dmca and copyright laws question

Discussion in 'Amateur Video Production' started by trustno1, May 24, 2004.

  1. trustno1

    trustno1 Guest

    A client is asking me to put music on a project that he does not have
    rights to. He thinks that the DMCA says that you can use up to 10
    seconds of music without permissions, licensing, etc., and I think
    that you cannot use ANY.

    If someone can help shed some light, or better yet, point me to a
    resource that states what the DMCA says about this...

    THANKS!
     
    trustno1, May 24, 2004
    #1
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  2. trustno1

    The Videoguy Guest

    I have no references at the moment, but from what I have heard/read you are
    right. There's plenty of royalty free stuff out there to use.
     
    The Videoguy, May 24, 2004
    #2
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  3. Especially if you need only 10 seconds worth!
     
    Richard Crowley, May 24, 2004
    #3
  4. trustno1

    Nomen Nescio Guest

    See <http://www.dpi.state.nc.us/copyright1.html>

    | Music
    |
    | * Up to 10% of a copyrighted musical composition, but no more than
    | 30 seconds
    | * Up to 10% of a body of sound recording, but no more than 30
    | seconds
    | * Any alterations cannot change the basic melody or the
    | fundamental character of the work

    IANAL. I would contact one prior to accepting the above. The *AA has a
    history of illegally suing people.
     
    Nomen Nescio, May 24, 2004
    #4
  5. trustno1

    Jay Rose CAS Guest

    I am amazed that people are quoting this URL in the context of clients
    wanting copyrighted music in their commercial videos.

    THIS IS ABOUT FAIR USE FOR EDUCATIONAL PURPOSES IN A CLASSROOM, PEOPLE! It
    has to do with how much of a copyrighted composition you can quote when
    talking about the composition, the production techniques, or the musical
    context. Not about scoring the video.

    In fact, if you scroll down on that page, you'll see that it doesn't apply
    to commercial productions... or even productions that are going to be
    duplicated.
     
    Jay Rose CAS, May 24, 2004
    #5
  6. trustno1

    Tony Guest

    Don't let the people saying you can use a little bit under "fair use" fool
    you: This does NOT apply to synchronization rights, which is what you are
    doing. If you are to do this, you will be opening yourself to direct
    liability should the RIAA or the original artist decide to sue you - and it
    doesn't matter if you are doing it at a client's request, or even if you get
    some sort of indemnity from the client.

    As I recall, without looking at the copyright law, you can be sued for
    $250,000 just for the infringement, regardless of any actual damages.

    I would strongly suggest reading the similar thread (and the one about
    videotaping plays) in rec.video.production, or perhaps asking your question
    there. Paul Tauger is a regular to that forum and he is a copyright
    attorney. While he won't (can't) give legal advise, I think he will agree
    that ANY use is probably illegal under the law - or at least NOT clearly
    exempted, and therefore subject to suit.

    Think about this, too - even IF you are covered under fair use, you can
    still be sued (being covered would be up to a Judge to determine, the law is
    rather vague). At that point, do you think you could win, even if you were
    right?

    Better not to assume the liability, IMO...
     
    Tony, May 24, 2004
    #6
  7. trustno1

    PTRAVEL Guest

    When has the RIAA sued someone "illegally"?

    And, in any event, there is no magic percentage that will constitue fair
    use. I took a quick look at the site, and there's a lot that's just plain
    wrong.

    1. Fair use doesn't require attribution.
    2. Educational fair use generally requires that the use be spontaneous,
    i.e. not part of the regular curriculum.
    3. Fair use does not "end" when the fair user loses control of the work.
    For example, citing a portion of protected work in a published review is,
    and remains, fair use, despite the fact that it is distributed by
    publication, including over the internet.
    3. All the so-called "guidelines" that list amounts that may be copied
    under fair use are completely wrong and without any legal basis whatsoever.
    As little as one paragraph quoted in a review of an entire book has been
    held to be outside of fair use. See Harper v. Nation. It is also possible
    to use a protected work in its entirety and still be within fair use. See
    Sony v. Universal.
    4. Numerical data sets are not protectable under copyright, though the
    sequence and arrangement of such sets may be.
    5. Certain fair uses may be published on unsecured websites without
    violating laws.
    6. Certain fair uses may be reproduced without limit without incurring
    liability.
    7. No notation of alteration to the original work is required to be placed
    in the presentation if it is fair use.
    8. No attribution is required.
    9. No copyright notice is required.
    10. No copyright information is required.
    11. If it is fair use, permission of the copyright owner is required.

    Whoever published the site knows little about law. More than likely, these
    are guidelines that the NC public schools have put in place as their own
    policies, but most are unrelated to, and not required by, law.
     
    PTRAVEL, May 24, 2004
    #7
  8. trustno1

    Nomen Nescio Guest

    When someone (normally a big company) sues someone (normally a Joe
    Average), and prior to filing the lawsuit knows they have no chance of
    winning it should it go to trial but they know that the opponent will
    settle prior to trial because it will be far cheaper to do so than
    fighting it, then the lawsuit is illegal.

    The RIAA/MPAA has done the above.
     
    Nomen Nescio, May 25, 2004
    #8
  9. trustno1

    Cory Guest

    A client is asking me to put music on a project that he does not have
    Just ask the management company of the artist for permission. Its simple,
    and I've never gotten turned down.
    //cory
     
    Cory, May 25, 2004
    #9
  10. trustno1

    PTRAVEL Guest

    I agree, it would be malicious prosecution.
     
