM
Last time I checked, the good people at Wal-Mart don't let you just walk out of the store with a CD in hand without paying. Right?

No, but they don't file a lawsuit against me or have me arrested just on the off chance that I "might" have stolen a CD either. ;)

They make damn sure they can back up an accusation as should the RIAA. Instead, the RIAA has found this to be a simple way of trolling for easy money as pointed out in the "Smart cards" example. They gambled, they lost. Profit by the lawsuit, die by the lawsuit.

Wouldn't bother me in the least if they got smacked big time for filing frivolous lawsuits.

Heck, it might even encourage them to join the 21st century as far as their business model is concerned.

DaneMcCloud
09-05-2007, 04:21 PM
No, but they don't file a lawsuit against me or have me arrested just on the off chance that I "might" have stolen a CD either. ;)

They make damn sure they can back up an accusation as should the RIAA. Instead, the RIAA has found this to be a simple way of trolling for easy money as pointed out in the "Smart cards" example. They gambled, they lost. Profit by the lawsuit, die by the lawsuit. Wouldn't bother me in the least if they got smacked big time for filing frivolous lawsuits.


No, but they do call the cops if you're caught trying to steal a CD though, right?

As I stated earlier, I'm not a fan of the RIAA's "strong-arm" tactics but that's what we'll have to deal with until another solution presents itself.

Adept Havelock
09-05-2007, 04:27 PM
No, but they do call the cops if you're caught trying to steal a CD though, right?.
I'm pretty sure I stated that when I said that Wal-Mart makes damn sure of themselved before making an accusation like that. Unlike the RIAA.

As I stated earlier, I'm not a fan of the RIAA's "strong-arm" tactics but that's what we'll have to deal with until another solution presents itself.


You're not a fan of the tactics. You're just an apologist for them. :rolleyes:

DaneMcCloud
09-05-2007, 04:37 PM
I'm pretty sure I stated that when I said that Wal-Mart makes damn sure of themselved before making an accusation like that. Unlike the RIAA.

So you don't think that an employee of Wal-Mart, Costco, K-Mart or any retail chain has EVER wrongfully accused someone of stealing? EVER??

I find that EXTREMELY hard to believe.

You're not a fan of the tactics. You're just an apologist for them. :rolleyes:

Apologist? Huh?

This is the system that's in place. I don't work for the RIAA and haven't worked on the "Business" side of the music business since 2003. MY only concern is that artists and composers of illegally downloaded music receive their fair share of royalties. Honestly, I could care less about profits to the record companies.

If the RIAA wants to bring frivolous lawsuits without proof, I have no sympathy if everyone falsely accused decides to bring one of the cheesy "massive damages" counter-suit or class-action against them. I'd laugh long and hard, because the RIAA is just bringing it on themselves.

JMO, but I doubt you'd tolerate this behavior from any industry you didn't have a personal stake in (Entertainment industry). Would you tolerate a Police Force that tossed you in jail on the suspicion that you might have committed a crime, though they had no evidence? That's essentially what you are defending because the poor little dears "have no other choice".

People are wrongly accused of crimes everyday. People have unfortunately gone to jail for crimes they did not commit. Are you an advocate of those people or just people that have been wrongly accused of illegally downloading music?

Adept Havelock
09-05-2007, 04:44 PM
People are wrongly accused of crimes everyday. People have unfortunately gone to jail for crimes they did not commit. Are you an advocate of those people or just people that have been wrongly accused of illegally downloading music?

Indeed I am. Do you consider those unfortunate people (as you put it) "what we'll have to deal with until another solution presents itself."?

BTW- That's the line that makes you an apologist for the tactics. "It's so sad, but there's no other choice than to bring frivolous lawsuits without proof". :rolleyes:

Brock
09-05-2007, 04:50 PM
So you don't think that an employee of Wal-Mart, Costco, K-Mart or any retail chain has EVER wrongfully accused someone of stealing? EVER???

