RIAA Countersued For Racketeering
MonsieurEvil
Join Date: 2002-01-22 Member: 4Members, Retired Developer, NS1 Playtester, Contributor
Join Date: 2002-01-22 Member: 4Members, Retired Developer, NS1 Playtester, Contributor
in Off-Topic
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<!--QuoteBegin--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td><b>QUOTE</b> </td></tr><tr><td id='QUOTE'><!--QuoteEBegin-->RIAA sued under gang laws
Last modified: February 18, 2004, 1:39 PM PST
By John Borland
Staff Writer, CNET News.com
It's probably not the first time that record company executives have been likened to Al Capone, but this time a judge might have to agree or disagree.
A New Jersey woman, one of the hundreds of people accused of copyright infringement by the Recording Industry Association of America, has countersued the big record labels, charging them with extortion and violations of the federal antiracketeering act.
Through her attorneys, Michele Scimeca contends that by suing file-swappers for copyright infringement, and then offering to settle instead of pursuing a case where liability could reach into the hundreds of thousands of dollars, the RIAA is violating the same laws that are more typically applied to gangsters and organized crime.
"This scare tactic has caused a vast amount of settlements from individuals who feared fighting such a large institution and feel victim to these actions and felt forced to provide funds to settle these actions instead of fighting," Scimeca's attorney, Bart Lombardo, wrote in documents filed with a New Jersey federal court. "These types of scare tactics are not permissible and amount to extortion."
Scimeca is one of a growing number of people fighting the record industry's copyright infringement campaign against file-swappers, although few have used such creative legal strategies.
According to the RIAA, which filed its latest round of lawsuits against 531 as-yet-anonymous individuals on Tuesday, it has settled with 381 people, including some who had not yet actually had suits filed against them yet. A total of nearly 1,500 people have been sued so far.
The industry group says that "a handful" of people have countersued, using a variety of claims.
"If someone prefers not to settle, they of course have the opportunity to raise their objections in court," an RIAA representative said. "We stand by our claims."
Few if any of the cases appear to have progressed far, however. The first RIAA lawsuits against individuals were filed more than five months ago, although the majority of people targeted have been part of the "John Doe" campaigns against anonymous individuals this year.
Several individuals and companies have started by fighting the RIAA attempts to identify music swappers though their Internet service providers (ISPs).
The most prominent, known by the alleged file-swapper's screen name "Nycfashiongirl," resulted in at least a temporary victory for the computer user. A Washington, D.C., court ruled in December that the RIAA's initial legal process for subpoenaing ISP subscriber identities before filing lawsuits was illegal. Because "Nycfashiongirl" had been targeted under this process, the RIAA dropped its request for her identity.
However, that may have provided only a temporary reprieve. According to the Electronic Frontier Foundation, a civil liberties group that is closely following the RIAA's campaign, the Internet address used by "Nycfashiongirl" was included in the batch of lawsuits filed on Tuesday against anonymous individuals, raising the likelihood that she will be drawn back into the courts.
Separate attempts to fight subpoenas are ongoing in North Carolina and St. Louis, where the American Civil Liberties Union and ISP Charter Communications are respectively challenging the RIAA's information requests.
In San Francisco, computer user Raymond Maalouf has taken the first steps toward fighting the RIAA's suits. His daughters were the ones that used Kazaa to download music, and one of them even wound up in last month's Super Bowl advertisement for Pepsi's iTunes promotion, which featured a handful of teens caught in the RIAA dragnet.
In documents filed with San Francisco courts, Maalouf's attorneys noted that downloading through Kazaa was openly discussed at Maalouf's daughter's school by teachers, and they downloaded songs used in classes. That should be a protected fair use of the music, the attorneys said.
At a status conference held in San Francisco early in February, Maalouf's case was just one of five RIAA lawsuits moving through the courts together, attorney Ted Parker said. However, several of those others involved defendants who appeared close to settlement, he added.