    PTRAVEL, May 25, 2004
    #10
  11. trustno1

    Nomen Nescio Guest

    Everytime they've filed suit based on a ALLEGED LIST/FILENAMES of songs a
    defendent's computer rather than actually downloading the songs and seeing
    if they are acutally the songs the list claims they are.

    In criminal court, It's no different than getting arrested with the ONLY
    evidence being the cops have a picture of you holding bag of white powder
    on it that has a big label on it that says "COCAINE".

    In civil court, it's no different than getting sued by DirecTV for
    possessing a smartcard reader without any direct evidence it was used for
    satellite piracy purposes
    (<http://www.theregister.co.uk/2003/07/17/directv_dragnet_snares_innocent_techies/>).
    And DirecTV has sued over 24K people using this method
    (<http://www.overhauser.com/DTV/index.html>).

    Go thru the lawsuits complaints and you can see for yourself how the
    RIAA/MPAA works. Most of the time they just grab a list of filenames
    someone is sharing without acutally downloading to see if
    "Master_Of_Puppets.MP3" contains a copyrighted song by the band METALLICA
    or a JPEG of someone taking a crap on Jack Valente's Mercedes.

    The DMCA is a totally screwed piece of legislation
    <http://www.eweek.com/article2/0,1759,1598975,00.asp> and it's the poor
    enduser that is taking it up the tail pipe.
     
    Nomen Nescio, May 25, 2004
    #11
  12. trustno1

    PTRAVEL Guest

    How are they supposed to do that? Have there been a significant number of
    people sued by RIAA whose downloads consisted of non-infringing material
    that all happened to be the names of copyright-protected songs? If so, then
    there is a significant problem. However, I wasn't aware that this was the
    case.
    I don't think this analogy is apt. I think it's a reasonable presumption
    that, if someone downloads files bearing the names of protected songs from
    file-sharing services that distribute protected songs in violation of
    copyright, it's reasonable to assume that the downloaded files are, in fact,
    infringing copies of protected songs.

    As I said, if there are a significant number of people getting sued by RIAA
    for downloading files which, names notwithstanding, are not infringing, then
    the presumption shouldn't apply and there's a signficant problem.
    I haven't reviewed the law as it applies to this situation, but my
    recollection is that, under the DMCA, possession of such a device is
    illegal.
    How many people were sued because they had the jpeg, rather than the
    Metallica song?
    I agree completely. It's bad law. Unfortunately, it is still law.
     
    PTRAVEL, May 25, 2004
    #12
  13. trustno1

    Nomen Nescio Guest

    Uhhhhh. Actually download the song, listen to it, and verify it is a
    copyrighted song for which they have copyrights to. Is that REALLY REALLY
    REALLY too much to ask? When they are getting/asking for $3K+ a suit?
    Would it be reasonable to presume to the point a person is convicted and
    sentenced to "possession of cocaine" with the only evidence being this
    person had a photograph taken of himself with a bag that had the label
    "COCAINE" on it (think: having a file on your computer being shared called
    "Master_Of_Puppets.MP3")? And more so, that the police had the means to
    analyze the contents of the bag (think: the RIAA actually downloading the
    song) but didn't because it would cost more time and money than merely
    snapping a picture?

    What is even worse here is that in the above CRIMINAL case you could get
    FREE legal representation and the police couldn't bleed you for cash by
    filing motions, depositions, etc. You could drag this out as long as the
    plaintiff liked because it is not costing you any cash. In the *AA's
    CIVIL case, you get no free legal representaton to defend the *AA's
    claims. The longer it gets dragged out, the more it costs the defendent
    and the more likely he will settle because $15K in attorney's fees are a
    big deal to "Joe Average" but a drop in the bucket to the *AA's attorneys.
    The RIAA's attorney's would rather force a defendent to pay legal fees
    and bleed him as long as possible versus risking losing one of these
    lawsuits. And if the plaintiff wins, he is automatically entitled to
    getting his attorney fees paid. If the defendent wins, he is not
    automatically entitled to attorney fees. He'd have to file a "malicious
    prosecution" lawsuit which the *AA would drag out forever and would case
    the defendent to bleed cash for years.
    The DMCA applies only to possession of devices whose PRIMARY PURPOSE is
    for bypassing copy-protection. Smartcard readers were in existance PRIOR
    to the existance of DirecTV and their primary purpose is NOT satellite
    piracy. People in the field know this, and of course people who are
    illegally sued are more than welcome to pay an attorney THOUSANDS OF
    DOLLARS to show a judge that this is the case. And if they fail to
    convince a judge by a 51% likelihood, they get to pay plaintiff's
    attorneys fees courtesy of the DMCA. And if they win their case, they are
    NOT entitled to be paid attorney fees courtesy of the DMCA.
    You miss the point. If they sue even ONE based on using songnames only,
    it is WRONG. And to even show a judge that the file contained a JPEG and
    not a MP3 would cost THOUSANDS OF DOLLARS and the bullshit of having to
    file motions, depositions, etc.
    At least we agree on something.
     