If they did, do you think Wal Mart would then demand restitution in the amount of 10 thousand dollars for a CD?

DaneMcCloud
09-05-2007, 05:05 PM
If they did, do you think Wal Mart would then demand restitution in the amount of 10 thousand dollars for a CD?

I guess if they stole the monetary equivalent.

DaneMcCloud
09-05-2007, 05:07 PM
Indeed I am. Do you consider those unfortunate people (as you put it) "what we'll have to deal with until another solution presents itself."?

BTW- That's the line that makes you an apologist for the tactics. "It's so sad, but there's no other choice than to bring frivolous lawsuits without proof". :rolleyes:

Seriously? Good for you!

What I meant by that is that either the record companies band together to find another means of prohibiting illegal distribution or the RIAA will unfortunately continue down this path.

Not apologizing. If you have a better solution to present to the record companies and RIAA, by all means, present it.

Brock
09-05-2007, 05:25 PM
I guess if they stole the monetary equivalent.

750 dollars per song.

DaneMcCloud
09-05-2007, 05:39 PM
750 dollars per song.

While that appears to be excessive, it's probably more than likely that a single song that's been shared over a college or university network had been downloaded by more than 750 people.

Bob Dole
09-05-2007, 05:53 PM
Apologist? Huh?

This is the system that's in place. I don't work for the RIAA and haven't worked on the "Business" side of the music business since 2003. MY only concern is that artists and composers of illegally downloaded music receive their fair share of royalties. Honestly, I could care less about profits to the record companies.

Has anyone seen the percentage of the RIAA's recoveries from these lawsuits that are actually being paid to the artists and composers?

DaneMcCloud
09-05-2007, 05:57 PM
Has anyone seen the percentage of the RIAA's recoveries from these lawsuits that are actually being paid to the artists and composers?

Nope, I haven't. I left the business before these payments came down the pike. But since the RIAA is not-for-profit, I imagine that a fairly sizable amount goes to the record companies and publishers.

I could probably make a few calls, if you're really interested.

Bob Dole
09-05-2007, 06:09 PM
Nope, I haven't. I left the business before these payments came down the pike. But since the RIAA is not-for-profit, I imagine that a fairly sizable amount goes to the record companies and publishers.

I could probably make a few calls, if you're really interested.

Bob Dole is confident that the labels are getting checks. The question is (going back to your original statement about your support): How much is actually making it back to the artists and composers?

Bob Dole would honestly like to know.

DaneMcCloud
09-05-2007, 06:20 PM
Bob Dole is confident that the labels are getting checks. The question is (going back to your original statement about your support): How much is actually making it back to the artists and composers?

Bob Dole would honestly like to know.

Well if it's making it to the labels, then all of it.

Every artist and composer who's signed to a record company or publisher has audit rights. That means that Don Henley or Joe Schmo has the right to hire an accountant to look at the actual royalty statements, make claims and ask for royalty adjustments. Since this is a high-profile source of income, it would be very unwise for the record companies not to pay the proceeds of the recovery efforts made by the RIAA. An auditor or law firm would have a field day with the media if said royalties weren't released.

In the case of music publishers, the record companies are required to send quarterly statements and royalty checks to the Harry Fox Agency. HFA then processes each check and royalty statement and sends those on to the music publishers. Once the music publishers receive said checks and statements, they are processed. Royalty checks and statement by music publishers are paid twice a year to their affiliated composers.

Bob Dole
09-05-2007, 06:25 PM
Well if it's making it to the labels, then all of it.

Every artist and composer who's signed to a record company or publisher has audit rights. That means that Don Henley or Joe Schmo has the right to hire an accountant to look at the actual royalty statements, make claims and ask for royalty adjustments. Since this is a high-profile source of income, it would be very unwise for the record companies not to pay the proceeds of the recovery efforts made by the RIAA. An auditor or law firm would have a field day with the media if said royalties weren't released.

