Opinion
Jon Newton

After Labor Day 'there was a dramatic uptick,' says Eric Garland, ceo of BigChampagne, which tracks file sharing. The numbers were as high as ever, and there was no significant drop-off after news of the lawsuits last week.

This came in a September 22 Newsweek story by Steven Levy slugged Courthouse Rock on the RIAA's sue 'em all campagn. However, it now appears from this and other reports that the music industry mouthpiece isn't achieving everything it desires - unless it believes PT Barnum's axiom, "There's no such thing as bad publicity".

And that's because people around the world are now realizing that those being singled out by the RIAA as stone liars and thieves are, actually, victims of a cold entertainment industry plan to protect its profit margins by any means.

Or is an organization that's meant to serve it now rampaging out of control?

Joyce Mullen is 53-year-old administrative assistant and her relationship with the music industry changed last Monday, when the phone rang, says Levy. It was a reporter asking how it felt to be sued by the giant corporations who sell the CDs she’d been buying.

"Her husband - who never touches the family computer — was among the 261 defendants in suits filed by the Recording Industry Association of America (RIAA)," he says. "What made the family liable for millions of dollars in penalties were the 1,080 or so songs downloaded by their 21-year-old daughter Meghan and shared with the world via an Internet file-sharing service called iMesh. Joyce Mullen won’t be buying music for quite a while. 'If you’re going to lose your house,' she says, "how are you going to buy a CD?'

"What the Mullens can’t figure out, like many of their fellow defendants, is how they wound up on the front lines. Why would an industry sue its customers? And why them?"

In our RIAA victim says she has to settle, Lorraine Sullivan asks the same question.

Sullivan knew she was being sued only after she'd been contacted by a reporter. In other words, the association doesn't even have the courtesy to contact defendents directly.

She told us that when she phoned the RIAA to ask what was going on, she was told she has to answer for 1700 downloads. And yet she says she personally downloaded only 108 files, and didn't intentionally share anything.

When she loaded a new p2p app, its default was set automatically to the share folder, she says, which meant anyone anywhere could see, and upload, the contents. It had been switched to 'off' in the version she'd replaced.

So does this mean Sullivan is a stone liar and a thief, and if not, that she's legitimately in the RIAA's sites for other reasons - 1592 of them? And does the same apply to Joyce Mullen? Or is she a stone liar too?

And what about Durwood Pickle, 71, of Texas? He's another computer-owner told the world his teenage grandchildren used his computer during visits to his home. "I didn't do it, and I don't feel like I'm responsible," he said.

Nor are these people alone.

But they're either liars who've been knowingly sharing music files. Or they, and a lot of other people like them, honestly didn't know for, one reason or another, they were doing anything wrong.

Some thought that by buying an app for $29.99 they were also 'buying' permission to download. Others thought it was OK because the music was already on the Net. And yet others just thought it was a cool way to listen to music.

But every one of these people have two things in common:

They say they weren't knowingly doing anything wrong: and, in case the RIAA hasn't noticed,

They're all ex-customers of one or more of the record labels that have the misfortune to be represented by the RIAA.

Either that, or they're stone liars who deliberately set out to defraud the music industry which is, of course, the line the RIAA would like everyone to believe.

"I’m furious because I can’t afford this," Levy quotes Alyson Symons of Los Angeles as saying.

"I’ve got two young children. I’m not dealing with this too well."

And, "I think it’s really ridiculous to do this to a 14-year-old," says Courtney Fitzgerald, a student who downloaded 800 songs.

She now has her family on the line for up to a billion dollars’ worth of penalties.

The RIAA has sensitized the world to its sue 'em all campaign and successfully portrayed its client base as heartless, venal cowards.

It'll be interesting to see how well the next onslaught goes.

(Thanks for the pointer, Jazzmary2U : )

Too many more like these folks, and the public will know the RIAA's claims, that file sharers are a bunch of irresponsible teens and college students, is just so much smoke and mirrors.

The RIAA should have just stayed in the dark shadowy corners where they belong. They really don't function too well in broad daylight.

I'd hardly call the majority of americans computer literate. It's so plausible that they didn't know what they were doing was wrong that they're telling the truth.

excellent points and great article Jon!
two thumbs up.
Lorraine has said that people have written her to say that she should declare bankruptcy and "ignore this".
That's some of the worst advice that she could have gotten. Lorraine has unfortunately apparently made a statement about having over a hundred tunes she downloaded. She doesn't say these were copyrighted tunes, but it brings up a VERY important point.