    Nomen Nescio, May 26, 2004
    #13
  14. trustno1

    PTRAVEL Guest

    My understanding, perhaps incorrect, is that the peer-to-peer file sharing
    services show the same file name for multiple instances, the content of
    which may differ. If my understanding is incorrect, than you're right --
    the RIAA should verify that that which they accuse of being an infringing
    copy is, in fact, and infringing copy.
    No, but I don't think the analogy is particularly apt. One of my clients
    develops computer games. If someone is distributing game software with the
    same name (trademark issues aside for the moment), it's reasonable to assume
    it's my client's product. We don't generally prosecute internet file
    sharing (there's actually an argument that it benefits the client more than
    it hurts them, but that's another issue). However, if I saw someone selling
    boxes on the street with my client's product name on it, I'd arrange for
    seizure order.
    If someone is sued in the scenario which you've described, they could
    immediately move for summary judgment and then sue for malicious prosecution
    (assuming that a simple phone call to the attorney who filed the action
    didn't clear it up). I routinely send cease-and-desist letters before
    filing an action. On occassion, an infringer will call me up, say, "hey, I
    didn't know, I've stopped" and, usually, that's good enough -- no further
    action required other than written confirmation, i.e. a letter, of the
    infringer said. Has anyone actually called the RIAA attorneys after being
    sued and said, "Hey, this file isn't a music file -- it's a jpeg and doesn't
    infringe anything"? I can't imagine an attorney who would continue
    prosecuting an action at that point.
    Of course it does. Depositions are costly for all parties.
    Hmmmm, generally, no, there's no right to counsel as there is in criminal
    matters (and not all criminal matters, but that's a separate topic).
    However, organizations like Public Counsel will defend indigent civil
    defendants for free. I used to do that at my old firm.
    If someone wants to bring me a case in which they were sued under the
    circumstances you've described, i.e. all they had downloaded were
    non-infringing material that happened to have the same file name, I would
    ask my firm to take the defense pro bono in exchange for a contingent
    interest in the malicious prosecution which we'd file once we got the
    underlying action dismissed (no guarantees, and no promises, but I'd try to
    make it happen).
    Sorry, but I just don't believe that. There _are_ unethical attorneys out
    there, but they're few and far between and, as a rule, don't work for major
    firms. As a rule, lawyers don't bring meritless cases. I've seen a few in
    my career, but darn few and usually restricted to a couple of firms with a
    reputation for doing this kind of thing.
    Um, no . . . it's up to the discretion of the court.
    Nope. Entitlement to attorneys fees is reciprocal on copyright cases as a
    matter of law.
    Litigation is expensive, but that's not only avenue for getting attorneys
    fees. As I said, in copyright and trademark actions, the right to recover
    fees is reciprocal.
    Actually, as I recall, the test is whether the device has a substantial
    non-infringing purpose. Out of all the DTV cases, how many were against
    defendants who were using the device for other than an infringing purpose?
    I haven't looked at the DMCA recently, but my recollection is that fee
    awards are discretionary as well.
    Nope. All fee awards under the Copyright Act are reciprocal. A prevailing
    defendant can obtain a discretionary award of fees.
    Yes, as to the one person sued. It's wrong when the police make a mistake
    and innocent man is prosecuted, but subsequently acquited. That doesn't
    make either police, arrests or criminal trials wrong.
    Nope. Summary judgment. Not a cheap proceeding, and it would cost a few
    thousand dollars, but no depositions necessary. The motion would ask for
    judgment for the defendant and an attorney fees award against the plaintiff.
    That's progress. ;)
     
    PTRAVEL, May 26, 2004
    #14
  15. trustno1

    Nomen Nescio Guest

    I think this is particularly true, when it is *trivial* to do so.

    Not as easy as just grabbing names/IPs and boilerplating out lawsuits by
    the hundreds though :)
    I wish it were that easy. To get to the point where you can file for MSJ,
    you'd need to answer the complaint, answer interogatories, deposition,
    etc. then files the MSJ which would cost a defendent THOUSANDS easily.
    And that's just to the point where you could move for MSJ. And then
    filing the malicious prosecution lawsuit (assuming you prevailed in your
    MSJ), would cost THOUSANDS more which you may or may not win. It is easy,
    IMHO, for the *AA attorneys to prove "Well, on information and belief, we
    thought he was a music pirate. I guess he wasn't. We're so sorry." in a
    malicious prosecution lawsuit. About the cheapest one could hope for is a
    MTD which would still cost a bunch.

    Or one could just pay $3000 and make it go away for sure.

    It's legalized extortion IMHO.
    You sound ethical. The *AA attorneys don't do this. They don't give a
    person a chance to explain himself or even a "Stop this or we'll sue."
    They basically just sue.
    First of all, I don't know if this has actually happened. My point was
    that, I think there needs to be more PROOF and more discovery than just
    possessing filenames for a lawsuit to be filed in good faith.
    That's very kind of you.
    I believe you.
    Many defendents say they have only used them for legitimate purposes. DTV
    never ever believes them. DTV will drag a defendent thru costly
    litigation and then drop the case right before trial if there's any chance
    they might lose which costs a defendent THOUSANDS. DTV has used 24K+
    people with the only proof being a shipping record or packing slip from a
    company that says a person ordered a piece of hardware that has never been
    proven or ruled to be de facto illegal.
    This is correct. The judge MAY award attorney fees if the plaintiff wins,
    but the defendent NEVER gets attorney fees if he is found not liable. The
    only way to recup fees is thru a malicious prosecution lawsuit.
    We are talking DMCA now, not Copyright Act. A prevailing defendent has no
    way of obtaining a discretionary award of fees.
    A guaranteed $3K is cheaper than a "few thousands" with a questionable
    outcome.
    That sounds good, but when Joe Average can only afford Joe Average
    attorney, but the *AA/DTV breaks out the finest from Quinn, Emanuel,
    Urquhart, Oliver & Hedges LLP, Kirkland & Ellis LLP, Yarmuth, Wilsdon,
    Calfo, PLLC, etc., that NEVER happens.
     
