Re: [dvd-discuss] DMCA issue? RIAA (so SUE ME!)

[Glendon Gross <gross(at)xinetd.com>]

Marcia Wilbur wrote:

[Please see my comments below. --Glendon Gross]

> 
> If you have the time or desire to read this long "argument"(?), let me
> know what you think is flawed with this. Just really let me
> have it! I'd appreciate that...
> 
> after reading it,  maybe someone can explain to me why the DMCA is
> invoked at all...wrt music.
> 
> While I understand that some people might NOT realize or comprehend the
> actions the RIAA undertakes with regard to music and music downloads are DMCA related, I
> think they are not DMCA related for other reasons. (i.e. AHRA).
> 
> However, the RIAA has invoked the DMCA on many occasions regarding music
> downloads. RIAA has subpoenaed to identify infringers using section 512
> (h).
> 
> Section 512 (h)
> 
> h) SUBPOENA TO IDENTIFY INFRINGER-
> `(1) REQUEST- A copyright owner or a person authorized to act on the
> owner's behalf may request the clerk of any United States district court
> to issue a subpoena to a service provider for identification of an alleged
> infringer in accordance with this subsection.
> 
> COMMENT:
> ****(define infringer. If infringer means someone infringing on
> music copyright and these people were making music
> copies for  personal use, then no, those people were NOT infringers and
> not even alleged infringers. The only thing that might make them alleged infringers
> is if they were sharing/downloading for commercial purposes or to a device
> specifically designed to store and record music)****
> 
> `(2) CONTENTS OF REQUEST- The request may be made by filing with the
> clerk--
> `(A) a copy of a notification described in subsection (c)(3)(A);
> `(B) a proposed subpoena; and
> `(C) a sworn declaration to the effect that the purpose for which the
> subpoena is sought is to obtain the identity of an alleged infringer and
> that such information will only be used for the purpose of protecting
> rights under this title.
> 
> COMMENT:
> ***(sworn declaration  if the RIAA representative or copyright
> owner/rep wrote a sworn declaration alleging infringement because someone was
> copying music for personal use then, the RIAA is alleging infringement
> against someone who is CLEARLY not infringing according to the AHRA. This
> could be considered harassment, and cause undo stress to the "alleged
> infringer".)***

GMG: What about plain old libel?

> 
> `(3) CONTENTS OF SUBPOENA- The subpoena shall authorize and order the
> service provider receiving the notification and the subpoena to
> expeditiously disclose to the copyright owner or person authorized by the
> copyright owner information sufficient to identify the alleged infringer
> of the material described in the notification to the extent such
> information is available to the service provider.
> 
> COMMENT:
> ***(was the material properly noted in the notification as per the
> DMCA? The DMCA agent, for I believe it was Verizon, last year told me that
> many notices get put aside and a large percentage of people accused do not
> counter notify. In fact, almost no one counters.)
> 
> While the RIAA is attempting to use the DMCA in this way, they dont stop
> here. Recently, in the "Usher incident", RIAA attempted to use the DMCA in
> a notification to the college. The files there were not infringing and later
> the RIAA blamed the event on a temp. However, Matt S., spent time looking
> for the alleged infringing material. According to the DMCA, doesnt the
> notification need to be more specific? Take for example the RemarQ case.
> Wasn't proper notification a major issue in that case?!***
> 
> The Audio Home Recording Act (AHRA) might work to protect users from
> threats of RIAA lawsuits. The RIAA is using the DMCA, although I believe
> the DMCA is not relevant here.
> 
> The RIAA suing users seems flawed in so many ways,
> 
> 1. Do you sue your customers?

GMG: Not if I understand my business model.  To do so would certainly be
suicide for my business and my reputation.

> 2. The AHRA, or audio home recording act, gives immunity from lawsuits
> to users who are copying or recording for non commerical purposes. A
> computer is NOT a device specifically designed to store or record audio.
> Unless of course, someone does specifically design their computer for that
> purpose, I suppose that is possible.
> 
GMG: (Question:) Does this mean that if I added a sound card, and then
built software to enable recording to the audio input jack, that I'm not
covered by the provisions in the AHRA?



> (for more info pls see my essay about the issue :
> http://electroniclaw.org/p2p.htm)
> 
> Soundbyting.com, a former active RIAA site, apparently replied in an
> email, the following information to "Clarify the Legality of Home Audio
> Recording" to minidisc.org:
> 
> "As long as the copying is done for
> noncommericial use, the AHRA gives consumers immunity from suit for all
> analog music copying, and for digital music copying with AHRA covered
> devices."

GMG: (Question:) What if the site earns no money, but merely makes
copyrighted material available for download, i.e. as a "gift."  (?)


> 
> Also, allegedly written by soundbyting rep, "It is important to note
> that the AHRA does not say that such copying is lawful; it simply provides
> an immunity from suit."
> 
> Well, if users are immune from lawsuits, then, why does the RIAA sue
> or threaten to sue people downloading music? I believe that the only
> losers are the ones who settle!

GMG: Because their business is based on intimidation, and they follow
the methods of organized crime (IMNSHO.)

> 
> -marcia