$839,000 and counting! Wow! Look, on behalf of the devoted WBAI listeners, I want to thank
all of you producers, your whole great staff, all of you selfless volunteers, the people
who are so smart and futuristic as to listen to us on the Internet. Thank you, thank you,
thank you.
Hey, speaking for the producers, we want to thank the listeners, the staff, and the volunteers.
Great job, thank you.
And on behalf of the staff, I would like to thank the listeners, the volunteers, the producers,
and those people who are listening on the Internet. Thank you, thank you.
On behalf of the volunteers, I want to thank the volunteers, and the listeners, and the
producers, and the staff, and the streamers, and archivers. Thank you so much for making
this a wonderful experience and a home away from home.
Yes, yes, I would like to thank, on behalf of the savvy Internet listeners, the archivists,
the streamers, global, worldwide, on the information superhighway, thank you to the listeners who
listen on the radio, the producers, the staff, and our invaluable volunteers.
Well, thank you.
Thank you.
Thank you.
Hey, thanks everybody.
Thank you.
No, no, no, thank you.
No, seriously, thank you.
Thank you.
Thank you.
No, thank you.
Did nobody say you're welcome?
You're welcome.
I think you lose.
Thanks.
It's 7 o'clock, you're listening to WBAI New York, time for Off the Hook.
The telephone keeps ringing, so I ripped it off the wall.
I cut myself while shaving, now I can't make a call.
We couldn't get much worse
But if they could, they would
Bondedly bond for the best, expect the worst
I hope that's understood
Bondedly bond!
And very good to have you by, the program is off the hook
Emmanuel Goldstein here with you on this Wednesday evening
Joined by Mike
Hi
Redhack
Hello
Rob T. Firefly
Good evening
Dot Rett
Hello
Not Kevin
Hello
And down in Philadelphia, Bernie S.
Greetings from Philadelphia
I'm sorry, you have to say that louder Bernie
Greetings from Philadelphia
That's better, okay
And you're not in any trouble this week, right?
No, I haven't been deported from any countries this week
Good, okay, well that's a good week then
Yeah, if you don't go to other countries you won't get deported from them
So stay home in Philadelphia I guess
Any update though, are you filing papers and things?
I've done some research on that
And it's an arduous process
But I've got several offers from people willing to drive me across the border
In less restricted parts of the border
Well there are always people willing to take you out of this country
And leave you someplace else
But I'm sure that you need more help filling out the paperwork and things
Well, you know, I'll be consulting with my legal counsel and so forth
I don't have an immigration attorney, maybe I should find one
Alright, any immigration attorneys listening to this program
Email us, oth at 2600.com
Help Bernie S be readmitted into Canada where he has been banned
Are they called lawyers or solicitors in Canada?
You know, I don't know, I have to find out
Do you need somebody in Canada or do you need somebody here?
Probably someone most familiar with Canadian law would be better
But I'll do some research, it's going to be an ongoing work in progress
But I'm looking forward to it
Okay, speaking about things in progress
The unrest continues over in Iran
And the internet playing a key role
As most of the media seems to have been closed down rather effectively
Reporting what's going on in the streets of Tehran and other places
I was looking at some tips on the internet
This actually has been out for a week or so
But those of you involved in the whole Twitter revolution
And whatever else is going on out there
Is anybody doing this, you're changing your time zones?
You're shaking your head, why haven't you changed your time zones?
I haven't gotten involved at all
You haven't gotten involved, wow
There's also not the slightest bit of evidence that it actually changes anything
What is the theory at least?
The theory is that if you change your time zone to that of Tehran
The authorities in Iran won't be able to tell the difference
Between you and a protester over there?
I don't understand why don't they just block the entire domain
That would shut down Twitter for people in Iran
I don't know what control they have over the internet service providers
If it's like China where they control basically
What comes in and goes out
That would be a way to stop it
But I guess they probably don't
It strikes me as a simplistic way of dealing with it
And also why not simply have everybody in Iran
Change their time zones to someplace else
Because it doesn't work
That might be the reason
And you've got a lot of these things where
For example I've seen
Oh support democracy in Iran
Put a green overlay over your avatar
Who cares?
You're not accomplishing anything by doing this
You're just feeling better about yourself
Oh I'm helping by changing the color of my face
It's very silly
Now I have to wonder how much it's going to help
Since Iran apparently does have some amount of technology
For simply monitoring directly over their phone systems
What's going on
And they don't necessarily have to look at
The time zones of Twitter accounts
And this technology was supplied to them by western companies
I understand
Yes, yes they were
Very interesting
I think Siemens is one of those companies
Yes, Nokia Siemens
Wow
European telecommunications companies
Have given them the most sophisticated mechanisms
For controlling and censoring the internet
Allowing them to examine the content
Of individual online communications
On a massive scale
Yeah that green icon thing
Is not something that's meant to affect change on its own
I don't think
As I understand it's basically the online equivalent
Of wearing a t-shirt or putting a sticker on your car
Saying hey I believe this about that issue
Right which is what Americans do
To do the least work and think they're doing something
Right and like the t-shirts and badges
The person behind it may or may not
Actually be doing anything useful
But it doesn't hurt does it?
I mean it's
It's just pointless
Well it's pointless if that's all you do
I agree
But it's also a way of having somebody say
Hey what does this mean?
Like when we had the free Kevin stickers on the cars
People would ask what that means
And we'd tell them
And more people would get involved that way
So maybe this is waking people up in a similar way
You're getting very cynical Redact
It's gotta be
How would you reach people then?
What's your method?
I mean look it's easy enough
You just
If people are following you
And you post something on Twitter
Then they'll see it
There you've reached people
You don't have to turn yourself green
Yeah but I think a post on Twitter
Isn't gonna reach as many people
As turning yourself green
Why?