    Nomen Nescio, May 26, 2004
    #15
  16. trustno1

    PTRAVEL Guest

    But you didn't clarify my understanding -- my understanding is that a
    peer-to-peer file sharing program displays several dozen files, all
    with the same name, but some with different content. Presumably, one
    makes their selection based on the name, and hope that it contains the
    content identified by the name. If this is an accurate description,
    then I don't see a problem with going after people who download a
    named file, multiple instances of which contain protected material,
    but the odd instance of which does not. Isn't that like the defendant
    saying, "Ooops, I meant to steal something -- I just didn't succeed
    this time"?
    If someone is sued for downloading non-infringing material, no
    discovery is necessary. The complaint will allege downloading of the
    file, and will plead the copyright registration. The MSJ will prove,
    by affidavit, the file on the computer does not contain the material
    covered by the registration. An answer is usually necessary, as is
    the MSJ itself.

    If it's truly malicious prosecution, why wouldn't you win?
    "Information and belief" aren't magic words that insulate a plaintiff
    from liability for malicious prosecution. Discovery will seek to
    determine _what_ information and the _basis_ for the belief which
    prompted filing suit. If the answer is, "no information, no basis for
    belief," then there will be liability.
    Motions to Dismiss aren't fact based.
    Perhaps. As I said, if the RIAA is truly just filing lawsuits,
    without basis in fact, then, yes, it's extortion, but no, it's not
    legal. I haven't seen anything which supports this contention,
    though. Can you direct me to a report of an instance in which someone
    who had, for example, downloaded a Britney Spears jpeg got sued by
    RIAA for downloading one of her songs?
    The overwhelming majority of lawyers are, at least among those who
    practice in large firms for corporate clients. I won't say that I've
    never run in to a sleaze-bag in my practice, but I can count on the
    fingers of half of one hand the number of times this has happened.
    Well, there's no requirement for a C&D -- it's not per se unethical to
    sue without sending one. All I know about the RIAA suits is what I
    read in the papers, i.e. they're going after people downloading lots
    of protected music from the peer-to-peer services. Have any of these
    defendants been sued, for example, for having downloaded music that is
    intended by the artists to be freely shared?

    I'd suspect that, unless and until the RIAA makes an horrendous
    mistake by suing a total innocent, there's not much chance that
    they'll stop, nor is there any reason why they should.
    Well, I'll give you an example unrelated to the RIAA. If I see a
    website advertising what appears to be a knock-off of my client's
    product, I'll call the client and ask them if the website owner is a
    distributor. If the answer is know, and they tell me that the product
    appears to be a knock-off, I'll generally, but not always, send a C&D.
    Sometimes, I'll just sue if I'm concerned that the defendant may just
    disappear and shift operations to someother venue if tipped off ahead
    of time.

    It is always possible that one of these defendants had simply bought a
    truckload of product from another authorized dealer, and the
    advertised goods are legitimate and legal. It's always possible --
    but it's highly unlikely. My client's confirmation that the goods are
    infringing and unauhtorized is enough for me to bring suit.

    And, for what it's worth, we've never been wrong.

    If the RIAA has been wrong, then they need a better validation model.
    If not, then I don't have too much of a problem with what they're
    doing.

    I value the First Amendment very highly, and I'm concerned that there
    has been a shift away from fundamental First Amendment values in favor
    of protecting corporate profits (and this even though I represent
    corporations exclusively). The DMCA is an example of that. I think I
    have an ethical duty as a lawyer to try to keep the law on track and
    in compliance with Constitution. I don't make the offer out of
    kindness, but out of social obligation.
    I don't know, since I've paid little attention to them. However,
    logically speaking, though a device might have a substantial
    non-infringing purpose, it would seem to me that, with respect to DTV,
    that purpose would have to be determined in the context of who is
    using it. I assume it would be the very rare non-satellite TV company
    employee who would have an application for a device that bypasses DTV
    protection that was non-infringing. However, if your recital of the
    DMCA is correct (and it may be -- I just don't recall), such an
    individual, e.g. a hobbyist whose interests have nothing to do with
    bypassing DTV protection, would have a hell of a good law suit against
    DTV if he was sued solely on the basis of possessing the device.

    They may say so, but is it true?
    How many of the 24k people actually had a legitimate purpose, i.e. a
    non-infringing one, for having the hardware? It's been a while since
    I've looked at the elements of malicious prosecution, but I would
    think a dismissal with prejudice (absent any kind of settlement) would
    count as a resolution on the merits in favor of the defendant and
    support a malicious prosecution claim. Has anyone brought one? I
    would think there would be at least a couple of my ambulance-chasing
    colleagues who would take one of those on contingency.
    I don't think that's correct. It certainly isn't correct with respect
    to garden-variety copyright infringement. Since the DMCA is part of
    Title 17, I'd suspect it's incorrect with respect to the DMCA as well.
    The DMCA is part of the Copyright Act. Does the statute specficially
    say, "no fee award to prevailing defendant"?

