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“Jane Doe” Settles With RIAA

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I am very unhappy about this, but I certainly can understand it from her point of view:

    An anonymous Boston College student yesterday ended a legal fight to keep her identity secret from the music recording industry, which wanted to sue her for allegedly distributing copyrighted songs over the school’s computer network.

    The student reached an out-of-court settlement with a recording industry trade group and dropped her motion to quash a subpoena that had sought her name and address. She identified herself to the recording industry, but court papers still refer to her as Jane Doe.

    The American Civil Liberties Union and a private lawyer represented the woman without charge, arguing that the subpoena violated her right to free speech and due process, after Boston College said it planned to reveal her identity.

    But the student grew weary of the lawsuit and ended it by agreeing to pay a few thousand dollars without admitting or denying wrongdoing, said her lawyer, David Plotkin, an associate with the Boston firm of Prince, Lobel, Glovsky & Tye. He would not reveal the precise amount of the settlement, but said it was generally in line with previous file-sharing settlements of $5,000 or less.

    “Her sense was that even if she prevailed, the recording industry would find another way to come after her,” Plotkin said. “It’s a David and Goliath situation, and the Goliath just wasn’t going to go away.” [Boston Globe]

So even the brave and defiant Jane Doe was worn down by the process and decided to go back to being a person rather than a brave symbol and test case. The vast discrepancy in resources and the time required to pursue such a case – what else does the RIAA have to do? – are why this campaign borders on legal extortion.

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About Eric Olsen

  • http://www.blogbloke.com BB

    R.I.P. RIAA!!! I think I’ve said it all.

  • http://www.tude.com/ Hal Pawluk

    “The vast discrepancy in resources and the time required to pursue such a case – what else does the RIAA have to do? – are why this campaign borders on legal extortion.”

    Really?

    I would have thought the discrepancy might have been balanced by the theft of intellectual property.

  • http://www.blogbloke.com BB

    Oh Really??? It’s so hard to be humble when you’re right!

    I suggest that you look up the definition of “theft of intellectual property”. A good place to start would be Kevin Heller’s explanation (an intellectual property lawyer) at: http://techlawadvisor.com/#106643885755174557.

    He also happens to support the RIAA boycott.

    Bummer.

  • http://www.tude.com/ Hal Pawluk

    Ah, the gang is back, but I don’t think “he” needs a gang defense, because I didn’t attack “him”, just disagreed with his position on the issue.

    My position is that theft is theft.

    About 20 years ago, I wrote a software program that ended up selling 250,000 copies and I collected royalties on each and every copy. In the interim, I also came up with a few programming items that I handed out free, and currently have a few free Dreamweaver extensions up on the Macromedia site.

    The choice on whether I get payment for any of these should be mine, not yours.

    Similarly for music.

  • Eric Olsen

    regardless of whether you think it is right or wrong, copyright infringement is not “theft,” it is more akin to tresspassing

  • http://www.blogbloke.com BB

    I don’t know who the “gang” is but unfortunately this issue is not as simple as some would like to suggest. I too provide software on my website and have been ripped-off without so much as a thank you. But that has nothing to do with this RIAA scandal nor does it alter the fact the law suits are wrong in every sense of the meaning.

  • http://www.tude.com/ Hal Pawluk

    No.

    There’s generally no loss of prospective revenue with a trespass.

    Taking copyrighted material that has a price on it and using it the same way a purchaser would have is more like sneaking into a concert without paying. Only more so.

  • http://www.makeyougohmm.com/ TDavid

    I believe that Eric has posted (please correct me if I’m wrong) before that he didn’t compare this music situation to software infringement when I brought up a similar situation.

    The BSA (Business Software Alliance) applies severe financial penalties for using software without paying for seat.

    I don’t think the music comparison is all that different, but I do agree with his point about music being already essentially free on the radio and you can’t use commercial software for free over the radio.

    But I would tend to agree more often than not with Hal’s point of view on the use of any material created: The choice on whether I get payment for any of these should be mine, not yours.

  • http://www.tude.com/ Hal Pawluk

    “I don’t know who the “gang” is but …”

    There’s a theory that has been around since the early CompuServe days about the psycho-dynamics of groups on the Internet (bulletin boards in my early days).

    This theory holds that in many such groups, a cadre of leaders who dominate the group develops. Surrounding this half-dozen or so luminaries is a satellite cloud of others who also appear reasonably frequently, but generally defer to the wisdom of “the big dogs.”

    When an “outsider” shows up and appears to “attack” one of the tacitly-appointed leaders, members of “the pack” will immediately jump on the upstart.

    Could just be a bunch of psycho-babble, though.