How would it not?
Everybody's posting on Twitter
Three of you have posted on Twitter
Since we started the show I'll bet
So it's you know
My phone is out of battery
I'm less interested in arguing about green
Than I am interested in censorship
And what's interesting about the Iranian censorship
Is first of all that it's centralized
So there appears to be very few connectivity points
Between Iran and the rest of the world
So they have a very easy time
Of doing effective censorship
But another interesting difference
Between the Iranian censorship regime
And the Chinese one
Is that the Chinese one
Is made largely by Cisco
Which is a U.S. company
And there's an embargo
So Cisco can't sell its censorship products
To Iran
So instead they get them from Europeans
I see
Interesting
Is that the reason behind the embargo?
To keep technology like this out of
I would be hard pressed to describe
The reason for any embargo
But this is an effect of the embargo
Now there were some tips
That have been floating around the internet
For people involved
In this whole Iran thing via the net
Such things as
Do not publicize proxy IPs over Twitter
And especially
Not using the pound Iran election hashtag
Security forces are monitoring this hashtag
And the moment they identify a proxy IP
They will block it in Iran
Makes sense
I mean this is common sense things
Well the problem with something like that
Is that these hashtags are used
To
As a way to find this information
In the first place
If you start putting it under tags
That no one knows to look for
Then what good is posting on Twitter
In the first place?
Right but if everybody knows it
Then they can post all kinds of disinformation
I mean there are
You can search pretty much anything
I mean they index
All the different words so
You don't have to put it under the hashtag
For somebody to find it
Because there's a proxy or
Right
IP number
Well then couldn't the security forces
Do the same thing?
Do the searches?
Just the same as any user?
Right but I mean
How many different searches
Are they going to make?
If you're really determined to find something
And you're one person
You'll probably have an easier time
Of finding it than if you're
A security force trying to find
Every instance of something
Well while you say that
There was theories that
Them trying to
Search through
All the phone calls and text messages
Over the phone system
Actually massively slowed down
The entire phone system
So if that's true
Then that would send a precedent
For them willing to go through
Extremely large amounts of information
Right but the more
You look for
The more buried things become
And the less you actually find
It's a clutter of information
The more you look through rather
Right and it
Bogs down the whole process
Whether you're an activist
Or a security person
I think the salient point is
That none of us here in the West
Really know one way or another
And we can make stuff up
Till we're blue in the face
But it's kind of silly
So with no media
And with the internet
Being effectively blocked
And cell phones being controlled
As well
How does the word get out?
Not satellite TV
Well tell us about that Bernie
Well there's a
A lot of Iranians have
Illegal satellite TV
Reception dishes and receivers
They're banned there
They're not allowed
But a lot of people have them anyway
And they're easily concealed
You can just put a wooden shed
Over your roof
And people don't see it
But people just don't even care
They're just exposed
I saw a picture of rooftops in Iran
And they're all over the place
So they're using them to receive
Channels like BBC
And even more so
There's a program
There's a channel called Channel One
Which is based out of Los Angeles
And it's a group of Iranian expatriates
And it's affiliated with
The son of the former Shah of Iran
Who doesn't have too many fans over in Iran
But anyway
And this station, Channel One
Operates out of a warehouse in Los Angeles
Which formerly was used to produce
Porn films
And Channel One is largely thought to be
A front from the CIA
To receive some funds from the CIA
There was actually a bill in Congress
Last year or a year or two ago
To provide funding for Channel One
How is Channel One relevant to this?
Is anybody actually taking it seriously?
Yeah, a lot of people watch it
In Iran apparently
But now they're not being able to watch it
Because the Iranian government
Is using some fairly high-powered
Microwave jamming transmitters
Both on towers and on trucks
Going around just the major populated areas
Now in the country
To jam reception of BBC and Channel One
And other channels that they don't want
People in Iran to view the programming of
Because they fear that this kind of programming
Will incite civil unrest
And help to topple the current regime
But these are really high-powered microwave signals too
These are not healthy
These are
Hundreds or thousands of watts
Which are really not healthy
So
So they're using this to block the signal
Now how is word of this getting out?
How is word about the blocking going out?
Yes
There are, there's reporters there
Well again, you have to verify this stuff
This is, I was reading this on some technical
Sites that pertain to
They're just read by like radio engineers
And people that are involved
With this sort of technical stuff
And it really isn't getting much
Mainstream media coverage
But I thought it was fascinating
It's the first case I've heard of
Where domestic jamming was done
Of, in other words, not domestic
But terrestrial jamming
With a transmitter actually located on the ground
A lot of times
Cuba was at one time
Jamming the uplink
Of this same channel
Channel 1 to Iran
Who's behest, I'm not sure
But they changed things around
So the US
Satellite TV company changed things around
So that wasn't part of the uplink footprint anymore
But this is the first case I've heard of
Where actually ground-based
Transmitters were used to jam
Satellite signals coming down
Which is kind of hard to do, you have to be pretty close to the receiver
Or have a really powerful transmitter
Which is what they're doing
So I just found this was a really interesting approach
To censorship of media
One-way media in Iran
As far as verification goes
On blocking satellite
Television and whatnot
In Iran
The BBC early on was complaining
That their broadcasts were being jammed
You know, most likely through
The broadcast not going through
And them trying to find out where the problem was
They discovered that jamming was actually taking place
From within Iran
Bernie, do you have any idea
Where the technology that they're using to jam it is?
Like who they bought it from?
Is it a European company?
American company?