To anyone who is sued and contacted by the news media, I would urge you not to make any specific comments about the facts of the case before contacting legal counsel. Even the most innocent of comments can come back to haunt you if you decide to fight the case. The ONLY time you should say publically ANYTHNG about downloading even ONE of the RIAA's files, if you are just going to declare guilt and throw yourself on the mercy of the RIAA and a possible settlement, but even then, I would NOT say anything before seeking legal counsel. Remember, hidden deep in the DMCA is the provision that if it is proven you got ANY financial consideration for downloading or sharing the files, the DMCA provides for a 5 year prison sentence and 500,000 dollar fine, and for each subsequent violation, up to 10 years in prison and a million dollar fine!

So, least said, best!
(in my opinion)
~code

What a crock the RIAA is. Some of these people being told by the media that they are being sued. The record industry as we know it today will be a thing of the past very soon, any publicty is good publicty when you are in a rock band. But I do not believe this holds true fo coprorations.

Code is dead right.

Not knowing the law was never an acceptable excuse in court. Also in this case, downloading by itself is a crime. Sharing will just make you a bigger criminal (in the eyes of the law and the RIAA which are often the same).

With the current laws those people will be smart to settle.

Did any of these people ever receive C&D notices ?

Why didn't the RIAA notify these people of the lawsuit directly instead of the shocking phone call from the news media ?

Was this another 'self incriminating set-up' by the RIAA ?

It is easy to believe, they didn't know. In todays world of; make it easy for the user and hide what we are doing, it is often hard to find where the important stuff is.

If this is such a problem for the RIAA, why aren't they putting their names on everything that they control and a warning on the same products that distribution is illegal? Maybe that would not stand the light of day, with the consumer, if the consumer knew he was giving up the right to play the song at home, how he chooses.

Something smells bad here, like hidden fish that died in a dark corner a good while ago....

otech1 - I think the RIAA says all that crap it issued about them starting on June 25th to collect "evidence" and to stop sharing files...would constitute affirmative prior notice and in effect, a mass C & D. But, truth be told...a "takedown" notice, in effect a C&D to the ISP, would have stopped most of the people who were filesharing.
~code

same song with a new beat....guess the riaa feels compelled by their"loyalty"
to its artist to harrass and bankrupt people who could ill afford to buy its cds now being forced to part with a few thousand dollars as a tradeoff....this is like a mugger saying that instead of punching you in the face, kicking you in the ribs, and putting a choke hold on before he robs you he will leave out the kicking part....there doesnt that make you feel better?....legalized strongarm robbery

Everytime I hear about another unlikely victim of the sue-em-all campaign, it makes my blood boil.

True story: In 1999, right when Napster was starting to boom, my computer genius friend and I were debating the legality of downloading music. Our final consensus was that, even though it's infringement, no money is changing hands, and no one is profiting unnecessarily. We also both agreed that in order to stop the downloading, the labels would have to sue individual users, and that would never happen.

How wrong we both were.

In a country based on law and the legal process, how the hell could unsuspecting victims recieve word of billion dollar lawsuits from the media before hearing about it from any offical source? Needless to say next year I'll be voting against any congressmen in my district and state who chose in the past to accept tens of thousands of RIAA bribe money- which went to support the DMCA which allows these insane lawsuits to happen in the first place.

What a country we live in...

You know, it makes me want to go out and purchase some new cds with all the new DRM stuff on them. NOT!!!!

The interesting thing about all this is the RIAA cut their own throats. I (and millions like me) were totally unaware there was even file sharing out there until they went after napster and made a big publicity about it. I downloaded napster to see what all the fuss was about and I fell in love with it. Maybe they should've kept their mouths shut or embraced the technology to make money and the problem would've quietly disapeared.

but then again when big money is involved, those intoxicated with it's effects (Warner, Universal, Sony etc...)are short sighted and can't see past the end of their wallets

i just don't get it, whats it going to take for them to open their eyes?!? we know they are wrong, indie music people know it's wrong, some of their major money making artists have spoke out that they are wrong, i just don't understand their tatics, scare 'em all has never worked for long in the past, so what makes them think it's going to work now

United WE Stand

Compmore, I agree with you. The RIAA gave filesharing more publicity with their public suit against Napster. If they had played their cards right, they could have just bought Napster and then ..maybe, turn the filesharing service into a for-pay service and grandfather old members in for a time. But, they were too shortsighted, as you said, and believed that the problem would go away.

If the police or RIAA comes to your door say this: I will be _glad_ to cooperate with (whoever) in the _presence_ of my attorney.

