boycott-riaa.com - Article: On the Importance of Elektra v. Barker

On the Importance of Elektra v. Barker

Posted by Mike (Shmoo) on April 19, 2006 at 1:18 AM (printer friendly)

On the Importance of Elektra v. Barker

Tuesday, April 18, 2006

This is a personal opinion piece by Ray Beckerman, who is one of the attorneys representing Tenise Barker in Elektra v. Barker. Thanks to Jon Newton of p2pnet.net who inspired it.

What is the most important RIAA case in the country?

Arguably it's Elektra v. Barker, pending in Manhattan federal court before Judge Kenneth Karas, a recently appointed judge who is a former federal prosecutor.

Not because there's anything different about the complaint -- it's the exact same boilerplate complaint the RIAA has used in 19,000 other cases.

Not just because Ms. Barker made a motion to dismiss the complaint -- i.e. attempting to stop the lawsuit in its tracks on grounds that would be fully applicable to ALL the RIAA's cases -- because there are probably a dozen other cases in which such motions have been made and are pending.

It is the most important case because the RIAA has made it so.

The RIAA apparently made a considered decision to choose this time and place to go for broke.

The RIAA -- seemingly deliberately -- provoked a massive confrontation, in which the MPAA, the American Association of Publishers, and the United States Attorney General, are lining up against not only Ms. Barker and all the other RIAA victims out there, but against the Electronic Frontier Foundation and the trade associations which represent most of the giants of the internet and computer industries.

Ms. Barker made a simple motion to dismiss the complaint, saying it did not give her adequate notice of the infringement she's accused of.

In response, the RIAA made its most shocking and outlandish arguments to date, claiming that merely having a 'shared files folder' on one's computer, and thereby 'making files available for distribution', is in and of itself a "distribution" and a copyright infringement. I.e., even if the recordings were legally obtained, and even if no illegal copies were ever made of them, the defendant is still guilty of copyright infringement.

Learning of this, The Electronic Frontier Foundation, The Computer & Communications Industry Association, and the U. S. Internet Industry Association -- realizing that if this absurd argument were accepted the entire internet might be shut down in the United States, since the internet is nothing more than a giant network of hyperlinks making files 'available', and also realizing that Ms. Barker doesn't have the financial resources to wage a full scale war protecting the entire internet from destruction -- were quick to file amicus curiae briefs pointing out to Judge Karas the absurdity of the RIAA's arguments.

Shortly thereafter the MPAA filed an amicus brief supporting the RIAA's argument, the American Association of Publishers requested permission to file a similar brief, and the United States Department of Justice wrote to the Court indicating the possibility of filing a "Statement of Interest".

All to collect about $6000 from a young nursing student who lives in the Bronx?

I don't think so.

Links to all the applicable litigation documents are collected under Elektra v. Barker in
http://recordingindustryvspeople.blogspot.com/2006/04/index-of-litigation-documents.html and
http://info.riaalawsuits.us

(Fortunately, publicly filed documents are in the public domain -- last I heard -- so I can still lawfully "make them available" to you.)

-R.B.

User Comments (These do not necessarily reflect the beliefs of this site)


independentm...	Date: April 19, 2006 @ 1:24 AM "Lets just do it. Unplug the internet and move on with our lives." By _-Jile-_ (originally posted at p2p.net) "Look. ISP's, save us all the hassle - disconnect all your core lines and walk away from the internet. While it's the best means mankind has found yet to interconnect the globe, it's also the world's greatest weakness given various leaders and companies that have dictatorial power over legislation will undermine everything our various countries have stood for and, for that matter, the very reason America was even created. When a government becomes too self-interested and disconnected from the will of the people, we're called to stand up and overthrow them to put in place a new government that represents the will of the people. Yes, I know those are words by a few Americans back before the internet and before the global society as we know it today existed - but it's a calling to everyone who's ever heard those words. Being American isn't about living in America - it's about standing for freedom and justice! Somewhere, that's been lost on our leaders here and our ideals are no longer represented. We've been sorely misrepresented and you know what? Our children are changing the world. How? How many kids do you know that chat daily on the net - with people in dozens of different countries - without judging them for looking different or speaking different? On the net, our kids are learning impartiality and equality among ALL men and women. On the net, the ideal that all women are created equal and that no one should be judged by the color of their skin but by the content of their character has become a reality. It's hard to do in great moves in the real world, but the net makes those changes happen. What in the heck am I ranting about? First I say kill the net and then I show why it's more important than any stupid (faked) trip to the moon or mars. When you look at this little blue speck out in space - we've done a lot of things to be embarrassed about should God's son come today - a lot of mistakes that have pulled us further apart as a global people and this global internet has been our best link into an informed, global society instead of our respective countries being closed off, and the only knowledge we know about other countries being what our governments and our history books tell us. So go ahead - take away the internet. All in the name of helping society block movie and music shares. We've had a taste of information freedom - without dictatorial lines. Our various governments won't be able to keep up with the changes people make to keep interconnected. From Undernets to private networks through the internet - people WILL remain connected. We're not going back to the stone ages just because our governments have no spine. But this really did make me wonder about something. There was a comment about 'Daddy, where you when the internet died' or something to that sentiment. If we're to really go through and be taken literally, effectively banning the internet and all it's effective functions, thereby killing companies being able to use ATM through the internet and ebusiness as a whole, then as dependant as people and businesses have become on the use of the internet, we'd see an instant flush down the toilet of our global economy. But the internet isn't that important, right? It's not 'that' big a deal, right? It's just some stupid lawsuit about music and movies, right? Something to realize: it's NEVER 'just' about one thing and to say the 'internet' really talks about thousands of things - millions of things. But don't worry. Go back to your normal happy life and forget all about this nasty stuff going on. Everything will be juuust fine without you worrying about it. Right? Get off your butt and DO something. Contact your Congressperson. Contact your governor. Contact the puppet president. Because if crap like this is permitted to get through - and you've done nothing - it's YOUR fault, just as much as the morons writing the lawsuits and it's on YOUR head. Just my 10 cents." -- _-Jile-_