This kind of stuff is not, well
They really could have bought it anywhere
But this isn't really as high-tech
A thing as the
Type of technology that Mike was talking about earlier
This is just simply
A high-power microtransmitter
It's broadcasting from a tower
In a centralized area
In a city
Or on trucks that go around cities
They obviously don't have the resources
To cover the whole country with these things
Because they don't have really long range
You have to be fairly close to the satellite receiver
But this is basically a white noise generator
And they know what frequency it's at
This is electronic test equipment
And RF amplifiers
The equipment doesn't have to be specifically designed for jamming
There's a lot of equipment you can get
Together
So it's not like something that
You could say, well they got it from the U.S.
Or they got it from another country
This is just common microwave transmitting equipment
If you just be dual-purposed
Now Bernie, we had some discussion
On our mailing list about this
Concerning alternative communication systems
That the Iranians
Might or might not have access to
And how important it is for people
To develop these kinds of systems
Do you want to tell us what that involves?
At the last HOPE conference
Last year myself and Red Bird
And Skip Barry gave a talk called
Off-the-grid radio communications
And the whole purpose of the talk
Was to explain to people
That we're very, very reliant
Almost too reliant
On a communications infrastructure
That is very easily
Monitored
Or shut off
Or jammed
By either corporate or government interests
And
There are ways around that
Instead of relying on an infrastructure
That's controlled by some large entity
There are
Two-way radio applications
Ham radio operators are most commonly known
As people who can get communications
In areas where
Everything is shut down
Either from a national disaster or something like that
Amateur radio is largely illegal in Iran
There's like 15 licensed hams
In all of Iran
And they're mostly controlled by their officials
Or their friends or children or something like that
But that doesn't prevent people
From getting equipment
To set up communications networks
You can set up sort of what are called packet radio communications
Which is set up in bursts of data
Very briefly
And they can set up a grid of these things
Across the country
Whether they've done this or not
If they have they're not talking about it
And if they haven't
They probably should have ahead of time
In Iran right now using technology
That they don't want to talk about
Because they could be shut down
But in any country including this country
I think it's really important for people to have access to
And have it ready ahead of time
To provide some sort of communications
That wouldn't be possible
If their phone lines
Or internet connections were shut down
So any quick tips
For those of us who want to communicate
After the revolution here
Ham radio obviously
You could pick up a copy of
The ARRL handbook
Which is the bible of
Two way radio communications
And you could also look online
For technology called packet radio
And something called PSK31
Which is a digital communications
Mode over radio
It's used by amateurs around the world
It's even used by the Cuban government
To get their signals
Messages to their covert agents in the US
The ones that were busted a couple
Of years ago in Miami
We're using PSK31 to receive messages
In your shortwave
In the PSK31 protocol
So this technology is used by
Intelligence agencies around the world too
But there's no reason individuals can't make use of it
And for a few hundred dollars
Even for as low as a couple hundred dollars
You can be part of a
Network of people who can communicate
With each other
Without relying upon an
Infrastructure that's controlled by your government
Corporations
Bernie, are these systems mobile enough so they wouldn't be caught?
Oh yes
You could put a whole kit in a briefcase
Or a car
Something like that
But these are data bursts
It's not like a constant broadcast
Like a pirate radio station
Or a clandestine radio station
They can be easily found through direction finding techniques
Emanuel and Mike
And I a few years ago found a pirate station
In Corona, Queens
That was inadvertently jamming WSB
But we tracked it down
It wasn't that hard to do, obviously we could do it
But
First it did digital radio communications
Like packet radio
Which is very short bursts
Of maybe a fraction of a second
That aren't
You know, all the time
It's very hard to get a fix on something like that
And especially if you're moving a vehicle
There's no way that stuff could be very easily tracked
So you're saying this entire system
Can be set up in people's trunks
And just continually driven around 24 hours a day?
It could be
Now you'd have to have an antenna on the vehicle
And that might attract attention
An antenna would be difficult to conceal
Because it has to be
Several feet long kind of thing
But it could still be done in certain kinds of cars
Depending on how you hide it
But this, I mean
Research packet radio online
You'll find some interesting applications
So SAMs have been using packet radio for many years
In emergency drills
And in real situations
Like down in New Orleans
During the Katrina disaster
Packet radio was effectively used
To get a lot of communications traffic in and out
Where nothing else was working
Okay, we have to move on
But this is a very interesting discussion
On the whole Iranian situation
You can write to us, oth at 2600.com
If you have anything to add to it
We're going to move into a special part of the program
In just a moment
First an update on a story
A story that has just broken
You guys remember this company
Called Fly Clear
Where you basically walk through an airport
And you don't have to
Get checked by security too much
You have to get checked equally much
The line's just shorter
No, you just skip to the front of the line
Is that what happens?
What if there's a whole lot of you though?
They don't even let pilots skip the security line
Okay, but in any event
The company is called Clear
And guess what? They're out of business now
They were unable to negotiate an agreement
With their senior creditor to continue operations
And so those of you who paid an annual fee
To get this service
Well, you're out of luck now
Because they've shut down
Bernie, what do you think about that?