Even RIAA critics look at Scimeca's racketeering-based countersuit as a long shot. But it's worth trying, they say.
"It is the first I've heard of anyone attempting that," said EFF legal director Cindy Cohn. "I guess that is a silver lining of the fact that the RIAA is suing so many people, that there are a lot of lawyers trying to figure out ways to protect folks." <!--QuoteEnd--></td></tr></table><div class='postcolor'><!--QuoteEEnd-->
Pretty imaginative idea, actually. We shall see how it pans out - especially since the precedent that it could set would alter tort law as we know it throughout the country and perhaps end the cycle of lawsuits so prevelant in America...
<!--QuoteBegin--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td><b>QUOTE</b> </td></tr><tr><td id='QUOTE'><!--QuoteEBegin-->RIAA sued under gang laws
Last modified: February 18, 2004, 1:39 PM PST
By John Borland
Staff Writer, CNET News.com
It's probably not the first time that record company executives have been likened to Al Capone, but this time a judge might have to agree or disagree.
A New Jersey woman, one of the hundreds of people accused of copyright infringement by the Recording Industry Association of America, has countersued the big record labels, charging them with extortion and violations of the federal antiracketeering act.
Through her attorneys, Michele Scimeca contends that by suing file-swappers for copyright infringement, and then offering to settle instead of pursuing a case where liability could reach into the hundreds of thousands of dollars, the RIAA is violating the same laws that are more typically applied to gangsters and organized crime.
"This scare tactic has caused a vast amount of settlements from individuals who feared fighting such a large institution and feel victim to these actions and felt forced to provide funds to settle these actions instead of fighting," Scimeca's attorney, Bart Lombardo, wrote in documents filed with a New Jersey federal court. "These types of scare tactics are not permissible and amount to extortion."
Scimeca is one of a growing number of people fighting the record industry's copyright infringement campaign against file-swappers, although few have used such creative legal strategies.
According to the RIAA, which filed its latest round of lawsuits against 531 as-yet-anonymous individuals on Tuesday, it has settled with 381 people, including some who had not yet actually had suits filed against them yet. A total of nearly 1,500 people have been sued so far.
The industry group says that "a handful" of people have countersued, using a variety of claims.
"If someone prefers not to settle, they of course have the opportunity to raise their objections in court," an RIAA representative said. "We stand by our claims."
Few if any of the cases appear to have progressed far, however. The first RIAA lawsuits against individuals were filed more than five months ago, although the majority of people targeted have been part of the "John Doe" campaigns against anonymous individuals this year.
Several individuals and companies have started by fighting the RIAA attempts to identify music swappers though their Internet service providers (ISPs).
The most prominent, known by the alleged file-swapper's screen name "Nycfashiongirl," resulted in at least a temporary victory for the computer user. A Washington, D.C., court ruled in December that the RIAA's initial legal process for subpoenaing ISP subscriber identities before filing lawsuits was illegal. Because "Nycfashiongirl" had been targeted under this process, the RIAA dropped its request for her identity.
However, that may have provided only a temporary reprieve. According to the Electronic Frontier Foundation, a civil liberties group that is closely following the RIAA's campaign, the Internet address used by "Nycfashiongirl" was included in the batch of lawsuits filed on Tuesday against anonymous individuals, raising the likelihood that she will be drawn back into the courts.
Separate attempts to fight subpoenas are ongoing in North Carolina and St. Louis, where the American Civil Liberties Union and ISP Charter Communications are respectively challenging the RIAA's information requests.
In San Francisco, computer user Raymond Maalouf has taken the first steps toward fighting the RIAA's suits. His daughters were the ones that used Kazaa to download music, and one of them even wound up in last month's Super Bowl advertisement for Pepsi's iTunes promotion, which featured a handful of teens caught in the RIAA dragnet.