  • Eric Olsen

    Hal, That is very interesting and you certainly see it on the bigger blogs that have comments, and between blogs as alliances have formed. But I am also confused as to what that has to do with this specific discussion.

    The “he” BB was referring to was Kevin Heller, so I am not sure how that pertains here, but regardless your “concert” analogy would only hold if file sharing can be seen as taking the place of sales, and many studies have shown that file sharing may actually increase sales, let alone not replace them, especially for lesser-known artists. It’s definitely not theft because nothing is lost, and I don’t think the concert analogy holds either because the person sneaking into the show is in theory taking the place of a paying customer. Sharing is using property without permission, sounds like trespassing to me.

    TD has my view essentially correct regarding software.

  • http://www.tude.com/ Hal Pawluk

    “and many studies have shown thatfile sharing may actually increase sales, let along not replace them, especially for lesser-known artists.”

    I don’t know what studies you’re looking at, but overall CD music sales have declined 13% since 1999 (Wired Mag Oct/3 issue).

    Besides the stolen music, there are a couple of other things happening:

    1. Some groups make most of their money off concerts, so for them it makes sense to try to get more attendance at concerts. Some might do that by uploading free songs.

    2. Lesser known groups can in fact gain some measure of fame by spreading free songs around and hoping to get a spark that will allow them to make some money off it. (This would have no effect on lowered sales, since they’re not selling anything to speak of yet.)

    But in both cases, it must be a matter of choice. The idea that “it costs too much so I’ll just take it” is both immoral and illegal, no matter what amount of sophistry is applied.

    “But that has nothing to do with this RIAA scandal nor does it alter the fact the law suits are wrong in every sense of the meaning.”

    That’s not a fact; it’s your opinion.

  • http://www.tude.com/ Hal Pawluk

    “I don’t think the music comparison is all that different, but I do agree with his point about music being already essentially free on the radio and you can’t use commercial software for free over the radio.”

    Radio music is free to listeners, but artists do get paid for radio play.

  • http://www.blogbloke.com BB

    “That’s not a fact; it’s your opinion”

    Ditto!

    So if I understand you correctly you are all in favor of 12 year olds, single moms and grandparents being wrongfully sued. And you don’t think there is a better way? Hmmm. Ok, everybody has a right to an opinion … I guess.

  • Eric Olsen

    exactly, and that is why a similar blanket license, tax or fee should be put in place to get the copyright holders paid without unduly infringing on the rights of consumers, or having to disinvent the Internet.

    Again, “stealing” and “theft” are inappropriate words that are not applicable and only get in the way of open discussion. Words matter.

  • http://www.blogbloke.com BB

    Couldn’t have said it better myself Eric … “the gang”.

  • http://www.tude.com/ Hal Pawluk

    BB: “So if I understand you correctly you are all in favor of 12 year olds, single moms and grandparents being wrongfully sued”

    I said that? Where was I, and what was I doing at the time? Do refresh my memory.

    “Wrongful suits” are not something anyone should want, but those who steal should pay the penalty. Property rights are an underpinning of our civilized society. Applying the law to maintain those rights is not a “wrongful” action.

    Eric: “”stealing” and “theft” are inappropriate words that are not applicable and only get in the way of open discussion. Words matter.”

    Words do matter, much more than political correctness, so here are some definitions.

    “stealing”: 1. To take (the property of another) without right or permission.

    “theft”: 1. The act of stealing.

    Let’s use the right words and deal with the situation in a realistic manner. It matters.

  • Eric Olsen

    Again, I agree that the topic is very important, and the right words should be used in order to compare like with like; but the right words are not “theft” and “stealing” just because you say they are.

    The law (even the vile DMCA) does not say they are. Common understanding of the meanings do not say they are. If copyright violations were the same as theft there wouldn’t be all kinds of exceptions like fair use, educational usage, or parody.

    Precision is key to working out the next set of values that will eventually be codified into law. File sharing – as practiced by 60 million Americans – is not going to go away just because you and the RIAA want it to.

    That’s why the legal campaign is so pointless and counterproductive, as well as arbitrary and unfair: the larger behavior will not change, has not changed and will not change, and the few being targeted are basically random scapegoats. The only fair way to do this would be to go after all 60 million, but as soon as you say that, the absurdity of trying to legislate a sea change in the morality of 20% of the entire population becomes clear.

  • http://www.blogbloke.com BB

    Déjà vu. Again I defer to Kevin Heller’s explanation (an intellectual property lawyer) at: http://techlawadvisor.com/#106643885755174557.

    Hal, you have not offered any plausible alternatives and in the same breath you fully support the RIAA. Accordingly, it should go without saying that you are indeed “in favor of 12 year olds, single moms and grandparents being wrongfully sued”. These are actual cases that I am referring to and if you are for the RIAA then you are also condoning this abominable conduct.