Well, I think it's kind of amusing
I don't have a lot of sympathy for people
That are wealthy enough or feel that they're
Important enough to step in front of the line
Of everybody else that has to wait
In lines at the airport
It was $200 a year
And you had to fork over all kinds of information
I mean, there's like
I don't have the list in front of me
But maybe somebody else there at the studio does
There's a list of maybe 15, 20 different pieces of information
You had to give up
Including obviously your date of birth
Social security number, home phone number
Email address, secondary phone number
And address
All the people in your family
A lot of information
And you had to provide all this
To this company
Who apparently would then share it with the TSA
And then set up a profile
To determine whether you were safe or not
And they give you some sort of secure ID
So you could pass through
But what's interesting is one of these companies
Even though they may have a privacy policy
To not share this with other companies
To think about a business
Whoever buys that company
For pennies on the dollar
I bet all those people are very nervous right now
About what's going to happen to their private information
Okay
We'll be keeping an eye on that story as well
Okay, and this is something that hit last week
And I thought it was pretty interesting
Universal Music Group
Which is owned by Vivendi and other record labels
Were awarded $1.92 million
Last Thursday
In the retrial of a Minnesota woman
Accused of swapping music
Over the Kazaa internet service
Now, basically
This case went to trial
In 2007
And a jury awarded
A total of $222,000
Or $9,000 a song
The judge threw out the first verdict
Saying he had given the jury
Incorrect instructions
And they had a retrial
And guess what
Instead of $222,000 it's now $1.92 million
In other words $80,000
For each of the 24 songs
That were posted on the site
So others could download them
According to
The case
Jami Thomas Rassett
Of Brainerd, Minnesota
Is expected to cough up that amount of money
Joining us both
In the studio is attorney
Ray Beckerman
And on the phone
Attorney Joe Sibley
First, Joe, are you there?
I'm here, glad to be on the show
Thanks for being with us tonight
It's a bit of a shock
Seeing something like this happen
You see a retrial, you don't expect the amount to go up
By that amount
If there's going to be a guilty verdict to start with
Were you surprised by this?
Well, I wasn't surprised
By the
Guilty verdict
If you will
I wasn't that surprised about the damages amount
I'll tell you why
The first trial was in
A different venue, it was in Duluth
In Minneapolis
We thought that might be favorable for us
And it turned out it wasn't
Really, I think the explanation
For the increase in damages
Is we had Jami take the stand this time
She wasn't interested in a lower damages amount
She was interested in zero liability
Because to her, a $220,000
Verdict is not that much different
Than a $3.6 million
Verdict, which would have been the maximum
She can't pay either one
She was interested in getting off entirely
And it was by your words
Are you justified?
And by your words, you're condemned
And in this case, the jury chose
Confirmation instead of justification
And I think they thought she was lying
Or wasn't being forthright about her story
And decided to become punitive with the award
Well, one thing that struck me
Was a quote by Ms. Thomas-Rossette
Saying, the only thing I can say
Is good luck trying to get it
Because you can't get blood out of a turnip
And I got to admire that kind of spirit
And it's hard to get a
Garnishment of wages when you're working
On an Indian reservation like she does
But the other point there is
As you know, and I'm sure, and I know Ray knows
This wasn't about
Money for them
It wasn't about collecting any kind of judgment
They know they're never going to get money from Jamie
This was about sending a message
It was about ringing the siren
That look, if you stand up to us
And don't pay us these
What's seemingly a small settlement
Compared to the
Multi-million dollar verdict
But if you don't pay that up front
Then you're staring down the barrel of a nuclear weapon
Multi-million dollar verdict
Which is not dischargeable in bankruptcy
If there's a finding of willful infringement
Which there was in this case
Which will basically ruin your life financially forever
Ray, do you have any feelings on this case?
Yeah, that's not true about the bankruptcy discharge
The standard for it being non-dischargeable
Is much, much higher
Than the threshold for
Willful copyright infringement
So
The cases that have reached it
Have almost invariably
Found the judgment to be
Dischargeable
Even though there was a finding of willful infringement
So do you have any
I just want to mention
About that issue
I was shocked by the amount of the verdict
Because I can't imagine what
Malevolence
Can be in the heart of a juror
That could come up with that kind of a number
But
I look on it as
A lot of technical legal problems with the case
It should never have been
Left up to the jury to award more than
$750
Even the $750
Per work infringed
Would be subject to
Constitutional challenge
But that wouldn't be a matter
For the jury
But there's no reason why they should have been
Instructed that way
There's no reason why they should have been allowed to hear testimony
About the
Record industry's
Business problems
They should not have
Heard the
Evidence from Media Century
Or from
Doug Jacobson
Which as every
Technology buff who listens to this show
Knows
It's all science
It's all secret proprietary
Information
It can't possibly be admitted in the federal court
Under a normal legal standard
So it should never have been heard
We're not legal experts here in the studio obviously
But how do you prevent something like that
From being heard
What do you do?
You have to take their depositions
First of all
You have to
Then voir dire them
Before they're allowed to get before the jury
What was that word?
It's a
V-O-I-R-D-I-R-E
It's legal French
Okay
You have to
Examine the witness
About their qualifications
And the scientific reliability
Of the material
That they're going to be producing and about their testimony
And then
You object to their testimony
The judge makes a ruling at that point
And they're either allowed to testify
Or they're not or they're allowed to testify
On a limited basis
But
I've taken the deposition of Jacobson
And he admitted
He satisfied none of the normal standards
For
Admissibility of evidence
Jacobson is who?
The expert witness
The quote expert unquote
And Media Century has been fighting like the devil
To prevent the disclosure
Of their information
So
If the press accounts that I read of the trial
Are correct, the Media Century representative
Perjured himself in the trial
Because he testified that
No one had asked them for the source code
And that
If anyone had asked them for it
They would turn it over under a suitable confidentiality order
Joe
Is that a correct characterization
Of what the Media Century guy said?
That is a correct characterization
I can tell you that at this moment
There is pending
In the Eastern District of New York
A subpoena
And a motion to compel
Production in response to that subpoena
Which calls for the source code
And which calls for numerous other matters
Which all the
Technology people
That I've spoken to tell me
This is the necessary information in order to
Assess the reliability of Media Century's
Methods
And they have fought like the dickens
To the point that they've also made a motion
To withdraw the case now
To run away with their tail between their legs
Because they're afraid of
This being disclosed
Now we had an interesting discussion
Before the program about precedent
And the fact that a jury case
Is not going to set a precedent
But let me ask Joe first
Joe, how do you feel this case
Is significant?