In documents filed with San Francisco courts, Maalouf's attorneys noted that downloading through Kazaa was openly discussed at Maalouf's daughter's school by teachers, and they downloaded songs used in classes. That should be a protected fair use of the music, the attorneys said.
At a status conference held in San Francisco early in February, Maalouf's case was just one of five RIAA lawsuits moving through the courts together, attorney Ted Parker said. However, several of those others involved defendants who appeared close to settlement, he added.
Even RIAA critics look at Scimeca's racketeering-based countersuit as a long shot. But it's worth trying, they say.
"It is the first I've heard of anyone attempting that," said EFF legal director Cindy Cohn. "I guess that is a silver lining of the fact that the RIAA is suing so many people, that there are a lot of lawyers trying to figure out ways to protect folks." <!--QuoteEnd--></td></tr></table><div class='postcolor'><!--QuoteEEnd-->
Pretty imaginative idea, actually. We shall see how it pans out - especially since the precedent that it could set would alter tort law as we know it throughout the country and perhaps end the cycle of lawsuits so prevelant in America...
Comments
meh, sounds like even people who want it to work don't think it will. I hope it does though.
about time someone started suing them back, it will be interesting to see how it plays out
Good point actually. That hadn't occured to me until I read what you said, but I see where you're coming from, and anything that might end this ridiculous lawsuit culture has got to be a Good Thing.
I am glad some one is hitting them back, I to doubt it will work, but still <!--emo&:p--><img src='http://www.unknownworlds.com/forums/html//emoticons/tounge.gif' border='0' style='vertical-align:middle' alt='tounge.gif' /><!--endemo-->
they might think twice about trying to scare people agian <!--emo&:p--><img src='http://www.unknownworlds.com/forums/html//emoticons/tounge.gif' border='0' style='vertical-align:middle' alt='tounge.gif' /><!--endemo-->
(who rememberes thew RIAA Cop Impersinators?)
it states that if data is lifted from a computer in order to harm the user it violates the patriot act.
Would be nice to make the government defend someone against the RIAA.
...no? =\
But you forget, the Patriot act isn't to protect people, its to make it easier for the government to arrest and gather evidence w/o paying attention to silly things like laws...
And I still say it should it should be unconstitutional to name something a Patriot Act.. I mean its stupid, "Well, you're against the Patriot Act!? YOU MUST HATE AMERICA!!!!" type situations arise so easy...
But I'm ranting...
I don't see why you people are so mad at the RIAA. We all know downloading music is illegal. I'm not preaching that everyone stops and tries to do good in the world, but if you get caught, suck it up. You knew the risk when you started downoading.
Age or sex or occupation doesn't matter.
And then the main income from music would come from public showings of the music (as is the main aspect of anti-plagiarism, not piracy, but oh well).
That way, the artist and record companies get paid for:
selling CDs
advertisemetns (for MP3 players or something) on their free download site
allowing their music to be played on MTV or VH1
liscensing the music to movies, films, television series and others
That way, everyone comes out on top <!--emo&:D--><img src='http://www.unknownworlds.com/forums/html//emoticons/biggrin.gif' border='0' style='vertical-align:middle' alt='biggrin.gif' /><!--endemo--> . Now, if only they would stop selling CDs at 500% profit. Movies and games are a little more understandable, but music?
I think the RIAA has to stop acquiring people's names through their ISP...
Its not the ends that I have a problem with, its the means.
Clogging our legal system, suing teenagers and the elderly for millions of dollars, the fact that most of the lawsuits would be thrown out if they ever got to court (however its just cheaper for everyone to do a settlement out of court), and borderline Police Impersonation, that's the stuff I don't agree with.
[edit]
Oh, and once I found out how royalties work that made me care even less. Its like telling a police officer somebody stole all your cocaine...
[/edit]
Basically, musicians could do what Valve is doing with their Steam distribution system, only by the time they adapt enough homes will have hi-speed internet to _completely_ cut the middlemen out.
Enjoy your last few decades, RIAA.