**In a country based on law and the legal process, how the hell could unsuspecting victims recieve word of billion dollar lawsuits from the media before hearing about it from any offical source?** -- r0dr0ddy

Very simple. Our "legal" system has been descended to the level of the kangaroo courts you keep hearing about in Third World banana republics and various tin-pot dictatorships, Our copyright laws have been twisted and distorted into what amounts to a Bolshevik straitjacket, in closed-door meetings, and our "elected" officials have essentially been bribed and paid off into becoming de facto rubber stamps for the dictates of special interests of all stripes -- INCLUDING the multinational entertainment-media complex whose idea of maintaining their hold on power is usurping, disenfranchising and enslaving everyone else.

Why the RIAA's "we have everybody in our clutches, heh-heh-heh [diabolical laugh]" stance hasn't provoked even more outrage beyond the base of this website, is a question for the ages.

Should the public hear the drum beat of anything not stifled and muffled by the major conglomerates on a regular basis then they might just question what is going on. The same conspiracy that prevents indies from getting in the major markets also prevents word of this from getting out with anything but their take on it.

I didn't read all the responses so I don't know if this has been brought up before, but it occurs to me that the RIAA picks and chooses who it will sue based on the personal info they illegally obtain about them. They seem to deliberately singling out people in bad financial situations who will have to settle?

Why would that do this? Probably because they don't really want to go to court. If they were to accidentally sue somebody with the resources to fight them, a judge might rule against them and set a precedent that would cause all their other law suits to be thrown out.

We need somebody with good legal and financial resources to masquerade as a poor file sharer and trick the RIAA into the very battle they want to avoid. I suspect that if an examination of all the existing laws happened in a courtroom situation, the RIAA would be found guilty of many crimes and emasculated forever.

Has the RIAA ever even considered that a lot of the music downloaded is FREE anyways? A lot of the music downloaded, people download it because they've heard it on the radio and don't have enough money to go out and buy a cd. all they have to do is get a blank tape, and when it comes on the radio, record it. Then they'd pass it along to a friend who makes a copy, who passes it on... it's sharing, the same as sharing online, but would the RIAA go after those people? NO!
I think all they want is money and to make a big effing stink out of nothing. They don't like that they're losing money (even though they already have millions/billions/or at least thousands--WAY more than an average person would have) and so they're just trying to stop us from downloading when in fact all they're doing is just uniting us together. They don't want us to use p2p to share? Fine. I'll upload music to websites and share it that way. If they weren't being such a**es about it, they'd probably realize there are plenty of ways to make money off of this. Charge money to use p2p applications for unlimited downloads for so many months etc. I'd pay it. It would be so worth it. But no, they have their heads shoved so far up *******, they're too blind to realize they're striking out the wrong way.
I think it's a really sad world that even music, something that should be enjoyed by all and that the creators should be glad to share, turns into just another way to make money. Have a great voice? Ooh goodie! I can make lots of money and become so insanely rich I don't even know what to do with it all! What fun!
Effing morons. Good thing I only download mostly Japanese music these days. America is so effing retarded and hypocritical it makes me sick.
I aplogize for ranting and going off ^^ But the RIAA majorly irks me.

Code or anyone else with regards to this question

Could a independent band sue RIAA for stating filesharing is illegal.. cause is it not in the discetion of the copyright holder. They are doing so much to block us out so is there any legal grounds independents could take?

RIAA is the biggest A-hole on earth.

Downloading vs. Uploading

It's very frustrating to see these terms thrown around almost interchangebly on these boards (and in the media). Let's make a couple of things clear regarding 'downloading' and 'uploading'.

Downloading is the act of copying something from someone else's computer and putting it onto yours. Uploading (or sharing) allows other people to copy something from your computer and put it onto their computer.

There is a difference here. Downloading songs is not intrinsically illegal. In fact, downloading material that you already rightfully own on CD is not illegal (you're simply copying something you already have a copy of and could easily make a backup yourself).

What is illegal is the act of sharing/distributing (uploading) of copyrighted material to someone else.

It seems that people keep throwing around 'downloading' as being illegal. It's not the act of downloading that is illegal unless you do not already own a copy of the material (and granted a lot of people don't). The more important point is that uploading (or sharing) is illegal because you then become the distribution point for potentially copyrighted works.

In fact, if you never share a song but download all day, the RIAA would never know unless they tapped (spy) into your connection to see what you were doing (which has its own legal ramifications). So, it isn't the act of downloading they are filing suit on. It is the act of uploading/sharing that they are filing these suits to stop.