Well, yeah, it's not presidential
In the courts
But it is presidential in the court of public opinion
Which, like I said before
This is going to scare people
Into not wanting
To take on the recording industry
I mean they were already
Afraid and now I think they're really going to be afraid
But I think in the long run
What this is going to do is
It's going to backfire on the recording industry
Because I think there's been a lot of outrage
About
Charging someone or fining someone
$80,000 for a song that costs $0.99
On the internet
It's completely disproportionate to any actual harm
We think it's unconstitutional
But as far as presidential value goes
I don't really think it goes any further
Than the
Fact of this case
I'm just curious
How they came up with this $1.2 million
Number, I mean you can
Kill people in this country for less than
$1.92 million
It's completely outrageous
Where do you get those figures?
Yeah, I mean
Our position on this
I don't know what Ray's position on this is
I'm sure it's similar
But we don't think that the copyright
The statutory penalties and the copyright code
Were ever intended to apply
With this kind of latitude
$750 or $150,000
To someone who is not
Infringing for commercial purposes
It would be one thing if she was downloading the music
And selling pirated
Discs
But that wasn't the case here
She was accused of just listening to the music
And making it available for others to share
Let me speak to that
There's a long outstanding body
Of copyright law
In the courts
Which have interpreted the statutory
Damages provision in such a way
As to say that the
And the leading scholars
Including Nimmer all say this as well
That statutory damage award
Has to be
A reasonable relationship to the actual
Damages
And there's a long line of cases
Hundreds of cases on this
It goes back 40, 50 years
And all of the cases are commercial
Cases
So don't even talk about non-commercial versus commercial
They are commercial cases
And the courts have worked out a standard
Saying that it does not have to be
Equal to the actual damages
But they have always
Ruled within a range
Almost invariably
Of within two to four times the actual
Damages
That's why there was an article in Wired
Which got so upset over a decision
By Judge Sotomayor
But it was a classic case of a tavern
That hadn't paid the ASCAP license
And the magistrate had
Awarded about one times
The actual damages
Even though it was a willful infringement
Judge Sotomayor put it up to maybe
Two and a half times
The ratio and that was perfectly
Within the standards of the case law
So you can't just look at a statute sometimes
There's also a lot of case law saying that
So in this case
Since the damages were approximately
35 cents for a work
At most
Then the damages
The statutory damages
Should never have been allowed to be anything more
Than $750
Because under the normal standards
It would be around $1.40 would be the maximum
And just to drive home some perspective
Here, this is over 24 songs
That's maybe three, three and a half hours of audio
On, in what dimension would that be worth
Two million dollars worth of damage
And they're alleging that she basically
Had this up on a site and
Peer to peer
Okay, and she
Claims no knowledge of any of this happening
It's possible somebody was using her IP address
Or Wi-Fi or something like that
They claim that she downloaded
And they claim that she distributed it
But they have no evidence of her downloading it
And they had no evidence of her distributing it
If someone, if a regular
Country lawyer like myself had brought the case
It would have been dismissed
Because there's no evidence
Sorry, say again?
She owned the CDs that contained these songs
So, um
Yeah, she had the CDs but there's no
So she didn't download the songs
No reason to think she downloaded the songs
No evidence of that and there was no evidence
That she had distributed them to anybody
A distribution under the Copyright Act
Requires that there be a
A sale or other transfer
Of ownership of the work
Or a license, I mean a lease
A rental or a lending
And that there be a dissemination of copies
To the public
Here's what's really, when you take at this argument
And these damages to their logical
Extreme, they accused her
Of, now there were 24 songs that were
Sued over, those were the plaintiff's copyrighted material
That they chose to sue over
But there were actually, allegedly
1,700 songs
In her Kazaa share folder
Which they claimed was her
Kazaa share folder
Now taken to its logical extreme, if she had been sued
For every one of those songs
And if the maximum statutory penalty
Were put in place
That would be like a quarter
Of, I think it's a quarter of a billion dollars
Wow
But not only was there no evidence
Of 1,700 song files
There was no evidence of 24 song files
Because they only
Probably downloaded about 6 or 7 of them
So those
Other things were just titles
On a screenshot
They might or might not have been song files
They might have been anything, they could have been
The corrupted things that Media Century sends out
As a method of copyright infringement
Deterrence
But even if they just downloaded one song
This penalty here
Is staggering for anybody
So
How many songs does it take
For this to be an important case?
One song? Or 50?
Or 750?
Yeah, it's not clear
I don't know what you mean by important
You're saying that
Every case is important where someone is unjustly accused
Of this stupid file sharing
Based on bogus evidence
Without any evidence that the person did it
Under no legal theory
That's known to the law
That makes it important
But if they were able to prove that she had one song
Or five songs or whatever
Because they downloaded the songs and all that
Then how is that different than saying
They didn't prove that
She downloaded any songs
And they didn't prove that she distributed any songs
What they did was
They used Media Century to
Download
A selected number of the 24 songs
And from that
I suppose their theory is
The jury could infer
That they were made available
Or quote-unquote distributed
For copying
The remainder of the songs were as well
Joe, tell us something about this Media Century
What is that all about?
