Peter Shinkle of the St. Louis Post-Dispatch reported April 20 that Tim Mouser, one victim of 942 RIAA lawsuits in St. Louis, will not settle and has hired a lawyer to take the matter into the courtroom.

According to the original article, Mouser ponied up some cash to pay for the ad-free Kazaa, after noting on their website that it was "100% Legal". The RIAA claims he is guilty of sharing at least 5 songs, and has threatened to sue him for $30,000 per song or to settle out of court for $10,000 (extortion, anyone?). RIAA spokesman John Lamy said the threats are "reasonable", and that lawsuits are not meant to be "punitive".

Mouser has hired Joan Swartz as counsel in the case. In an interview in the article, Swartz mentions "fair use" in defending her client, a method that- in court against the RIAA- may not be too successful. Swartz's office can be reached at (314) 471-2032. (Personal note: I wonder if the EFF would be willing to help out here?)

Mouser is the only known defendant in the St. Louis barrage of lawsuits to take it to the courtroom. The full article can be found here:

http://www.stltoday.com/stltoday/news/stories.nsf/stlouiscitycounty/story/F5434CBECF1A340C86256FEA0016F24A?OpenDocument

He will lose. I know the defenses and that's not one of them. This is what the RIAA wants. To blame KAZAA because he thought it was legal.

OK raoulduke, enlighten us. What defense should he use instead? I don't argue that fair use is a poor defense, but just what are you suggesting as an alternative?

It seems that one might use their statement that the suits are not punitive against them. Then make them show actual damages, and agree to pay for any real harm that can be proven.

If they are only accusing him of sharing five songs, how many times could those five songs have actually been shared? Probably not many. What percentage of the times it was shared resulted in a lost sale? That really cuts it down to practically nothing.

If judgments were based on real damages and not punitive, it wouldn't even be worth the paper and stamp to send this man notice he was being sued.

unless he hires other attorneys or his current attorneys discuss this with other experts in the field. Leflaw, you busy??

Five songs? This is one of those aggregious file-sharers?

"lawsuits are not meant to be 'punitive'."

You can file that quote in the Big Fat Lie folder, right next to "it's all about the artists."

I know the defenses too. At least three of them. I am waiting for raoulduke1 to go first. I will give him a 10 minute headstart.

Hey about a contest? I bet I can come up with more real defenses than anyone else. Any takers?

1) I didn't know it was illegal (ignorance is no excuse...why seems really weird, are citizens supposed to have memorized every federal law there is out there?)

2) It said it was 100 % legal (so, you believe everything you read?)

3) Fair use - actually, to me, this one is interesting, although I would reject it at first blush...since an MP3 is a lossy compression format, technically the MP3 is a fraction of the entire component of sounds that was in the original...
From http://www.gigalaw.com/articles/2000-all/gall-2000-12-all.html
---Is the use educational or commercial?
---Is the work used for the purposes of criticism, comment, news reporting, teaching, scholarship, or research? (this one is problematic for the casual downloader...even more so for the uploader/sharer)
---Is the use "transformative?"
"Does the use of the copyrighted work create a new work of value to the user, or is it just a copy for reference purposes? Has there been, in the words of the Sixth Circuit Court of Appeals, a "creative metamorphosis?" To the extent a new valuable work is created, then the use might be considered fair. To the extent the user is just making a copy instead of buying the work, or is buying a copy instead of the work, the use is likely not fair."

"Fair Use Factor Two: Type of Work

Is the work "worthy" of protection? Remember that certain types of things are not copyrightable. For this reason, compilations of facts are not entitled to as much protection as original works.

In the Texaco case, the Court of Appeals ruled that heavily factual material, such as the journal articles, were not entitled to be considered "within the core of the copyright's protective purposes," reasoning that the law requires facts to be disseminated more easily than fiction. (Despite this finding, however, the Court of Appeals still found Texaco's large-scale copying of journal articles not to be fair use.) This is just a reminder that the four fair use factors must be considered together, and one factor is not determinative.

Fair Use Factor Three: Amount Used

This factor requires the court to assess the amount used in relation to the copyrighted work as a whole. In some cases, the court will look at the value of the part taken in relation to the value of the work as a whole. It is hard for the potential infringer to argue that the part taken has no value; if that were the case, then why was it copied in the first place?

This analysis begs the question of how much is too much copying. In passing the 1976 amendments to the U.S. Copyright Act, Congress relied on the "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions With Respect to Books and Periodicals," called the "Classroom Guidelines." The Classroom Guidelines state that no more than 1,000 words of any work should be copied.

