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Local view: RIAA actions don’t give due process

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BY DEB BIGGS

Friday, Oct 10, 2008 - 01:03:54 am CDT

Oh my. After reading the negative comments regarding the Sept. 28 article about my family being affected by the illegal downloading suits, I felt I had to make some things clear that were not in the article. In hindsight, I wish I would have had been able to sit down with Cindy Lange-Kubick for a serious discussion of this whole topic.

My husband, Chuck, and I brought such a private matter to the reading public not to garner sympathy for our family or to say “whah” because our son was caught downloading and others weren’t.

As parents, we felt we should alert other individuals, and parents, of the possibility of this happening to them and their family. The way we understand it now is any computer with music on it and the ‘ability’ to share violates the Recording Industry Association of America legislation.

We also wanted to inform others of the unfair practices of the RIAA. Even if what my son did was deemed wrong, their use of legal fear and intimidation in their dealings is not right.

As California District Judge James Otero wrote in a recent RIAA lawsuit: “The concern of this Court is in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs [RIAA] to pound settlements out of unrepresented defendants.” We couldn’t have said it better. This is what I refer to when I say “legal bullying.”

The Constitution states that we are all guaranteed due process of law. With this, each person is entitled to notice of a suit, an opportunity to be heard and the given right to defend him or herself. My expressions of anger and saying “it’s just not right” were in reference to the fact that our son (as well as many other individuals receiving the letters) did not receive due process of law, simply because he couldn’t afford the expensive legal fees he would incur “to be heard.”

You see, the notice he received was not charging him with downloading music but was accusing him of “distributing music.” Not because he had ever shared any music (he hadn’t) but because he had music on his computer and it was possible on a peer-to-peer network to do so.

In April, Judge Neil V. Wake made the following ruling: “Merely making a copy available does not constitute distribution. …  statute provides copyright holders with the exclusive right to distribute ‘copies’ of their works to the public ‘by sale or other transfer of ownership, or by rental, lease, or lending.’ Unless a copy of the work changes hands in one of the designated ways, a ‘distribution’ under … 106(3) has not taken place.”

This and other recent rulings we read made the issue of copyright infringement even more confusing and unclear.

I have been following a case in Minnesota where the RIAA sued a single mother and originally won. She was fined $222,000 for songs she downloaded. The judge, after the ruling, received many letters from law professors and legal professionals around the country objecting to his incorrect instructions to the jury. Thankfully, Judge Michael J. Davis declared a mistrial and made the following statements in his ruling:

“The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases. … The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts ….”

After the LJS article came out, many anonymous bloggers made harsh judgments of my son, and me, as a mother, educator and counselor. That hurt. I couldn’t believe people could make so many judgmental inferences from such a scant article. I am not perfect, nor is my son. He’s human, he’s young, he’ll learn. Life’s natural consequences teach themselves. As a family, we stand together and support each other in all that life brings.

I believe in justice and fairness, not just for my son, but for all. If I see inequity, against anyone, I will speak up. The three days we received to “pay up, or else” and several other methods of the RIAA felt very wrong. Especially when you can’t get a live person on the phone.

I believe whole-heartedly in consequences. I dole them out as “natural teachers” to children all the time, in the hopes that they will remember them in making future choices. I also teach them to treat everyone the way they want to be treated.

Last but not least, I believe the punishment should fit the crime. In Saturday’s Daily Record, I read of individual fines for various crimes and couldn’t help but think (with humor in mind) of the credit card commercial … $400 fine for assault … $400-$500 fines for driving while intoxicated … $4,000 fine for downloading music …the look on my husband Chuck’s face when he saw the RIAA letter: Priceless. Please let this important information and our son’s expensive lesson be your teacher.

Deb Biggs and her family live in Lincoln.


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Eric wrote on October 10, 2008 10:34 am:
" And that lesson would be: if you're an adult, don't steal music because your mother will have to write a letter explaining how the people that caught you are the real bad guys. "

 I read the posts.. wrote on October 10, 2008 10:35 am:
" I rarely comment on the LJS site due to the lack of intelligent comments by its posters. I read the comments after your article. People were quick to judge as usual. Most of them not all that intelligent. People assumed they knew what actually happened based on a typical LJS article that doesn't get the whole story. Don't even get me started on the personal attacks. I agree with you completely, threatening lawsuits against people who can't possibly afford the legal fees while simultaneously giving them a 'cheap' out is, by your definition, bullying. What about blackmail? extortion? The real story isn't about whether what your son did is right or wrong. That part is self-evident. Its about the RIAA and whether what they are doing is right or wrong. Good luck to you and your family. I certainly wouldn't want my personal issues open for public discussion...especially when people can hide their identity. "

 Tara wrote on October 10, 2008 11:09 am:
" We have safeguards to protect against this very thing in the criminal system with public defenders ("you have a right to an attorney. If you cannot afford an attorney, one will be appointed for you."). The idea being that if people charged with crimes did not have the financial means to prove their innocence, prosecutors could take advantage of the situation. This is the first wide-spread epidemic of this behavior that I have heard of in the civil side of the courts. These defendants should move to join all of their cases and then obtain joint representation to make it fiscally practical to fight this. Then get a fair and reasonable settlement that fits the crime.