Well, Media Century is a third-party
Agency
That is used by
Copyright owners in the recording industry
To sort of go out
And rove around
In these peer-to-peer file-sharing sites
And I don't know exactly what the methodology is
As to how they kind of
Select individuals to
Look at, I don't know if it's quantity of
Shared material or what it is
But it's sort of a litigation lottery
In fact
And if you get ticked and Media Century
Detects file-sharing
Then you're sort of logged
Your IP address is logged
And then they subpoena records from your internet service provider
And find out who the IP address is registered to
And then the process begins of
All this litigation that we've seen
You know, 30 plus thousand people
Who've been sued by the recording industry
Emmanuel, the operative word in what Joe just said
The phrase, the operative phrase
Is I don't know
Now this is a guy who just was involved
In a three-day trial
In which the only evidence against his client
Was
Supposedly scientific technical evidence
Procured by this investigator
And he doesn't know how they got it
Doesn't that tell you something
About
How awry this case is
You cannot
Bring a case in federal court
Based on secret procedures
This is not the Skull and Bones Society
It's the Federal Rules of Evidence we're talking about
This is the trial lawyer
Now if Ray Beckman says he doesn't know
Well okay, I was sitting in New York blogging about it
This is Joe Sibley who was in the trial
And he doesn't know
And the expert witness
Whose opinion was based on that evidence
Has sworn under oath that he doesn't know
Alright Joe, I'll give you a chance to respond to that
Yeah, well you know the problem is
We jumped on this case guys
Three weeks before trial
We kind of had to play the hand we were dealt
As discovery went
I agree with Ray that there are some real issues
With Rule 26
Of the Federal Rules of Civil Procedure
Disclosure requirements
If you have an expert who's relying on someone else's data
I do think that the full disclosure requirements apply
And I do think Media Century
Should have been required to produce
This allegedly proprietary information
So that we could prove it
I'm assuming that that's going to occur
In future cases
It sounds like Ray's already on to that
But I agree with him that
There really is a hide the ball
Issue going on with
Media Century and whoever these other
Agencies that they use
To detect alleged infringers
Is going on
Joe, tell us what's next in this case
I assume an appeal is coming
Yeah, well you know we actually had a motion to suppress
The evidence procured by Media Century
Because it was procured in violation of
State and federal law
We think that the wiretapping statutes apply
The Minnesota private investigator
Code applies
They were unlicensed private investigators
But the real issue is
Guys, is constitutionality
We think that this award of damages
Is unconstitutional as applied to this case
The statutory scheme is unconstitutional
As applied to this case
Goes back to what Ray said earlier
There has to be some proportionality
Between the actual harm
And the statutory penalty
And in this case, it's not even close
I assume both of you guys want to stay around
For phone calls from our listeners
Sure, of course
And wrap for a little bit, yeah
212-209-2900 is our telephone number
And Bernie, yes, you had a comment
Yeah, a quick question
For both Ray and Joe
On the jury selection
I guess that's also called board gear
Joe, what was the
How were the potential juries
Members
Screened out
I mean, would they screen out all the young people
Or anybody who's ever downloaded music
Who actually is familiar with the concept
Involved? I mean, did they do that?
And also, a jurisdictional question
Did this happen?
That the defendant
Or the person who was sued
She worked on an Indian reservation
Did the alleged file sharing
Occur
Actually on an Indian reservation
And were there any jurisdictional issues
With that?
Yeah, I think that's a good question
As far as the jurisdictional issues go
She doesn't actually live on the Indian reservation
She just works for the reservation
So that would go to their ability to garnish her wages
As for the board gear
Questions
Yeah, there was really no pre-screening
Process that the court used
Now the judge did ask some
Questions that were sort of jointly submitted
By the parties that did go to
You know, downloading
And understanding of
File sharing and things like that
And there were actually three or four
Jurors, and I think one or two of them
Actually got on the panel, which is what makes this
Award of damages even more bizarre
And hypocritical, quite honestly
There were several jurors who admitted
To either, you know
Essentially infringing copyright
By burning CDs or
Sharing someone else's music off of an iPod
The plaintiffs tried
To get them stricken for cause
We disagreed with their cause
Because they said they could follow the judge's instructions
Now whether they could or not
Was apparently another issue
But we actually got some people
On the jury who had
Not in so many words
Admitted to copyright infringement
And still
They entered this award
Which is just astronomically
High compared to what was actually done
It's unbelievable
I have a question. I'm not a constitutional scholar
So I'm actually curious what part of the Constitution
Kind of applies to this in terms of it being
Unconstitutional
Well, because there's
A punitive aspect
Anytime there's a punitive aspect
I don't remember
Which clause of the Constitution
Or which amendment this falls under
But there has to be some proportionality
Between punishment and the crime
Which is why you can't for example
Send someone to death for shoplifting
So that applies as well
And punitive damages
And the case law on punitive damages
As Ray mentioned
And especially in the context of copyright infringement
There has to be a proportionality
Between the harm and the fine
The constitutional argument
Is the due process clause
Of the Fifth Amendment
And the United States Supreme Court
Has held that punitive
Awards
Have to be
Bear a reasonable
Relationship to the
Actual damages sustained
And they've held that in the context of
Statutory damages and in the context
Of punitive jury
Awards and they haven't
Distinguished between the two in their reasoning
So it's the Fifth Amendment
That is the argument that actually has
A lot of precedent behind it
And after the United States
Supreme Court's last major
Discussion
Of this issue in 2003
In State Farm
The United States Court of Appeals for the
Second Circuit
The District Court in California
The District Court in
Two other cases
Have all
Three law review articles
And scholarship
Have all agreed that
Those cases are applicable
To the
Statutory damages
And
Except for the Second Circuit case
All of these other authorities have
Specifically spoken to the MP3 files
And file sharing and how
Because these are
Micropayment transactions
To apply regular
Statutory damages to those
Creates a major
Constitutional issue
Now some people have also
Raised an Eighth Amendment
Argument which is the
Saying that it's
Like putting, it's like a criminal statute
But that's an argument that's a more difficult
Argument to make when you get
A two
Million dollar verdict for
$23.76
Worth of songs
Maybe that argument has
Something to it but the other is a well
Established principle, the Fifth
Amendment. We're speaking with
Renowned attorney Ray Beckerman from
Here in New York City. You might know him from
The Slashdot community. He's a New York country lawyer
And he also has
A Twitter account, Ray Beckerman
In case you want to be updated
And we're also speaking with
One of the attorneys from a
Recent case, the case of
Jami Thomas-Rasset of Minnesota
Where she was fined
$1.9 million
For having
Shareable music. Joe
Sibley joining us from Minnesota
You are in Minnesota, right?