The Supreme Court has ruled that it was not so much the amount taken, as whether the portion taken constituted the "heart" of the piece.

In the case of parody, courts look at whether the amount taken was more than necessary to "conjure up" the original in the mind of the public.

Fair Use Factor Four: Impact on the Market

Why make the copy? If it is to keep from having to buy reprints of an entire article, that is not fair use. If the copied portions "fulfill demand for the original," it is not fair use.

"Fairness," however, may depend on whether there is a market for the work that was taken. The Texaco court noted that a particular unauthorized use should be considered "more fair" when there is no ready market or means to pay for the use, while such an unauthorized use should be considered "less fair" when there is a ready market or means to pay for the use. In that case, the court noted that, while there was no real market for scholarly journal articles, there was a means to pay royalties for such articles through the Copyright Clearance Center. For that reason, copying the articles caused the copyright holder to lose royalties, and was thus unfair.

Parody

In general, "parody" is a work that takes some of the original work and comments on the original work, usually in a satirical manner. The creator of the original work may not like it, but it is fair use, even if done for profit.

The seminal case in this area is Campbell v. Acuff-Rose Music, Inc., a case in which the owner of the rights to Roy Orbison's classic rock song Oh Pretty Woman sued 2Live Crew for its parody version of the song. The Supreme Court reviewed the four fair use factors, and found that, although the use was commercial and a key riff had been used throughout the parody, the amount taken was just enough to conjure up the original in the mind of the listener, and the parody did not affect the market for the original.

The key to parody as fair use appears to be taking as little as possible to conjure up the original. Reasonable courts differ as to what constitutes just enough. In Eveready Battery Co. Inc. v. Adolph Coors Co., a federal court in Illinois decided that having actor Leslie Nielsen wear bunny feet and ears while banging a drum to sell beer was fair use of the copyrighted Energizer Bunny character, as Coors did not take too much from the original.

Mr. Neilsen again found himself in the middle of a fair use controversy when his face was superimposed on the body of a nude pregnant woman in a parody of Annie Liebovitz's famous photograph of Demi Moore. In that case, as in the bunny case, the federal court in New York found the photograph to be a fair use parody.

It is important to distinguish between parody of the original work, which is fair use, and use of the original work to parody something else, which requires permission. For this reason, entertainer "Weird Al" Yankovich has been unable to write any of his parodies to the tune "Purple Rain," as the copyright owner with the unprintable name (it used to be "Prince") has so far refused his requests for permission to use the tune."

4)The threats of suit unless he pays up could be seen as extortion under the Hobbs definiton by some (this one won't fly...people offer to settle out of court all the time).

(In February 2003, in Scheidler v. National Organization for Women, Inc.,3 the United States Supreme Court held that the Hobbs Act definition of extortion requires that an alleged extortionist obtain or attempt to obtain something of value from the victim of the alleged extortion which the extortionist or another4 can “exercise, transfer, or sell....from http://64.233.167.104/search?q=cache:MvX1j7tBwwEJ:www.bnabooks.com/ababna/nlra/2004/luce2.doc+extortion,+hobbs+definition&hl=en

5)He only had five songs and the RIAA claimed it was only going against people with a large number of songs. If he was relying on their representation, he could reasonably believe he would not be a target...unfortunately, detrimental reliance would be hard on this one..

There may be argument as to whether the songs are "fixed" works or not...
but my main thrust would be this....

The MP3 format is not the format the song was released in...and thus, it is not truly an "unauthorized reproduction of the copyrighted work".

A perfect copy of a released music CD may be an "unauthorized copy", but not a ripped MP3 in my opinion, which could be seen as transformative...in the sense one does do a transformation process in ripping a CD to MP3 format...

And, does just having the file on a hard drive exposed to users of a service constitute "unauthorized copying" or is the one downloading it actually making the unauthorized copy...

But, hell, they are just ones and zeros in an MP3...are 1s and 0s...charged and uncharged, magnetized and unmagnetized copyrightable in and of themselves?

or maybe all my above speculations are just rubbish

"Joan Swartz as counsel in the case. In an interview in the article, Swartz mentions "fair use" in defending her client"

Oh brother.

"Then make them show actual damages, and agree to pay for any real harm that can be proven."

Damages are statutory. Shouldn't you know that by now?

"'Then make them show actual damages, and agree to pay for any real harm that can be proven.'

"Damages are statutory. Shouldn't you know that by now?"