    This is true, and I'd almost always recommend that a client settle out
    for $3k, then proceed with litigation, regardless of merit or lack
    thereof.
    Quinn Emanuel, hunh? Interesting. All I'll say is, "No comment," and
    you can read what you like into that.

    You're right -- good IP representation is expensive (my firm is
    expensive). All of that notwithstanding, I still think a truly
    egregious case against an innocent defendant would attract attention,
    and representation at little or no cost. The EFF would probably have
    an interest, as would the ACLU. My firm, like most other large firms,
    makes a heavy committment to pro bono representation. As I've
    indicated, though I can make no promises (it's entirely up to our pro
    bono committee and a conflicts check), I'd be interesting in
    representing someone in such a situation.
     
    PTRAVEL, May 26, 2004
    #16
  17. trustno1

    Nomen Nescio Guest

    Yes. Let's assume these files are, for example's sake, MP3 audio files.
    Unless they are the exact same file, they most likely will have different
    names, different content and different length. This is a consequence of
    people naming them different, using different sources and different
    encoders with different parameters.
    First of all, the *AA aren't going after people who DOWNLOAD the files.
    They are going after people who HOST the files. If someone wants to name
    a file on their computer "Master_Of_Puppets.MP3" but it actually contains
    a JPEG or even a MP3 of non-copyrighted music and even host it on their
    computer for others to download, that is no crime. The ONUS should be on
    the plaintiff to actually have EVIDENCE beyond a filename that what
    someone has named "Master_Of_Puppets.MP3" contains a copyrighted song by
    the band Metallica rather than the defendent singing the song acapella.
    In other words, I don't think having a file that appears to be named after
    a piece of copyrighted music enough to file a lawsuit in good faith --
    especially when it would be simple enough to download it and see for oneself.
    Like I said, they aren't going after the people allegedly "taking the
    songs", they are going after the people allegedly "offering the songs".

    But even if it were that way, is it fair to assume someone that tried or
    allegedly did download a file that appears to be named after a copyrighted
    song/movie actually intended to violate the *AA's copyright? I say "No"
    unless you know the actual contents of the file. There are a lot of
    potential reasons it wouldn't be copyright theft unless you can show what
    is in the file.
    The plaintiff will call "bullshit", say the defendent's answer is "self
    serving", that the file-sharing networks sole pupose in existance is for
    copyright theft (without offering any proof of this statement), that the
    only reason someone would ever be downloading/uploading files on there
    would be for copyright theft (not only an unsubstantiated statement but a
    flat-out lie) and will want to inspect the defendent's computer for
    copyright theft evidence. The plaintiff may even ask the court for the
    right to search the defendent's house/car/etc. for copyright violation
    evidence. Of course, convincing a judge/magistrate to issue a search
    warrant like that is unlikely, but the motions filed against it by the
    defendent are very likely to cost him money. The plaintiff will want to
    deposition the defendent and anyone in the defendent's home in a "fishing
    expedition" in order to dry and dig up evidence. And if that comes up all
    clean, they'll dismiss before trial and say "So sorry, but we honestly
    thought the defendent was a pirate."
    Because malicious prosecution is (1) hard to prove and (2) the *AA's
    attorneys can drag a case like that out for years bleeding a person dry
    where he has to give up unless he's got more funds he's willing to spend
    than the *AA. It would think it would VERY hard to prove in the end that
    the *AA's attorneys were intentionally **malicious** in their prosecution
    rather than just being lazy, even if they were.
    They don't have NO information, they have very WEAK information.
    No. All the people I am aware of settled for $3K rather than go thru the
    expense of fighting it.
    The *AA would never claim to have sued someone for downloading
    non-copyrighted music. They always claim a copyrighted song was
    downloaded based soley on the filename rather than on the file's content.
    Why shouldn't they have to actually download files from alleged copyright
    violators and inspect the file's contents rather than just base lawsuits
    solely on a filename?

    Oh, I'm sure that has happened. The *AA attorney will say something again
    like "I don't believe you. I think you're lying. Either pay up or you
    can tell it to the judge and if he believes you, then you win."
    The *AA is never wrong because it's cheaper to settle than fight, those
    who fight and look like they might win get their case dropped right before
    trial (after being bled for months with depos, answering motions,
    interogatories, etc.).
    I wish all of the corporate attorneys were more like that. We might not
    have this problem.
    Here's DTV "modus operandi":

    1. Seize a website that is selling smartcard technology hardware. How do
    they do this? They "entrap" the site (it's not entrapment because it
    isn't law enforcement doing it). They ask the site, "How can I use your
    stuff to pirate DTV? Or I bought your stuff and I can't figure out how to
    use it to pirate DTV, please help." These owners are selling legitimate
    hardware with legitimate legal purposes, but apparently, they either get
    greedy or just want to be helpful and say something along the lines of
    "Try this. Or look here". Once the owner says anything incriminating,
    they present that information to a judge who allows seizure of the stuff.
    2. They seize the website's owner's records. Even though the seizure
    orders say they are allowed to seize the HARDWARE, they also seize a list
    of the customer records to see who bought what.
    3. They send out blanket, boilerplate letters threatening to sue unless
    the person calls DTV's "collection agency" and pays $3500+. People have
    tried to explain they used the stuff for legit purposes, but the
    "collection agency" will accept no excuse. Those that don't pay the $$$
    or ignore the letters go to the next step.
    4. Lawsuits are filed based on the fact that a busted site's records say
    a person purchased a piece of smartcard technology hardware.
    Without other evidence, such as an eyewitness who would claim that they
    saw the person use it for DSS piracy, then I would have to believe it.