I am glad some one is hitting them back, I to doubt it will work, but still <!--emo&:p--><img src='http://www.unknownworlds.com/forums/html//emoticons/tounge.gif' border='0' style='vertical-align:middle' alt='tounge.gif' /><!--endemo--> <!--QuoteEnd--> </td></tr></table><div class='postcolor'> <!--QuoteEEnd-->
Exactly, fight back if they're trying to take you down.
I separated this for easy quoting, in case you actually do quote me.
You really can't blame the RIAA for clogging the legal system. It's not their fault that there are so many people stealing out there. They're just getting back what is rightfully theres. Like it or not.
Teens and/or elderly people must pay for the consequences of their actions like the rest of us.
I think you're generalizing on "most" lawsuits would be thrown out of court. If you're caught stealing, you're caught stealing.
Finding out how the people were caught stealing is where RIAA keeps doing things wrong. I don't defend them for that, and I don't think unlawfully attaining information in the pursuit of a criminal is proper.
Settling out of court is cheaper, and let's face it - if the people can't pay for the CD, they can't pay for the court fees.
I don't get the police impersonation part, so you're gonna have to give me a hint there.
This lawsuit is a long shot. Why would this lady be mad that the RIAA are "bullying" people into settling? For crying out loud, the copyright law allows the copyright owner to get $150,000 (if he wins)! I think a few thousand is a good deal.
Besides, why fight in court when you know you're wrong?
GIve me a R..
Give me a I..
Give me an A..
Give me another A..
What does that spell?
LOSER!!!!!! =P
in 2002 the RIAA made nearly 13 million dollars in profit AFTER overhead
in 2003 because of P2P, the RIAA made only 11 million in profit AFTER overhead...
They are soo gonna go bankrupt by all of us downloading music *rolls eyes* /sarcasim off
You make more money than I do. I'm going to go into your house and steal the money from your wallet. You catch me while I'm doing this. But you don't mind, because you have more than enough money. The couple thousand in your wallet doesn't matter.
Are you <b>seriously</b> going to defend such a "valid" point when it becomes personal? Or are you defending the point because your guilty conscience is struggling to find an excuse in which to appease itself?
<!--QuoteBegin--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td><b>QUOTE</b> </td></tr><tr><td id='QUOTE'><!--QuoteEBegin--><span style='font-size:14pt;line-height:100%'>Writer/publisher mechanical royalties</span>
First, there is the calculation of mechanical royalties for writers and publishers. These royalties are paid by the record company to the publisher. The publisher then pays the writer a share of the royalty (typically split 50/50).
In the United States, the royalties are based on a "statutory rate" set by the U.S. Congress. This rate is increased to follow changes in the economy, usually based on the Consumer Price Index. Currently, the statutory rate is $.08 for songs five minutes or less in length or $.0155 per minute for songs that are over five minutes long. So, for example, a song that is eight minutes long would earn $.124 for each recording sold.
As in most areas in the business world, however, there is room for negotiation. It is not uncommon -- in fact, it is more the norm -- for record companies to negotiate a deal to pay only 75% of the statutory rate, particularly when the writer is also the recording artist. (See the "Controlled Composition Clause" below.) Although there is a statutory rate, there is no law against negotiating a deal for a lower one. Sometimes it is in the best interest of all parties to agree to a lower rate.
<span style='font-size:14pt;line-height:100%'>Recording-artist mechanical royalties</span>
Recording-artist royalties (and contracts) are extremely complex and a hotbed of debate in the music world. From the outside, the calculation appears fairly simple. Artists are paid royalties usually somewhere between 8% and 25% of the suggested retail price of the recording. Exactly where it falls depends on the clout of the artist (a brand new artist might receive less than a well-known artist). From this percentage, a 25% deduction for packaging is taken out (even though packaging rarely costs 25% of the total price of the CD or cassette).
That sounds simple enough, but there are many more issues that affect what a recording artist actually makes in royalties.