It's very frustrating when people keep using the term 'downloading' in discussing these lawsuits. The RIAA isn't suing for downloading. They are suing because people are sharing (uploading) music to others.

The only way they can find anyone to sue is by looking at what you are sharing. And, even then, if they haven't downloaded the material to determine if it is, in fact, THEIR copyrighted material, they won't have a case. For example, you could have a song labeled 'Metallica - Enter Sandman.mp3' and it, in fact, could contain the sound of an engine revving the entire length. There is nothing illegal about this sound (especially if you created it yourself). It is deceptive, granted, but not illegal to distribute it in this way.

When these people get caught in a lawsuit, the best thing to do is wipe the hard drive completely (zeroing it out) using a strong erase mechanism (this could be construed as tampering/destroying evidence). But, how would they know as long as there's a hard drive in the computer. Better yet, find a large hammer and destroy the original drive so nothing can be recovered from it (being sure to take the entire drive apart and scatter the pieces far and wide). Run and buy a new hard drive and rebuild your computer. Voila, no evidence can be found or recovered as it was never there (on the new drive). If the OS looks recently installed, you can simply blame that on Windows. After all, we all know how stable Windows is what with the recent viruses and worms.

Then, the only thing the RIAA has is a log of the time/date they allege you were infringing (and any possible files they allege you had). In fact, there is no way for them to tie the files they have in their possession that they claim that came from your hard drive to the logfile (either of which could easily have been faked). Since there's no direct evidence on your PC, it'll make it harder for them to prove that your hard drive ever contained the material.

Because all digital information can be faked, it's very easy to say that you weren't file sharing that day and that there's little evidence to prove it. If they can't prove that you actually had files shared on that date, that the files actually contained their copyrighted material and there is no evidence of the files on your hard drive, then it's basically 'he said, she said' and the judge will have to decide what to do (hopefully throwing it out).

Worse, some of these cases may be as a result of hijacking of someone's IP. Meaning, an unsuspecting teen downloaded or installed a piece of software that loaded a proxy/virus onto the computer unintentionally. This then gave someone else the ability to control that computer remotely. This would allow for storage and sharing of files without the owner's knowledge. Makes it very easy to claim plausible deniability.

Also, keep in mind that ISP logs aren't always perfectly in sync with the current time. In fact, if you log off and on frequently, the RIAA could, in fact, be charging the wrong person with the crime. Why? Because the RIAA gives the ISP a time they saw the person online. If that time is even a couple minutes off from one user to the next on a given IP, the ISP could end up giving out the wrong person's name from the log due to ambiguities surrounding when they were online.

Due to the ease with which digital evidence can be faked and without the original equipment to back the RIAA's digital evidence, the RIAA will have a tough time proving that their alleged copyright infringement claim. They have to prove with evidence that you did infringe.

Of course, all this doesn't necessarily mean a judge won't find in favor of the RIAA. Even with the flimsiest of evidence, the judge may still rule in favor of the RIAA (due to other reasons).

This post is not intended to be used as legal advice. Always consult a lawyer when legal issues arise to get the best advice for your case. This post is to be used for information purposes only.

A point keeps coming up, now and then about the bands/authors being the copyright holders. That's not always the case, in fact, it might be rarer than you think. I just did a little research and it appears the publisher's want the copyrights when a band signs up in exchange for enforcement:

Read:

http://www.music-law.com/publishing.html

So, even though the bands/authors are
"supposed" to get a share, it seems the RIAA and its member labels are effectively trying to protect rights that are ASSIGNED to them by artists.

We have not been hearing a lot of good things about payout and of course, everyone knows how in-debt a non-hit band can get to the company for producing the album = zero money left, or "Hey, YOU owe US!"

I have an idea. There was this guy who just decided to sue the RIAA for the amnesty program they were offering for some reason. How about a bunch of other people with good financial resources get together and plan to file each their own individual lawsuit against not the RIAA as a whole, but AGAINST INDIVIDUAL executives of the RIAA!! This would include Cary Sherman, Hilary Rosen, Matt Oppenheim, and I'm sure many more. Or do you think it would be better for a bunch of people to file each their own lawsuit against the RIAA as a whole, so they have hundreds or thousands of lawsuits to deal with?

People could sue individual executives of the RIAA for PRIVACY FRAUD, or the RIAA itself for PRIVACY FRAUD and anti-competitive practices.