    What if a person bought it, and never figured out how to get it to work?
    Where are the damages to DTV? DTV doesn't care.
    Quite a few claim to.
    Cases rarely get to the point where a judge will dismiss with prejudice.
    DTV will drop a case rather than let that happen.
    Once these attorneys would discover how expensive and time-consuming one
    of these lawsuits could be, they would probably decide to bail. DTV's
    lawyers have these cases "boilerplated" out. They have "fill in the
    defendent's name here" motions all ready to go and can print them out by
    the ream. They've done this so many times, that if they see someone
    playing "hard ball", they will start filing a ton of motions, discovery
    requests, etc. that will cause the defendent's attorney to spend hours a
    day for weeks just researching and answering all the stuff.
    <http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR:>

    And in particular,
    <http://thomas.loc.gov/cgi-bin/query/F?c105:1:./temp/~c105yigy41:e48497:>.

    Basically, if the prevailing party wins, attorney fees awarded are
    discretionary. There is nothing mentioned that allows the defendent to be
    awarded attorney fees is he is found not liable under the DMCA.
    Right. And that's what *everyone* who gets sued by the RIAA does.
    I take it you know them? Or not.

    Well, I will drop the name of the two nastiest, spiteful and heavy-handed
    attorneys in that firm: Dale Oliver and Michael Williams, both partners
    there. I had to go home a take a bath after being in the same room with
    them. They have no scruples and will go to any/all lengths, ethics be
    damned, to win their case. I am surprised that they can sleep at night.
    They already have: <http://www.directvdefense.org/>
     
    Nomen Nescio, May 27, 2004
    #17
  18. trustno1

    PTRAVEL Guest

    Hmmmm. Okay, here 's how it looks to me. The analogy is to the city street
    corner where drugs are openly sold. If someone stands on the corner and
    says, "Hey, I have cocaine for sale," it's not unreasonable to arrest them f
    or selling illegal drugs, even if the plastic baggy only contained baking
    soda. If the peer-to-peer file sharing networks weren't used,
    overwhelmingly, for trading of copyright-protected music, then I'd agree
    with you. I have a file on my computer called "yesterday." It's not the
    Beatles song, it's a text file that tracks my WAN IP address. The fact that
    it's there wouldn't provide a basis for a law suit. If, however, I have
    files bearing the names of the entire Beatles catalogue AND I've shared them
    via a peer-to-peer network, then I think it would not be unreasonable for
    whoever it is who owns the Beatles catalogue at this point to file suit.

    Copyright is strict liability, meaning it is not a defense to say, "I didn't
    know it was infringing. I've had _corporate_ clients sued for infringement,
    entirely unintentional on their part, but resulting in liability potential
    just the same. As with the kids on the peer-to-peer networks, I settle for
    them.

    An MSJ says to the court, based on the _undisputed_ facts, you, the judge,
    can rule as a matter of law that I'm not liable. One undisputed fact is,
    "this is the file that is on my computer" (it's been produced to the other
    side pursuant to Rule 26(a) shortly after the law suit was filed). The
    other undisputed fact is, "This is the song in which the Plaintiff claims
    copyright." (That's also been produced by the plaintiff pursuant to Rule
    26(a). The summary judgment motion consists of 5 words:

    "They're not the same song."

    Judgement for defendant. At that point, as the defendant's lawyer, I pick
    up the phone and call plaintiff's lawyer and say, "We're going to ask for
    our attorneys fees, but we don't intend to stop there. How much will you
    pay my client for release of all claims against your client?"
    There is a procedure called, "Demand for Entry Upon Land." It would not be
    available in this instance, however. This is a civil case, not a criminal
    one.
    Depositions in federal court are limited in both time and number (which
    doesn't mean the process isn't expensive or intrusive, but there's no
    unlimited right to depose). Non-parties can only be deposed pursuant to
    subpoena. Subpoena can be quashed on the grounds that they are just fishing
    expeditions.
    Dismissal without prejudice requires stipulation, i.e. agreement, from the
    defendant. Dismissal with prejudice generally does not. However, dismissal
    with prejudice should be sufficient to satisfy the "judgment on the merits"
    requirement of a malicious prosecution case (I'm shooting from the hip here,
    though -- I'd have to check the law re: malicious pros.)
    Nope, not any more. Almost all federal courts are on "rocket docket" -- one
    year or less, in and out.
    That's where the contingency lawyer comes in.
    That's not the test. The test is, (1) did defendant prevail on the merits,
    and (2) would a reasonably prudent attorney have brought the case in the
    first place. Intent isn't necessary, only falling below the standard of
    care of a reasonably prudent attorney.
    And I'd have the basis for a summary judgment and a malicious prosecution
    action.
    Sure, but have any of them said, "I settled, but I was sued for a
    non-infringing file."?