In the case of music publishers, the record companies are required to send quarterly statements and royalty checks to the Harry Fox Agency. HFA then processes each check and royalty statement and sends those on to the music publishers. Once the music publishers receive said checks and statements, they are processed. Royalty checks and statement by music publishers are paid twice a year to their affiliated composers.

You think the settlements are being broken all the way down to a per-song basis? That's what would have to happen for them to pay appropriate royalties.

DaneMcCloud
09-05-2007, 06:32 PM
You think the settlements are being broken all the way down to a per-song basis? That's what would have to happen for them to pay appropriate royalties.

Well, in the case of the Mp3.com and Napster settlement, there was a lump sum paid to the publishers. I was given a list of the affiliated songs and the time period in which they were illegally downloaded. I then looked at the domestic mechanical royalty income for each song during that time period and created a spreadsheet that included the total earnings of each song during that period versus the total earnings of all affected songs. I then calculated the percentage of each song to total earnings and applied that to the total settlement value. I felt it was fair.

I *assume* that each company is paying their respective artists and composers in the appropriate manner, but if I felt that *my* royalties weren't being paid properly, I'd most certainly hire an auditor.

Bob Dole
09-05-2007, 10:20 PM
Well, in the case of the Mp3.com and Napster settlement, there was a lump sum paid to the publishers. I was given a list of the affiliated songs and the time period in which they were illegally downloaded. I then looked at the domestic mechanical royalty income for each song during that time period and created a spreadsheet that included the total earnings of each song during that period versus the total earnings of all affected songs. I then calculated the percentage of each song to total earnings and applied that to the total settlement value. I felt it was fair.

I *assume* that each company is paying their respective artists and composers in the appropriate manner, but if I felt that *my* royalties weren't being paid properly, I'd most certainly hire an auditor.

That's a big assumption, given the way the typical "signed artist" gets treated.

Bob Dole isn't trying to slam your position, because Bob Dole agrees that the composers and artists should be compensated. Bob Dole is just questioning whether the settlement dollars are actually trickling down to the people that they claim this whole thing is meant to support.

Kind of like the whole smoking ban thing that's advertised as "protecting the working folks from secondhand smoke", but we all know that's complete crap.

No offense, but Bob Dole thinks your assumption is a little naive. When did any label really give half a shit about compensating their signed talent for their art?

DaneMcCloud
09-05-2007, 10:39 PM
That's a big assumption, given the way the typical "signed artist" gets treated.

Bob Dole isn't trying to slam your position, because Bob Dole agrees that the composers and artists should be compensated. Bob Dole is just questioning whether the settlement dollars are actually trickling down to the people that they claim this whole thing is meant to support.

Kind of like the whole smoking ban thing that's advertised as "protecting the working folks from secondhand smoke", but we all know that's complete crap.

No offense, but Bob Dole thinks your assumption is a little naive. When did any label really give half a shit about compensating their signed talent for their art?

Well Bob, I can tell you for a fact that's exactly what happened when I worked for one of the top five music publishing companies in the world. I worked for Universal/MCA (I was on with a VP from Uni when I noticed the post) and for Famous Music for over 10 years and I can tell you that I saw absolutely NO impropriety on the part of anyone in copyright, business affairs, finance or royalties.

Honest mistakes? Yes. But they were ALWAYS corrected and overseen by superiors. You have no idea what it takes to maintain and pay composers properly for a catalog of over 3 million songs but I can honestly tell you that each and every person employed by these companies are passionate about music and passionate about their jobs. There are VERY few people that work for music companies that aren't musicians themselves and most are very much in touch with what it means to have a successful career and certainly don't wait to be involved with depriving an artist or composer of their due monies.

The only time artists and composers AREN'T compensated properly in today's is when their so-called management gets it the way. There are hundreds and thousands of stories out there where bands unknowingly sign their rights away to a manager or agent. Young people especially have a tendency to "sign on the dotted line" without proper legal representation.

Feel free to ask any questions that you may have on the subject, as I've supervised and been on the other side of audits and other projects. And while mistakes were made, no one ever withheld funds from the deserving parties.