Settling makes sense if the RIAA is being reasonable. So far it looks like they just want to inflict some pain and make the news without looking like they are out to totally destroy people's lives. It's a campaign of fear. If the RIAA tried to squeeze too much the victims would rather fight it out in court. I doubt the RIAA really wants to end up in court because there is a chance they would lose. Is there somewhere to donate towards legal defense and counsel for these victims?

If you want to add more doubt get a wireless network and claim someone was tapping into it without your knowledge.

We aren't fighting the RIAA any more. Why not? Why dont we just storm into DC with pickit signs and rebel against what's happenning? All that support groups seem to be doing is supporting the people who get sued. If we want to get rid of this crisis, attend the the crisis, not the crisis victims.

its like, come on!!!! who the hell has 10,000 dollars in their pocket these days?????? u know w/ the sucky economy and all.

60 million filesharing Americans. 60 million bankrupt Americans. Now tell me again RIAA, how exactly will this shore up our economy?

I have often taken time to wonder, to take a line from another conspiracy debate, if there is indeed some sort of "magic bullet" that will wake up the RIAA. I think there is, and that it's going to be on a website like this one, or cdbaby, or fatchucks that will find it. There has to be. No company, or entity, can exist this long w/o making some mistake. I truly believe the odds are against them in the long run. I mean, 60M people are filesharing. The odds are pretty long that EVERYONE settles, and even longer that they WIN against everyone that doesn't.
My line of thinking goes with the law on this one. Sorry folks, but it's true. The law has made many a martyr out of a criminal, but it's also many times been used to stop criminal misuse of power. There are SOOOO many little bullshit laws on the books (a .10 bounty on rat's heads in MI, illegal to keep a frog under your hat in Tx to name a few) that I'm sure there is one out there just waiting to be found that could really put a hole in the RIAA's "golden parachute". Do we have to wait for this to happen?? Nope! We have the privilege and RIGHT to stand for what we believe in, by law.
I've actually heard this debate used in the same sentence as abortion and prayer in schools. How's THAT for keeping good company?? IMHO, this is going to go on for a while, until someone, somewhere has the plums to stand up and say "It's my right to play music anywhere/way/time I want, and no corrupt business with an outdated revenue model can or will take it away from me", then back it up with either $$$ or law. Believe me, it'll happen.
ttmmm

"ronnie71
Date: September 15, 2003 @ 5:16 PM
Code or anyone else with regards to this question Could a independent band sue RIAA for stating filesharing is illegal.."
The short answer is probably NO. The RIAA is lying, but lying per se, is not an actionable case, unless you are involved in a contractual arrangement with someone (as in when you buy something and they misrepresent the product. Then it can be called "fraud".
You have to have a cause of action. Unfortunately, them lying in public statements, usually would not be a cause of action, because, oddly,
they hold no duty to you, the group, or to anyone in a public venue, to tell the truth...
~code

Great comments all. I believe the best way to combat this ridiculous action is to continue to boycott. I can not believe that a company would sue it's previously loyal customer base. This alone is proff that the RIAA is totally out of touc. Out of touch with technology, out of touch with future trends of the music business and out of touch with its customer base.

The internet has caught the RIAA and the music business in general, by surprise.

They are losing the ultimate control they have enjoyed from the beginning. The ability to "pick" who will get contracts and what large distribution chains will distribute the music.

The most effective way we have of fighting this action is simply to not buy. Continue the boycott and tell anyone that will listen. DO NOT BUY!!

Thought provoking question about suing the RIAA for stating that filesharing is illegal. I've wondered the same thing, and this is the only thing I could come up with.
Lying in and of itself is not an actionable case, as CodeWarrior pointed out. The only way I could see using that line to sue would be if there was proof that it hurt them monetarily.
If an independent band could prove that the actions taken by the RIAA were costing them substantial amounts of money, they could sue.
Notice the words PROVE and SUBSTANTIAL. Code is right (as always on this particular issue) about causation. There would have to be a tremendous amount of data showing the revenue streams. Before, after and during the time the statement was out there. My guess is there would also have to be some sort of forecast on future earnings that would be hurt. The band would have to show, beyond reasonable doubt, that the statements made would/could/did cause them to lose money.
Case law is full of these types of suits. Libel, slander, fraud, deceptive trade practice and the like are all closely connected and fall under this heading. Unfortunately, a suit by a band against the RIAA would be an uphill battle, and it would probably get tossed out unless there was a very expensive legal team involved on the part of the band.
So I'd have to agree with Code. The short answer is NO. Mine just took a lot more lines to get there *smirk*
ttmmm