    That doesn't matter. Names aren't protectable in copyright. They'd have to
    sue for copying the _expression_, i.e. the song content.

    It would certainly make for a stronger case if they did. However, as with
    the baking-soda seller in my hypothetical above, circumstantial evidence is
    sufficient.
    Believe it or not, attorneys are held to very strict ethical standards. I'm
    not saying there aren't those out there that violate them, but it is very
    rare and, in the larger respected firms, virtually unheard of. If a
    defendant called me up and said this, I'd say, "Okay, how can we establish
    that to my client's satisfaction?" And I'd tell my client. If my client
    said, "Screw 'em, sue 'em anyway," I'd be in court the next day on a motion
    to withdraw as counsel. And I'm far from unique -- any major-firm lawyer
    would do the same. First, I believe in the system, and the system is
    predicated upon the ethical participation of all the parties in it. I never
    lie, and in 12 years of practice, I've never had opposing counsel lie to me
    (with one notable exception). Second, I make my living from the practice of
    law -- I would never, ever risk my license, which is my livelihood and
    provides support for my wife and myself, for any client, no matter how
    large. And, again, believe it or not, the overwhelming majority of lawyers
    feel exactly the way that I do.
    As I said, dismissals without prejudice must be agreed-to by defendants.
    99.9% of the lawyers that I deal with as opposing counsel are like that.
    I've met a few that aren't but, honestly, it is literally perhaps 2 or 3 in
    my 12 years of practice.

    As you said, it's not entrapment. However, I've seen ads for these sites.
    These aren't places that sell test equipment to television technicians, or
    even hobbyist places like Fry's. It's generally clear who the intended
    market is for their products.
    But they're selling it for illegitimate, illegal purposes.
    By breaking the law?
    I don't tell my clients how to break the law in the interest of being
    helpful.
    So far, I haven't heard anything that I'd consider wrong.
    Have you seen the seizure orders? I've defended clients accused of criminal
    copyright infringement who have been the subject of seizure orders. The
    seizure orders are always rather broad, and include customer lists.
    The DMCA makes mere possession of these devices illegal.
    Collection agencies can't practice law. I've had collection agencies
    threaten to sue me for debts that I didn't owe. I send them letters clearly
    stating that I don't owe the debt, and reserving all rights against the
    collection agency and their principal if they proceed. That's usually the
    end of the matter. Once it wasn't, and I sued the collection agency (it's
    the only time I've ever brought a suit in my own name). We settled, I got
    cash, my attorney's fees, and a permanent injunction against the agency.
    Is the next step a lawsuit, or is there a demand letter from an attorney?
    If the latter, that's the time to explain why the person had the device in
    the first place. However, as I said, "I couldn't get it to work," isn't
    going to be a compelling defense.
    As I said, the DMCA makes mere possession of such devices illegal.
    Sorry, I don't buy that. Circumstantial evidence is every bit as good, and
    as admissible, as direct evidence. The law recognizes presumptions in a
    number of instances, which results in shifting the burden of proof. Now,
    with that said, DTV brings these suits at their own peril. I've read that
    they have, on a few occassions, sued (or, perhaps, just pursued) someone who
    really had a legitimate purpose for having such a device, e.g. a graduate
    student doing research or inventor. An innocent defendant like that has a
    wonderful law suit on his hands -- punitive damages could be in the tens of
    millions. Hell, I'd probably take a suit like that on contingency.
    However, to the best of my knowledge, that hasn't happened yet.
    Doesn't matter -- mere possession violates the DMCA.
    Doesn't matter -- damages are statutory.
    But how many actually did?
    Judges dismiss only upon motion.
    DTV can't dismiss without prejudice unless the defendant consents.
    Otherwise, the dismissal must be with prejudice.
    Hardly. I spend my entire work day litigating cases exactly like these -- I
    sue (and defend suits) for infringement of trademark and copyright. Yes,
    these are more complicated than a whiplash PI case, but there are,
    literally, hundreds of thousands of lawyers in the country besides myself
    with the experience and skill set to do this kind of litigation. It's
    really very common.

    I've defended similar actions brought by corporate plaintiffs far larger,
    richer and determined than DTV. The cases have always settled, and always
    in my client's interests. Legal process isn't a steam roller, though it can
    seem like one to someone unfamiliar with it. Courts penalize, severly,
    frivolous litigation, and will sanction procedural misconduct in a
    heart-beat (and the sanctions run against the lawyers as well as the
    client).
    A couple of years ago, I sued an insurance company on behalf of a corporate
    client for bad-faith denial of coverage. This sort of thing happens all the
    time -- insurance companies seem to delight in coming up with obscure policy
    language that they can interpret however they want. The basis for the
    insurer's denial of coverage was fairly common (though somewhat technical --
    their claim was that insurance indemnifying against damages arising out of
    "advertising injury" didn't cover trade dress infringement litigation). Law
    suits addressing this scenario are also fairly common. The insurance
    company did, indeed, have a more-or-less-boiler-plated motion to dismiss
    ready to go, with all of the case law and citations neatly laid out. I
    filed an oppostion to the motion to dismiss and a cross-motion for summary
    judgment. In my two pleadings, I laid out a theory that was quite appealing
    to the court (because it allowed the judge to harmonize two competing lines
    of cases), and also referenced some recent Supreme Court decisions that,
    while entirely unrelated to the insurance coverage issue, were highly
    relevant to trade dress, and supported my theory. Long story short, the
    judge denied the motion to dismiss, granted my summary judgment, and I won
    the case without the insurance company even having the opportunity to file
    an answer. "Ready to go" motions and boiler-plate complaints don't concern
    me in the least.