Free goods - Recording artists only earn royalties on the actual number of recordings sold -- not those that are given away free as promotions. Rather than discounting the price to distributors, many record companies give a certain number away for free (about 5% to 10% depending on the artist). Recording companies also give away many copies to radio stations as "promo" copies. There is also a reduction in royalties made for copies of the recording sold through record clubs.
Return privilege - Recordings in the form of CDs or cassettes have a 100% return privilege. This means that record stores don't have to worry about being stuck with records they can't sell. Most other businesses don't work this way, but the music industry has to be more flexible and timed to demand. What's hot today may be forgotten tomorrow... This leads us to reserves. The recording company may hold back a portion of the artist's royalties for reserves that are returned from record stores. (Usually about 35% is held back.)
90% - Back in the days of vinyl records, there was a lot of breakage when record albums were shipped out for distribution. Because of this, recording companies only paid artists based on 90% of the shipment, assuming that 10% would be broken. Even as vinyl was phased out, this practice continued. Today it is gone for the most part, but there are still a few holdouts.
So, here is how it looks so far. Let's say a CD sells for $15. Right away we deduct 25% from that for packaging, which makes the royalty base $11.25. Now let's say our artist has a 10% royalty rate and that his CD sells one million copies. That sounds great! The artist would earn $1,125,000! Except 10% of those were actually freebies, so we really have to calculate that royalty based on 900,000, which makes the royalty $1,012,500, and of course, there are few costs we haven't talked about yet.
<span style='font-size:14pt;line-height:100%'>Advances and recoupment</span>
Typically, when recording artists sign a recording contract or record a song (or album), the record company pays them an advance that must be paid back out of their royalties. This is called recoupment. In addition to paying back their advance, however, recording artists are usually required under their contract to pay for many other expenses. These recoupable expenses usually include recording costs, promotional and marketing costs, tour costs and music video production costs, as well as other expenses. The record company is making the upfront investment and taking the risk, but the artist eventually ends up paying for most of the costs. While all of this can be negotiated up front, it tends to be the norm that the artists pay for the bulk of expenses out of their royalties.
Let's see what these recoupable expenses do to our artist's $1,012,500 royalty we calculated earlier. Suppose the recording costs were $300,000 (100% recoupable), promotion costs were $200,000 (100% recoupable), tour costs were $200,000 (50% recoupable), and a music video cost $400,000 (50% recoupable). That comes out to:
$300,000 + $200,000 + $100,000 + $200,000 = $800,000
Suddenly our artist isn't making a million plus, he's making $212,500. But don't forget there is also a manager to be paid (usually 20%), as well as a producer and possibly several band members. The artist won't see any royalty money until all of these expenses are paid.
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<!--QuoteBegin--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td><b>QUOTE</b> </td></tr><tr><td id='QUOTE'><!--QuoteEBegin-->
<span style='font-size:14pt;line-height:100%'>They're BROKE?</span>
Multiplatinum artists like TLC and Toni Braxton have been forced to declare bankruptcy because their recording contracts didn't pay them enough to survive.
Florence Ballard from The Supremes was on welfare when she died.
Collective Soul earned almost no money from "Shine," one of the biggest alternative rock hits of the '90s, when Atlantic Records paid almost all of their royalties to an outside production company.
Country music legend Merle Haggard, with 37 top-10 country singles (including 23 #1 hits), never received a record royalty check until he released an album on the indie punk-rock label Epitaph.
Source:Courtney Love's letter to recording artists
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But the price gouging and them not getting AS rich off of it just gets under my skin. I know I know, two wrongs dont make a right, but 3 lefts do, yeh. I still think though that their tactics in buisiness, and in aquiring evidence, both legal and illegal, and the amount of money the gouge off of each cd, is ridiculous and needs to be put in check, and by massive downloading and p2p ethernet style vigilante tactics it should do just that by bringing them down, or atleast giving them a very stiff wakeup call that they are obsolete, and we will circumvent them. If the RIAA does ever come after me for whatever reason, stupid or not or even finanically suicidal or not, I'm not going to settle out of court, I'm going to fight them tooth and nail and appeal appeal appeal appeal and appeal until I cant "humanly" do it any longer. Why? I refuse to be bullied. So legal or illegal, wrong or right, despite actions that give justification or not, I prefer to die on my feet than live on my knees.