Perhaps I should. But since I am not uploading or downloading music or anything else on p2p networks, perhaps I haven't paid sufficient attention, as I am not a target for the RIAA.

What is the statutory charge for distributing a song? Help me since I haven't been paying attention. I bet I'm not the only one.

Hint:

17 USC 101 definition of "copy"

Defense #1 -- It wasn't me. Must be some kind of mistake.

1A -- You know, I've got a wireless hub, so someone could park out in the street and use my connection.

1B -- Well, the subpoena has my name on it and I didn't do it. Maybe it was my kid, but she hasn't been accused.

1C -- I hope you have a picture of me sitting in front of the identified computer during the time period in question. Otherwise, how could you prove it was me? Go ahead, arrest my computer, but I wasn't involved.

Defense #2 -- What is this "sharing" thing you're talking about? I didn't willingly give anyone anything.

Defense #3 -- I'm sure the labels will have no problem proving that they actually registered each and every one of these songs with the Library of Congress. If they haven't, that changes things, doesn't it?

----

Statutory damages are maximum of $150,000 for willful infringement.

If such infringement was not willful, it can be reduced to $750 at the judge's discretion. Probably per item.

Defense #4 -- There is no tangible copy as required by leflaw's hint.

that's where I was going with that "fixed" work deal...tangible

and...the best defense..
6) TEMPORARY INSANITY !
(surely anyone downloading an RIAA affiliated tunes HAS to be nuts!

"Perhaps I should."

Sorry dude. I thought you were awehr, our self proclaimed legal and constitutional law expert.

"Five songs? This is one of those aggregious file-sharers?"

Yes. Five songs is "significant." Which is why I think Grokster ought to win their court case. Hollywood classifies that as "significant." Well.. then it's pretty easy to say that Kazaa has "significant" non-infringing uses.

Maybe it's not a great legal argument, but it's enough to shove back in their face during a bitchfest, which is what this is.

Our warrior is from st. louis too.. horrah.

If he uses a site that says it is 100% legal, shouldn't the proper target be the company, not the user--who bought it in "good faith?" Or would the "ignorance is no defense" thing trump this?

Kazaa is 100% legal last I heard. Using the program to download copyrighted materials without consent is another issue.

But--not that I ever used it, mind you, mroop--when you download a file, there's no warning label on it, or any other way to identify it as copyrighted or not. So how's a poor consumer to know?

"So how's a poor consumer to know?"

I would say it's better to err on the side of caution. If you don't know, don't do it. If the poor consumer really wants to know, just check any online store - if the song is listed for sale then it is copyrighted.

I personally find it hard to believe that a 39 year old adult with no apparent mental disabilities would actually believe that a 50 dollar payment would entitle him to an unlimited amount of free music to download. But who knows, there are a lot of people out there that ain't too smart.

Yeah, especially when DMusic provides it for free.

"I personally find it hard to believe that a 39 year old adult with no apparent mental disabilities would actually believe that a 50 dollar payment would entitle him to an unlimited amount of free music to download."

Uh, isn't that what Napster is? Oh, I forgot. It's just a rental.

Most of the defenses listed by George Z. have some good potential.

In my book "unlimited" is nowhere near the five he was charged with, either. And in no part of the civilized world would "five" be considered egregious.

I'm not saying that five is unlimited. I was referencing the article:

"So last summer, he agreed to pay $50 a year to a Web site, believing he could use it to download music legally."

Thank you for spelling "egregious" correctly. : )

Spelling is my forte...typing, unfortunately, is not. I leave you to George, and Diogenes. I know they'll give you a very hard time, and it's way past my bedtime. Have fun, mroop, and play nice.

My Defense would be simple:
You win this case you die!
Are you sure you want to win?
Do you want to settle instead?

Go Peter Shinkle! Give them hardtime!
You are our hero! All it will take for us is for the RIAA to lose one case.

The DMCA have the apearence of the law but it is not the law because it is unconstitutional.

By continuing corrupting the law the governement is losing credibility It is urgent to clean the place comencing by the RIAA the MPAA and the 4 majors.

"Hint: From 17 USC 101 definition of 'copy'". Hmm...I like it!!

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed."

I'm guessing this was an attempt to bring CDs (or other similar future material objects) into the fold whereby "copies" would be considered such, in the new material object form ONLY. And such as mp3s are, they aren't material objects, and therefore cannot be deemed a legitimate "copy." Is that correct? The RIAA would probably argue that the users Hard Drive is the new "material object," but that really couldn't work either because the RIAA doesn't sell preloaded Hard Drives with songs in mp3 format!!!