It's Houston actually
Oh, I'm sorry, you're in Houston. Okay. I knew you were
Somewhere out there. Our phone number is
212-209-2900
If you'd like to ask some questions about these
Cases or any other types of cases
For these two people who
Have quite a bit of knowledge between them
Hello?
Yeah, I'm calling in
From Dallas and I was just
Wondering, are you guys still on the file sharing
Thing?
Oh, well
Mine actually had very little to do with that
I'm on delay, but
I was wondering
About recently in Dallas
There has been a
Former city councilman
Who was
Popped an FBI scandal for
Corruption
Bribery, and he's
Been in court recently and the judge
Put him on a gag order, but recently
He's gone to the newspaper and
Violated that
Court order
Pretty thoroughly, and I was just wondering
What do you think of
Politicians being able to do that without
So much as any repercussion
From the judge?
That's a good question, although this guy has as little to do
As anything we've been talking about tonight as I could imagine
But anybody want to
Address that? And it's okay if you don't
Nobody?
Well, I know nothing about that case, so I couldn't
Possibly speak to that
Maybe he was listening to a pirated
Version of Journey
Forever Yours when he did it, I don't know
Maybe, who knows
Let's try and stay on the subject, callers
212-209-2900
Talking about the recording industry of America
And how they can reach out and possibly
Get you, we'll talk about a couple other cases as well
That are also significant, 212-209-2900
Good evening, you're on
Off the Hook
Hi, how you doing? Good afternoon, good evening
I'll make this real quick
I actually don't
Do any kind of file sharing
Or anything like that, I released my
Network to the kid upstairs
Because his parents didn't have much money
But he had a computer and he
Downloaded some kind of Harry Potter business
And what had happened was
The cable company, I guess
I'm sorry, a recording
Studio from California actually called me
And told me to cease
And desist, and if it happens again
I'm going to be in big trouble, and you know
Somebody like me, it never happened, I don't even know
What Harry Potter is, and it was actually pretty
Very scary, it made it
How could you not know what Harry Potter is?
I don't pay too much attention to that
Alright, well it's admirable that
You don't, but
I'm listening to your show, I have no time for Harry Potter
Yeah, we don't talk about that very much, that's true
Do you have a question about this?
Um
Yeah, can they legally scare
Me as much as they did?
I mean they talked about taking my car
My house, bank account, houses, etc
And I thought it was like a
Bullying type of thing, I mean can they
Legally do that?
You should be glad they said cease and desist
I mean in the old days
That's what copyright lawyers did, we said
Cease and desist, and if someone
Was willing to cease and desist, everything was cool
Now, these maniacs
That are running these companies
Running them into the ground
They don't even send
Cease and desist letters, they just sue people
So
You should be grateful that you received
The cease and desist, you should be careful
To consult with a local attorney
If you feel there's any question about what you need to do
To prevent yourself
From committing copyright infringement
I wouldn't look on it as intimidation
I would be thankful that you ran into
People who said cease and desist
Instead of people who said
Here's a summons and complaint
Since I have you in the room, I might as well ask you this right now
Is it possible as a lawyer
For you to desist, but not to cease?
No, but
Lawyers get paid by the word, as you know
So when someone realized
That cease and desist were synonyms
They figured we could get paid twice as much
By saying the same thing twice
Fair enough, Redhack
I know that in the case of the recording industry
They try to sue everybody
I mean, they had a website
And I think they probably still do, to do a settlement online
But now, does the movie industry
And the software industry
Do they actually sue people yet?
Because I know that I've received
Cease and desist letters, actually
The movie industry has been playing
Sorry, go ahead
I think you've dug yourself in deep enough
Well no, but actually
The recent one, I didn't actually have anything to do with
Someone was using our network, our neighbor
But anyway
Okay, good story, stick to that
The movie industry and the software industry
Have been pursuing people
Just as long as the record industry has
But they haven't used the same tactics
Do you want anything to add to that?
No
Other than I like Ray's
Bill of suspenders billing rule
Okay
Let's take another phone call
Hi, it's Sanda
My question is somewhat related
As an older visual artist
I know about copyright
I can't remember the recent history
Where the music industry
Has kind of veered off
From any kind of fair use
So could you talk to that?
It's puzzling to me
I'll listen up here
Okay
The content industry today
Is like on a maniac tear
They are trying to take fair use
Out of the lexicon
And it's very scary
And
You know, you occasionally
See some pushback on it
But I think
What it all boils down to
I was on a panel discussion with
The spokesman for the Motion Picture Association
And he said he likes the fair use
Law the way it is now
Letting it be carved out on a case by case basis
And what I said to that was
Of course you do
Because you represent people who have millions of dollars
To spend on litigation
But when you have a filmmaker
Who's got a $3,000 budget
You know, from his student credit card
And
He just wants to know
What he can do ahead of time
He doesn't want to wait to find out
After a jury comes in and he's spent
Hundreds of thousands of dollars he doesn't have
You know, your philosophy
Of having it carved out in court
Is that people have to live in terror
And that's the way they want it to be right now
And they bring crazy lawsuits
I personally think
The Harry Potter case against the Harry Potter lexicon
Was a crazy case
And I've written on that
Joe, anything to add?