This matter will never go anywhere as it is subjective. Subjective matters never have one true/right answer and here this is the case.
~ DarkATi
Here's a good example of record company practice. The BPI (British Phonographic Industry - the UK RIAA) went after a site called cdwow.com. cdwow.com source their CDs from Asia and sell them cheaply here in the UK. It's called parallel importing. Now the BPI said they can't do this and must source from the EU. The result ? cdwow.com must pay inflated EU prices which cuts on their margin. Doesn't say much for globalisation does it ? <a href='http://www.theregister.co.uk/content/archive/35022.html' target='_blank'>Source</a>.
To anyone wibbling on legalality, I say this: applying the law doesn't work when the people don't agree with the law. Here in England, it's illegal to smoke marijuana. But millions of people smoke it every week. They are willing to break the law because they don't agree with the law. When a few people break the law, you lock them up. When millions break the law, you change the law. This is the case with music downloading. It is so prevelant, it's time for the music companies to review their position on it.
This is where the music insudtry are at the moment:
- music is overpriced.
- the quality of the mainstream content is awful. Instantly forgettable rubbish.
- a small proportion of artists get paid vast amounts of cash.
- only a small amount of artists get exposure via the record company outlets.
- people are willing to pay decent artists for good music.
The result ? The public download illegally.
If the record industry produced music that was affordable and covered an honest representation of what was out there, then people would pay for it. But at the moment, people are voting with their feet, and downloading illegally. And good for them.
What I think will happen if the music industry change is pretty much what has already been said. A new internet industry will emerge. This industry will effectively connect the artists directly to the paying public. The charge for the content will be small but more of it will be sold. Now can someone set this up ? Please ?
- music is overpriced.
- the quality of the mainstream content is awful. Instantly forgettable rubbish.
- a small proportion of artists get paid vast amounts of cash.
- only a small amount of artists get exposure via the record company outlets.
- people are willing to pay decent artists for good music.
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Now I never really was into the whole illegal music downloading thing. Sure I did it but now my entire music collection is legal.
The first point I would argue against though. Have you looked in places like HMV? HMV (Or at least the online componant) have New Releases at £9.99 and things like the current "3 for £20". Of course this isn't very useful if your looking for stuff thats a little harder to come by rather than the typically mainstream stuff. Half of it is just a case of looking around. Half the reason I've gone on a music spending spree is mainly having a CD is just that little bit nicer than having a group of files on my hard disk.
However I will agree on the other points you make. It is hard for many bands to achieve widespread exposure and the ones that do see to be either take ages to earn it or are manufactured. Of course the success storys go on to earn obsene amounts of money (I mean if you really want to see what I mean go and watch an episode of MTV Cribs) Problem is with these success storys comes a problem. The other not so successful artists don't get the exposure and thats the sad thing. The decent artists just don't get the exposure they deserve. The only reason I heard of Soil is through Kerrang and thats Cable TV.
Yep, use it all the time. Its a great piece of software. I've got all of my friends on my network. Viva la revolution!
(I'd like to see them just try to get their claws through a 2048 bit key <!--emo&:0--><img src='http://www.unknownworlds.com/forums/html//emoticons/wow.gif' border='0' style='vertical-align:middle' alt='wow.gif' /><!--endemo--> <!--emo&:D--><img src='http://www.unknownworlds.com/forums/html//emoticons/biggrin.gif' border='0' style='vertical-align:middle' alt='biggrin.gif' /><!--endemo--> )