    I like to think I'm a pretty good lawyer, but there are tens of thousands of
    good lawyers out there, and many of us will take a case like that on
    contigency (the insurance case I just described was on a contingent basis).
    They can't. A motion is a procedural device which tries to "move" the court
    to one action or another, i.e. they ask the court to do something specific.
    I've been in litigation in which, occassionally, the other side would file
    motions that I felt were unnecessary and, in very, very rare instances, even
    malicious (or, at least, just plain nasty). I simply respond on the merits
    and, almost always, prevail. "Hard ball," to me, simply means a lawyer
    that won't extend professional courtesies, nothing more.
    There are all sorts of ways to handle burdensome discovery. It's rarely a
    problem.
    Yes, but that's what we lawyers spend our days and weeks doing -- research
    and writing. I'd estimate that less than 5% of my time in any given year is
    actually spent in court. Perhaps another 5% is taking depositions (trial
    and depositions are the most fun, in my opinion). I spend 20% of my time on
    the phone, talking to clients, opposing counsel, court clerks and witnesses.
    The other 70% of the time is spent in front of my computer, researching law
    on the on-line databases, and writing briefs.

    The practice of law is nothing like the way it's portrayed in the movies.
    "The Verdict" is interesting fiction, but has little to do with the way
    litigation is conducted. Oddly enough, the most accurate "lawyer movie" I
    ever saw was "My Cousin Vinny."
    The link doesn't work --evidently it's time limited. However, "prevailing
    party" means whoever wins. If the defendant wins, they can get attorneys
    fees.
    The operative words, though, are "questionable outcome." If it's a
    slam-dunk case, I'd litigate it through, on contingency if necessary, and
    sue for malicious prosecution.
    I know them.
    I don't know either of them, and won't comment about their firm (or any
    other firm), except to say that, as I've indicated, the general rule is that
    the overwhelming majority of large-firm lawyers are ethical to a fault.
    I'm sorry you had a bad experience. As I say, I can't comment one way or
    another about these particular lawyers, as I don't know them, either
    personally or by reputation.
    I'm glad to hear it.
     
    PTRAVEL, May 29, 2004
    #18
  19. trustno1

    Nomen Nescio Guest

    Some make it quite obvious. Others look legit.
    How do you know that? I've seen several sites that make no mention of the
    devices being promoted for satellite signal theft.
    Is it not breaking the law when/if a person working for DTV solicites
    these website owners into assisting the person in using the smartcard
    hardware for illegal purposes?
    I consider DTV "moles" contacting the owners of these website and
    requesting help how to use these devices for illegal purposes wrong. I
    mean that's solicitation -- that's encouraging or inducing the person to
    commit a crime.
    No it doesn't. It only makes devices whose PRIMARY or SOLE purpose it is
    to pirate DTV signals. These devices are NOT solely useful or primarily
    useful for DSS piracy.

    Saying the DMCA makes mere possession of these devices illegal is like
    saying a CD burner or DVD burner is illegal because it is SOLELY and
    PRIMARILY useful for the illegal copying of audio CDs, computer software
    and DVD-Videos.
    Would you consider a person who purchased a radar detector guilty of
    speeding because the sole purpose of a radar detector is assisting someone
    evade getting a speeding ticket? How would such a person shift the burden
    of proof to prove he never sped? Or would you say a person would need to
    be caught in the act of speeding?
    No it doesn't. Like I said no more than possessing a CD or DVD burner is
    illegal. It's only if it is USED for illegal purposes. A device is only
    illegal by the DMCA if the devices is PRIMARILY or SOLELY useful for DSS
    piracy.

    The devices were invented and used BEFORE DTV was even in existance and as
    such cannot be SOLEY or even PRIMARILY useful for unauthorized inteception
    of DTV's signals.
    How is one to know?
     
    Nomen Nescio, May 29, 2004
    #19
  20. trustno1

    Guest Guest

    On the other hand arresting that so called drug deal because he said he was
    selling cochain is probably not a good idea. If it did turn out to be baking
    soda then he could slap the city with a false arrest suite. It would be
    better to arrest him at first for fraud and then verify what he was selling
    and add the additional charges on. That and I think most under cover cops
    would be more careful than this.

    I think this is a valid concern. What happens is I create a 600MB text file
    and name it Hell Boy DVD.mpg. and offer it up. I would think if I was
    arrested on this that a false arrest lawsuite would be an easy thing to do,
    not to mention several other things as well.

    This is the problem with the Pirate Act, that and the penalties are way to
    stiff. Especially considering when Bush has made it perfectly clear that
    almost anything goes when one is at war and I think you would be hard
    pressed to find many that don't feel they are at war with the recording
    industry. Like Bush they keep lieing about why CDs cost so much and why most
    of the artists today suck big time. Then you have a war to wage on the
    online music stores where you still pay a premium price and can't hardly do
    anything with what you bought.

    Even if the Pirate Act makes it in to law, I don't think it is going to last
    long. There are too many holes and gray areas in it just screaming for law
    suites and you can bet they will come.

    Jerry
     
    Guest, May 29, 2004
    #20
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