From the article: "His attorney, Joan Swartz, contends that Mouser's downloading was protected as a 'fair use' permitted under federal law. She said Mouser owns CDs containing some if not all of the songs copied, and so his recording of them over the Web was a 'fair use' of a recording he had already purchased."

That's pretty good too. It worked for that Gonzalez woman!! I'd say, he should just buy some used CDs containing the songs he downloaded. Who would know when he actually bought them?

From the article: "The industry, however, is unimpressed by the 'fair use' claim or Kazaa's representation of being legal."

I'd expect a comment like this. The RIAA wants to decide what IS "fair use" and what ISN'T!! They'll try and get away with as much sueing until they are stopped!!

I say go to a jury trial. No way will his peers side with the RIAA!!

Capt-n-Jack,
Thanks for finding the definition of copy I'm not a lawyer, but I do read a lot of legal documents for my job. The definition of copies definitely covers computers and computer files. Whenever "a work is fixed by ANY method now known or later developed", it is a copy - so anytime you copy and paste a copyrighted file, you're making a copy. Since the computer can perceive, reproduce, and otherwise communicate the information in this file, it's definitely a copy...

I wonder if anyone's tried the defense of 'this is the only way I can see to stick it to the Man', some sort of civil disobedience defense?

It wouldn't be fair if I posted the article and didn't provide some defense ideas of my own. Since I'm in the guy's hometown, I will be watching this like a hawk. Updates will be provided to you all in near real-time. Now on to the defense....

Swartz has probably already said too much. I would keep my mouth shut (along with my client) about file sharing and just hammer home the idea that I never had any MP3 on my computer. The RIAA would have to
1) Prove the MP3 existed in the first place by downloading it in full (i.e. it's not just some file name with nothing in the file)
2) Prove the MP3 that was downloaded came fully from the defendant's IP
3) Prove the defendant's computer was attached to the IP at that exact moment in time

The burden of evidence is squarely on the RIAA here. I'm afraid Swartz is already barking up the wrong tree. The "fair use" argument implies that yes, the defendant had the file on his computer and may have been allowing others to upload it. That makes it all too easy for the RIAA to claim infringement.

It seems to me to be a huge mountain to climb to prove that one person was sharing a specific file at a specific point in time. Swartz should let the RIAA dig their own hole. That's why I included the legal office's phone number so those well versed in copyright law and legal discourse can call and give some ideas to his defense team.

I wish I could be picked for jury duty on this one...

"If they are only accusing him of sharing five songs, how many times could those five songs have actually been shared? Probably not many. What percentage of the times it was shared resulted in a lost sale? That really cuts it down to practically nothing."

Gee, let's assume that these 5 songs were shared 20 times each, that means there was 100 downloads the record labels didn't get. $1 x $100 = $100 in potential lost revenue. Now, how many would have actually PURCHASED the download? 25%?? 50%?? Damanges to the record labels would therefore only be $50.

In addition, how many of these downloads would have lead to the downloader purchasing a CD? 5%?? 10%. 100 x 10% = 10 x $15 per CD is $150. Gee the RIAA actually made more money because this guy shared their files. I guess the RIAA owes this man $50.

Of course, there is NO WAY to prove how many times the shared file was downloaded elsewhere, is there? Nor is there any way to determine how many would have paid for the download, or how many downloaders would have spent money on the CD.

Finally we get to see how it would really hold up in court.

hope his lawyers are reading this

I think the key word is sharing -- does merely having files on your computer constitute copyright infringment? The Canadian courts have said no.

>>I personally find it hard to believe that a 39 year old adult with no apparent mental disabilities would actually believe that a 50 dollar payment would entitle him to an unlimited amount of free music to download.

Try this again
I personally find it hard to believe that a 39 year old adult with no apparent mental disabilities would actually believe that a 50 dollar payment would entitle him to an unlimited amount of free music to download.
Mroop - Have you never recieved a Columbia house flyer? 10 records for 1 cent each. Why is $50 for music so hard to believe? (Devil's advocate speaking)

"Mroop - Have you never recieved a Columbia house flyer? 10 records for 1 cent each. Why is $50 for music so hard to believe? (Devil's advocate speaking)"

Ya! I receive such email from BMG and every month I try to get the most crappy RIAA CD I can find to Shiitman and other RIAA shit of bags! It's bothering hum? when they receive the bill!