    I believe I have already stated in other posts that the RIAA has no way of knowing who is actually downloading on a computer. They are merely suing the person who is paying for the ISP service. Accordingly, if the computer is shared there is a very good probability the wrong person is being sued. The RIAA knows this and as I have said before it is the digital equivalent of throwing darts blindfolded with malicious intent and disregard for the damage it is causing. That is irresponsible and an abuse of process – period.

  • http://www.blogbloke.com BB

    Correction: Deja vu

  • http://www.tude.com/ Hal Pawluk

    Eric: “Theft of intellectual property” is a well understood concept so “theft” is the correct term, regardless of the spin that some might want to place on it.

    As for the statement that “the larger behavior will not change, has not changed and will not change,” the same could be said about drug use or numerous other illegal behaviors that should not be legalized. Just because many do something does not make a behavior acceptable.

    And your word is “scapegoat” but mine is “example.”

    Certainly it’s a complex situation and “the genie is out of the bottle” in many respects, but hiding it behind language parsing is not going to bring it closer to a resolution.

    BB: What should go without saying is that I said what I said, not what you said I said. Your straw man is your straw man, not mine.

  • http://www.blogbloke.com BB

    Very well put Hal ???

  • http://www.makeyougohmm.com/ TDavid

    The straw man comment loses me, Hal, and I’ve seen The Wizard of Oz several times ;)

    Eric’s point of view does surprise me a bit since he is a writer and has literary works that can be taken and put up on other websites without his permission. I wonder what he’d define this type of action as? Trespassing or theft?

    I call this both. I say give the perp thirty years of manual spam filtering.

    I’m sure Eric will have a logical answer for my question when/if he sees this.

  • http://www.tude.com/ Hal Pawluk

    “The straw man comment loses me, Hal, and I’ve seen The Wizard of Oz several times ;)”

    Sorry about that – wrong movie :-) Here’s the definition I used:

    2. An argument or opponent set up so as to be easily refuted or defeated.

    It’s a technique you’ll often seen in political debates or some of the shows like Crossfire on CNN (you lose points if you try it highschool or college debates :-).

    Essentially, the person arguing sets up a premise that sounds plausible and as if it were the opponent’s position.

    What amazes me is how many in the political arena (e.g. Paul Begala and James Carville on CNN’s Crossfire) actually bite and argue from the position they have been placed in.

    Me, I’m all for 12 year olds, single mothers and grandparents.

  • http://www.foliage.com/~marks Mark Saleski

    one problem i have with the riaa’s position is that:

    x files downloaded = x dollars lost.

    this is total crap.it was crap when the argument was made back in the 80’s about cassette taping and it’s crap now.

    here’s a question for Hal:

    i own every Joe Jackson album. all on cd, some on vinyl.

    now…i go to work tomorrow and i download, via kazaa, an mp3 of “Is She Really Going Out With Him”.

    have i stolen something?

    i’m asking this question to make a point: that the social phenomenon of people downloading music is very complex and to say that only downloading is killing the musc industry big labels to to over-simplify the issue.

  • http://www.tude.com/ Hal Pawluk

    Mark: More “straw men.”

    Even the RIAA would not claim that every music download has a corresponding lost sale, and nobody with any understanding of business would claim that only downloading has an influence on the success or failure of the music industry.

  • http://www.foliage.com/~marks Mark Saleski

    you’re kidding, right?

    the riaa wanted rediculous amount of money in terms of penalties for each song: $150,000.

    and what exactly are the other influences that the riaa has brought up as harmful to the music industry? their answer has pretty much focused on downloading.

  • http://www.tude.com/ Hal Pawluk

    Mark: Is that somehow relevant to your previous post and my response? I’m missing the connection.

  • http://www.foliage.com/~marks Mark Saleski

    you said:

    Even the RIAA would not claim that every music download has a corresponding lost sale

    i replied with the $150,000 figure.

    you said:

    nobody with any understanding of business would claim that only downloading has an influence on the success or failure of the music industry.

    and i replied that the riaa has focused solely on downloading as the reason the music industry is having trouble. they will not admit to any other reasons: high prices, the several year economic downturn, etc.

  • http://www.tude.com/ Hal Pawluk

    ” You said: Even the RIAA would not claim that every music download has a corresponding lost sale.”
    ” i replied with the $150,000 figure.”

    That’s where you lost me, as it’s not related to your “extreme straw man” statement I was responding to: ” x files downloaded = x dollars lost.”

    ” you said: nobody with any understanding of business would claim that only downloading has an influence on the success or failure of the music industry.
    ” and i replied that the riaa has focused solely on downloading as the reason the music industry is having trouble.”