Yeah, actually it's interesting she raised that issue
Because the case that's about to happen
In Boston
The Joel Tenenbaum case
Professor Nessen
Which is how I got involved with this
Evidence professor at Harvard
He's kind of leading the charge on that
And fair use is really the central issue
In that case
The law's a little unclear as to
You know, what fair use is and what fair use isn't
But they're going to try and make it as broad
As possible
And that's really going to be the defense in that case
Is that Mr. Tenenbaum
You know, regardless of what he did or didn't do
That it was fair for him to
You know, to listen to this content
Off the internet
Your firm is assisting on the Tenenbaum case
And I hope
You will avoid the very simplistic
Outlook on fair use
That was taken in that panel discussion
That Professor Nessen
Posted online
Because you have to take
The different factual scenarios
Having worked on these cases for four years now
And spoken to people from all over the country
Every day
I know that the peer-to-peer file sharing has many different
Factual scenarios
And activities that can be done
With peer-to-peer file sharing software
Some of which would qualify
For fair use
Some of which would not qualify
And some of which are a gray area
And to just say
Peer-to-peer file sharing covered by fair use
Is an overly simplistic analysis
And so I hope that you'll
Work to refine
Which different behaviors we're talking about
Well, Professor Nessen
Is running that case
And I don't know if you know Charlie
Very well, but he's one of the smartest people
On the planet, so unfortunately
When Charlie gets an idea
Whether it's good or bad, it's almost impossible
To talk him out of it, so I think we're just gonna
Ride his train on that one
All right, well, I wanted to
Take the closing moments of the show
To ask Ray, we were talking before the show
About other cases involving
The recording industry of America
There are significant cases
And how we look at this, we look at the damages of
2.9 million dollars and we say, you know,
It's a horrible thing, but they're not necessarily
It's not necessarily all bad news, correct?
Right, well, a very important
Event just happened the other day
In UMG recording
Versus Roy
A New Hampshire case
The defendant was being represented by
The Franklin Pierce Law Center
And they obtained an expert
Opinion from a
Wonderful professor at Dartmouth
Sergei Bratis
And his expert witness report
Which referred to
The expert witnesses reports
That had been obtained
From Professor Jacobson
And the expert witness report
Of Dr. Kim
That had been prepared but was never used
In the Minnesota case
And of Dr. Poels
And
His report scared the RIA
Off and they dropped the case
And they
Dropped it and got no money and just
Walked away from it
So it's very important
For defense lawyers all across the country
To be doing their homework
And getting expert and technical
Witnesses
And this was
I should mention that this was through a help
From the Free Software Foundation
Which obtained a grant
And
Encouraged them to hire an expert witness
And Dr. Bratis did a wonderful job
And I'm sure he'd be available to help
Other witnesses in that region
All right, those of you interested in hearing
More of Ray Beckerman, you can listen to
The audio or find the video somewhere
Of his panel at The Last Hope
RIAA Litigations
How the tech community can help
And I want to thank both of you for
Fascinating discussion
Joe Sibley, what can people do to get
Involved in this case to show support, anything?
Well I think what they can do
Is they can begin to lobby
Their local elected officials
To institute some sort of
Reform in the
Statutory scheme to
Have some sort of threshold
That one has to cross before
These statutory damages even come into play
And I think there should be a separate
Statutory penalty scheme for
Situations like this where
Someone is merely
Using music online for personal use
And not for commercial use
All right, Ray, any last words from you?
I want to mention that Dr. Kim
Who was the expert witness
In Mr. Sibley's case
Was also hired
With a grant from the Free Software Foundation
And unfortunately
He wasn't called as a witness
At all
Before the trial, the judge
Gave an opinion
Restricting him
On what he could testify about
Which I don't think was a fair opinion
At all
But nevertheless I would have enjoyed
Hearing what Dr. Kim had to say
About Dr. Jacobson
So I think
What people can really do
Is make themselves available
To work with attorneys in their area
If they have the qualifications
To be either a tech consultant or an expert witness
And people who can afford it
To make some kind of contribution
To the Free Software Foundation's
Expert Witness Defense Fund
And how can they do that? Is there a website?
There's a book
There's a button for it
On my blog
For the page
But anybody who listens to this show
Can go to fsf.org and find the place
To contribute to the
Anti-RIA Expert Witness Defense Fund
Okay, I want to thank Ray Beckerman
And Joe Sibley for joining us
Tonight and sharing a whole lot of
Legal knowledge with our listeners
Our address, oth at 2600.com
That's it for Off the Hook this week
We'll see you again next week. Good night.
It just kills me
When all you have to do
Is come home
Or do it
Anytime
Cause there's
Nothing no one knows
Nothing no one knows
Leave your message
On the answer phone
I'm not
Trying
To be clever
But at least
We're not still
Living together
All those
Codes in the
Evening
If I answered
They'd hang up without speaking
And they
Vote
You
But I
Don't wanna cry
Or talk
For an hour
To a machine
On the end
Of a telephone line
It just kills me
When all you have to do
Is
Come home
Or do it anytime
Cause there's
Never no one home
Never no one home
Leave your message
On the answer phone
Hello
It's me
I was just
Called to say
It's alright
You don't have to feel bad
About what you get up to
I just want you to
Stay in touch
Are you really not at home
Or are you there but not alone
Screening calls
You don't want to receive
Meaning calls
Calls that come
From me
Oh I need
To see ya
It's not enough for me
Just to hear ya
It's such a
Fear
My temperature
But you wanna
Stay out to me today
Oh it just
Kills me
When all you gotta do
Is come home
Or do it anytime
Cause there's
Never no one home
Never no one home
Leave your message
On the answer phone