IFeelFree	Date: April 19, 2006 @ 12:07 PM Originally posted by WaltC on ArsTechnica: "What I want to know is where is the DoJ when you need it? Where is the application of Federal antitrust law when you need it? What is the RIAA if not a shell company representing a trust of companies as defined by the RIAA's current incarnation as an identifiable group of corporations involved in an open and ongoing conspiracy to not only fix prices in a specific market, but also to fix market conditions themselves in that specific market? To represent the aims of the corporations represented by the RIAA, the RIAA employs hundreds if not thousands of lawyers in all 50 states which are all seeking the same market 'remedies' uniformly, through every local legal channel that they can suborn to their purposes. If the RIAA itself isn't now a classical trust deserving richly of US government anti-trust action, I'll eat my hat. The problem as I see it is that legally the RIAA ought not to be able to bring the first lawsuit, precisely because in bringing suits as it is guilty of doing nation-wide, the RIAA has literally become the legal equivalent of a trust of companies conspiring to fix market conditions favorably to themselves. Rather, the DoJ ought to exercise its power to dissolve the RIAA while simultaneously allowing the separate companies involved in currently funding the RIAA to bring copyright suits whenever and wherever they wish to do so, providing that those companies individually assume the burden of proving financial damages on a case-by-case basis where they believe their copyrights have been suborned or violated. Frankly, I do not think that original US copyright law ever conceived of an entity like the current RIAA arising. Indeed, the traditional RIAA was just a weak shell the funding companies contributed to simply to promote the general consumption of their products, much in the way that dairy farms band together to produce 'Drink Milk' television commercials, and so on. For years, this is all the RIAA ever did, at least to my recollection and knowledge. The current monstrosity calling itself the RIAA is something altogether alien to the RIAA of old, and as I say I think its behavior legally fits the definition of a trust of companies beautifully. IMO, if the RIAA of today is not a classical trust, then what ever would be? I also think that the very nature of the RIAA's national and unified legal strategy to date has been to change the nature of copyright law from laws created solely to protect the financial interests of copyright holders through civil due-process which must prove financial damages on a case-by-case basis, to wholesale statutory attacks on the freedoms of consumers at large, whether or not they happen to be guilty individually of copyright violations. In short, the whole tactic of the RIAA to date has been to assert through legal action that 'We have no need to prove anything, but we require that the freedoms consumers have enjoyed for decades be abridged because we believe we will earn more money in the process.' 'We' being the operative word here in terms of what is a clear and ongoing conspiracy among a group of companies to fix market conditions. The simple and effective remedy to all of this, I believe, is that the DoJ simply find the RIAA to be a legal trust and that the DoJ dissolves it. In the aftermath, perhaps then the companies currently wasting so much time and money funding the unified efforts of the RIAA shell on their behalf could return to attempting to create the kinds of products people wish to buy at the price points people wish to pay for them. And in the aftermath, perhaps the RIAA could return to being the jointly funded promotional entity it used to be. If this is unacceptable to any of these companies, then perhaps those disaffected by having to compete in the markets they wish to control can find something better to do than selling media products. Last, I don't think the EFF's lower-court battles with the RIAA in various locales will be of much effect overall in actually solving this problem. The RIAA of today is a rogue beast which only the DoJ has the power to effectively castrate, in my opinion."

gfmlcka	Date: April 19, 2006 @ 4:48 PM Excellent quote IFF.

gdZiemann	Date: April 19, 2006 @ 7:31 PM The DOJ punish the RIAA for antitrust? Not as long as the Senate Judiciary Committee is comprised of RIAA lackeys. Not as long as the labels can blow off any investigation by asserting that, as a foreign company, they are out of the jurisdiction of the US government.

CopyrightLaw...	Date: April 20, 2006 @ 11:30 AM The DOJ punish the RIAA for antitrust? Not as long as dollars can be put into our lawmakers hand's to continue to ignore what is going on, and work on passing legislation that provides more protection for copyright holders. Lately, the DOJ wouldn't know a violation of antitrust if it came up and bit them on the ass.