Another thing you can do against colombia house and BMG:
1) Order some CDs
2) Trash everything when you receive it.
3) Claim you did not reciev anything and therefore you don't pay! Do this!

When are we gonna see an arguement over the fact that P2P and handing out a physical copy for personal use are the same thing?

Q2 -- Never.

The RIAA doesn't argue facts. It would screw up the plot in the pirate story.

see my earlier post on "fixed"...
"“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed."

Is a set of magnetized and demagnetized bits on a hard drive that can be changed at random either tangible, material, or fixed? They're ones and zeros, and really, are not tangible in the usual meaning of the word.

Try to get this attorney's email address so we can link them here. Give them some ideas.

gdZiemann says "Defense #3 -- I'm sure the labels will have no problem proving that they actually registered each and every one of these songs with the Library of Congress. If they haven't, that changes things, doesn't it?"

Why can't the accounting scam be entered as evidence as well.. seems the actual money in the account for the mechanical for each use of the song--as evidenced by the term "copy".. could be entered as evidence of the actual expectation of payment to the copyright holder.. and couldn't the artist be subpoenaed (sp, mroop?) to state how much he/she ACTUALLY made per copy? Then the statuary amount would be proven rather excessive... right? (Of course, this proves without a doubt that I am not a lawyer)

"Is a set of magnetized and demagnetized bits on a hard drive that can be changed at random either tangible, material, or fixed? They're ones and zeros, and really, are not tangible in the usual meaning of the word."

Code, to me, it would appear that the definition of "copies" was referring to actual physical objects that can be held in a person's hands, and as such, a digital file on a computer would not be considered a a legitimate "copy." And yes, as you state, it wouldn't be tangible. I would only consider it a "facsimile."

hmmmm, they convicted charles manson of murder and he never raised a finger.....

don't look too good for him from here.

Hello everyone! Let me introduce myself... I am Tim Mouser. Let me start by saying that I can't believe that all of this is going on. It's a little overwhelming to see yourself on the front page of the newspaper much less to see all of this on the net. I wanted to respond to r0dr0ddy but I would prefer not to post all of my comments on an open forum at this time. Let's just say that they claim to be able to prove some things you brought up.

As of right now this extortion is getting the best of me as I do not have the money behind me that the RIAA has behind it. It's a crying shame that this all boils down to the one with the most money wins. The RIAA is using it's money to extort money from the common man. I don't know about any of you but I have MTV and I have seen Cribs. It doesn't look like any of the performers on that show are hurting for money.

Some changes need to be made in the laws. Don't get me wrong! I in no way feel that anyone should steal music, but, the laws are outdated. AND, Why are web sites like kazza even aloud to be in business? Are they in cahoots with the RIAA to sponge up as much money as they can before we put a stop to this?

In the end, I see it like this....I have no choice but to pay them because they have enough money to bury me. Right or wrong they win.
If I had the money, I would be willing to take this all the way to trial for all of the people who have and will be sued for this reason.

The funny thing about all of this is the songs they chose to sue me for. None of them are very good songs and in my opinion are from so so performers to begin with. On top of that, I own all of the songs on cd. I didn't go out and buy them as some of you have suggested. I already had them in my collection of cd's. And I will let the RIAA know that I have been collecting cd's since 1984 and I still have the first one I bought. I'm sure that nobody had a problem with me spending half of my paycheck on music back then. Back when everyone made cassette tape copies for their cars and they had no way of controlling it. It was just a gray area back then, and it doesn't look like it hurt the RIAA or any of the performers in the least. I wish I was lucky enough to have people like my music enough to to listen to it. And you know at some point most of the performers out there would have given their music away for free if it meant getting a contract.

Tim, we all understand. And we wish you the best of luck, whatever you do. Now you know why we boycott here...to kill Goliath.

I have a suggestion Tim. STOP BUYING RIAA CD's. You have to raise the money to pay them somehow. While you are at it, stop buying MPAA DVD's. They are doing the same thing to their customers.

There is plenty of music you can listen to for free on Dmusic.com, garagebands.com, and other sites. They actually WANT you to download their music, and even share it. It's free. You won't be sued by them. This way, you can get your music fix and pay off the RIAA weasels.

And while your at it, tell EVERYONE you know to do the same thing. Stop buying RIAA music and MPAA DVD's. Spread the word, tell your experience to everyone you know, how you were sued and extorted by the RIAA. Learn from this experience and teach others before it is too late. Don't buy RIAA music. Period.