    That’s what my response disagreed with. You had earlier said essentially the same thing:

    ” to say that only downloading is killing the musc industry big labels to to over-simplify the issue.”

    Nobody is taking the “extreme man” position that downloading is the sole and only industry problem. It’s a big problem, as crime often is, but it’s not the only one.

    Arguing against opposing positions not taken by the opposition isn’t going to move the process forward.

    My position is essentially that if you paint or shoot a picture, create a web page or write a novel, code a program or write a song, it’s your choice as to whether you want payment for its use or not. If you do want payment, my “consumer rights” are to either make the payment or forgo use.

    The fact that some technology makes it possible to circumvent your rights does not cause you to lose those rights. That great concept is still yours, even though I may have a copy hanging on my wall or playing on my stereo or running on my computer. If you catch me and take legal action, tough – I rolled the dice and lost.

    Given that, do I like the way the laws (DMCA, latest copyright law extensions) are written? No.

    But the solution is not to whine and try to justify breaking them as if there were some mysterious extra-legal rights conferred on me by peer-to-peer networking, or my poverty, or ignorance. Those with the power to change the situation are not going to respond the way you would like them to. What I’ve been doing is writing my legislators every few months with non-extreme countervailing arguments, pointing out the areas of the laws that are particularly bothersome to me. I understand that as few as a couple of hundred non-form letters from constituents can sway an elected representative. I haven’t turned this into a crusade yet, but who knows? (The DMCA really, really fries me.)

    FYI, here are links to sites where you can find contact information for your Senators and your Representatives .

  • http://www.foliage.com/~marks Mark Saleski

    Nobody is taking the “extreme man” position that downloading is the sole and only industry problem. It’s a big problem, as crime often is, but it’s not the only one.

    not true. this is the RIAA’s position.

  • http://www.foliage.com/~marks Mark Saleski

    But the solution is not to whine and try to justify breaking them as if there were some mysterious extra-legal rights conferred on me by peer-to-peer networking, or my poverty, or ignorance.

    please do not mistake my position. i for one am not happy with the phenomenon of people downloading everything and paying for nothing.

    but the fact of the matter is that, because of poor (or non) decisions made by the industry, the genie is out of the bottle…and no amount of technology (or legal muscle) is going to put it back in.

    if the industry is not smart enough to see this then the industry will either die, or cease to exist in it’s current form.

  • http://www.tude.com/ Hal Pawluk

    “…the genie is out of the bottle…and no amount of technology (or legal muscle) is going to put it back in.
    “if the industry is not smart enough to see this then the industry will either die, or cease to exist in it’s current form.”

    I do agree that the genie is out of the bottle, but do you have a solution that would ay artists and owners who want to get paid? Are you implying that they should just forget about it?

    Technology, in various ways, could be used. First, you make some huge contributions to some of the Washington politicians who are into play-for-pay. Then you have them pass laws that put the burden on the Internet infrastructure, include a “theft” license fee on all iPods, (list goes here) …

    Or …?

  • Eric Olsen

    see “Copyrisk” story for update/solution

  • http://www.foliage.com/~marks Mark Saleski

    i’ll ignore for a moment the fact that the vast majority of artists make nothing from cd royalties (the exception being the big sellers)…

    i do think that the companies themselves should be paid. i myself download only promotional meterial…partly because i have no interest in downloading anything..i like to own stuff (this is the old fart in me talking)

    the major labels, who now are making nothing from kazaa-downloads (well, even that’s debatable considering as how stats seem to indicate that kids who download tend to buy more cds….) need to attempt to compete with free (eric has said this many times)….if they put everything up on the web, and allow unlimited downloads for a subscription fee, i think they’d be ablel to rake in the dough.

    …but, i don’t think they’ll do it, as they don’t seem to be able to break away from the old models.

    we’ll see.

  • http://www.tude.com/ Hal Pawluk

    Eric: “see “Copyrisk” story for update/solution”

    Saw it – not even close.

    (See my post there.

  • http://www.tude.com/ Hal Pawluk

    “….if they put everything up on the web, and allow unlimited downloads for a subscription fee, i think they’d be ablel to rake in the dough.

    Some will, of course, and there have been 13 million downloads from the original Apple site.

    That’s not a lot of money for six months, but there will be more now that paid services on Windows (including Apple) are starting to compete.

    A lot of this is probably because of convenience, selection and better quality than many of the Kazaa-ed downloads I’ve seen.

    I don’t know how much of a dent this will make in p-to-p “sharing” and total industry revenue. Can you see Joe Blow saying: “Oh, goodie, now I can pay for the music instead of getting it free!”

    We’ll just have to wait and see, but I don’t know that much is really going to change.