Deb is right, if this kid stole the same number of songs (413) on CDs from Walmart, (say 30 CDs) at $15 each ($450 total), he would be charged with theft of goods more than $200 but less than $500, which is a class I misdemeanor and punishable buy up to 1 year in jail and/or $1000 fine. He'd may have to pay restitution or return the property. Since he just has a copy, there is nothing to return, and if he didn't share the songs, there is no restitution. "

 To Tara wrote on October 10, 2008 1:23 pm:
" Public defenders are available in criminal cases NOT civil cases. The RIAA lawsuits are civil in nature and therefore public defender representation would not apply. "

 Luke wrote on October 10, 2008 1:43 pm:
" Deb, your son is not being charged with a crime. Thus, comparing fines to judgments is very apples and oranges. If I drive negligently and run over your foot, I might get fined $1000. However, if you sue me for running over your foot, you might get a judgment of $100,000.

Furthermore, your due process right was most certainly not infringed. Your son could have represented himself. You had (have) no right to an attorney - legally or morally. "

 To Eric wrote on October 10, 2008 1:50 pm:
" If you would read instead of comment you might see what the problem is. It says, and I quote "You see, the notice he received was not charging him with downloading music but was accusing him of “distributing music.” Not because he had ever shared any music (he hadn’t) but because he had music on his computer and it was possible on a peer-to-peer network to do so." Take a chill pill and think about it. If you have hundreds or even thousands of songs in your iTunes folder that you LEGALLY purchased it appears to me that this would be "distributing" since the ABILITY TO DISTRIBUTE is there and that gets you hammered by the RIAA even though you NEVER downloaded or shared a song. And that my friends is gestapo tactics. But what do you expect from the RIAA. They bank on the fact that people cant afford the huge lawsuit expenses and will settle. Thats their plan, and until someone (Congress) steps in to level the playing field they will continue to use these high handed tactics. "

 legal bullying is nothing new wrote on October 10, 2008 2:26 pm:
" Legal bullying is an interesting term. It is used by anyone who has a staff of attorneys. Apparently Deb's never gotten into a disagreement with an IRS or had their property taken by eminent domain or she would already know that part of the intimidation process is to make your legal fees so outrageous that you will buckle under and agree to whatever unreasonable fine or lop-sided settlement that they want to muster up. And, apparently Tara has not represented anyone in one of these cases either because she thinks this isn't widespread. Tara's advice, however, is good, but most people will pay up rather to join their cases. "

 Chris wrote on October 10, 2008 2:51 pm:
" Deb, I didn't read the original article or the comments but let me say that I completely agree with you. The RIAA's actions are not only despicable but in my opinion blackmail. I feel for your son, as you say, this is a tough lesson to learn. Unfortunately, we the people can't afford to combat the lobby the RIAA has in place in Washington. The one thought that should give you comfort is that this industry can't survive long by suing their own consumers. If they can't find a business model that works in this environment they won't last long. The simple answer is, vote with your wallet, don't buy their products. I stream radio from free (legal) websites and support local artists. I for one will not reward companies like these. "

 Locke wrote on October 10, 2008 3:05 pm:
" I think Ms. Biggs is being disingenuos. While we may share concerns about the RIAA's actions, they are not going after people who merely download songs. Rather, they are going after people who share songs and despite her disclaimer, I doubt if her son did not share songs. He may not have done so intentionally, but the default of most peer-to-peer programs is to allow sharing.
With regards to Tara, your analogy is not correct. Once again, the sharing is what is important. What would be the penalty if the son had stolen the CD's from Walmart, made hundreds or thousands of copies, and then sold them in a stand next to the store? I imagine it would be more than stated by Tara.
Once again, the sharing is the real offense here. "

 Sigh wrote on October 11, 2008 7:39 pm:
" This is not stealing.

It is "copyright infringement."

Just like bringing a DVD to your class at school isn't stealing, it's copyright infringement. Back in my day we would watch musicals illegally in my music class. The horror! "

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