[A2k] IP-Watch Inside Views: Interview With Ray Beckerman, Defender Against RIAA

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Intellectual Property Watch

3 December 2008


Inside Views: Interview With Ray Beckerman, Defender Against RIAA


Disclaimer: the views expressed in this column are solely those of the
authors and are not associated with Intellectual Property Watch. IP-Watch
expressly disclaims and refuses any responsibility or liability for the
content, style or form of any posts made to this forum, which remain solely
the responsibility of their authors.

Ray Beckerman is a commercial litigator and internet law attorney who has
represented defendants that the Recording Industry Association of America
(RIAA) has accused of music file sharing in copyright infringement lawsuits
in the United States. Beckerman is an outspoken critic against the RIAA and
recording companies EMI, SONY BMG, Warner Brothers, and affiliates'
five-year lawsuit campaign against alleged illegal file sharers. He attacks
the legalities of the RIAA's lawsuits in "Large Recording Companies v. The
Defenceless: Some Common Sense Solutions to the Challenges of the RIAA
Litigations" published last summer in The Judge's Journal. Beckerman also
publishes a popular blog,  <http://recordingindustryvspeople.blogspot.com/>
"Recording Industry vs. The People", which tracks the RIAA's litigation
campaign. Intellectual Property Watch contributor Bruce Gain recently sat
down with Beckerman in New York.

INTELLECTUAL PROPERTY WATCH [IPW]: So, in a few sentences, what is the state
of the RIAA's litigation campaign?

RAY BECKERMAN: The RIAA litigation has switched its focus from users of
commercial internet providers to colleges and universities. I believe the
tide has turned in those cases, because I believe the courts in the United
States were caught off guard by this onslaught. They saw large sets of
papers from big law firms and a lot of impressive techno-speak. They didn't
understand how phoney these litigations were. Technology buffs do see it
right away. But judges are mostly not technology buffs. So many of them
signed orders and things that they should not have signed.

There was nobody there fighting back so they didn't have anybody else in the
courtroom to tell them otherwise. What's happened is that during the past
three years more and more people have been starting to fight back. More and
more lawyers have been coming into it. Information has been becoming more
available as to what is going on in these cases. And judges are starting to
get wise to it.

We're seeing a rebellion by many of the judges. The most striking example
was that the one trial victory the RIAA had in Duluth, Minnesota, was based
on a major flaw in the jury instructions, which instructed the jury the
opposite of what the law actually is [by awarding damages of $222,000 for 24
song files]. By my calculations, that is 23,000 times the actual damages.
The jury was like a runaway jury and they were confused.

Part of the confusion came about from the jury instructions. The judge had
actually given a correct jury instruction. But then the RIAA objected to it,
and then they had an oral argument starting at 8:00 am the day the case was
turned over to the jury, and they convinced the judge to change his mind,
which was a big mistake, because the judge should make those kinds of
decisions before the trial, should have time to research the question, and
should have had his assistants look at the case law, the statutes, and the
treatises. Instead, while he made the correct decision initially, he changed
his mind due to the fact that the RIAA's smooth talking attorney convinced
him that he was wrong.

The defendant's attorney was a local guy that didn't even want to be there.
He had taken the case on the condition that he would be paid, and the
defendant didn't pay him, so he made a motion to be out of the case, but the
judge would not let him. The judge forced him to do the trial against his
will. It colours everything that happened because he didn't put up the kind
of defence that he should have put up. He didn't tell the judge that there
was an appeal court's case, which was binding on the judge, which directly
contradicted the RIAA's instruction. The RIAA lawyer was under obligation to
tell the judge about that, but they didn't either. So the judge gave the
wrong instruction; the jury came back with the wrong verdict; and about
eight months later, the judge came to the realisation that he had committed
a manifest error of law by giving that jury instruction, and he mentioned in
his decision that neither lawyer had told him about it.

IPW: What is the outlook for the music industry?

BECKERMAN: I think there is going to be a golden age of music. You are going
to see more and more artists able to make a living from what they do. You
may see fewer superstars and platinum albums, but you are going to see a
better music industry. My guess is that these companies [such as EMI, SONY
BMG, and Warner Brothers] 10 years ago represented 90 percent of the
recording business. My guess is that they now represent 70 percent and that
will keep on going down.

IPW: What is going on with video file sharing? What parallels exist with the
music industry?

BECKERMAN: I think the Motion Picture Association of America (MPAA) is in a
similar dance with death. They are frantically trying to sue anybody who is
doing anything creatively, such as YouTube. Probably, as their share prices
go down, they will be easier and easier to take over. So what I think you
will see happening is eventually that the companies they are suing will buy
them up one day. And that will be the end of the lawsuits.

IPW: Outside of the litigation sphere, will the lawsuits eventually trickle
to a stop? What will happen three to five years from now?

BECKERMAN: I don't know when, but I do believe it will end. I have a hunch
it will be soon. But whether it will be the courts that will shut it down or
when Chapter 11 shuts it down, I don't which will come first. I have a
hunch, knowing how slow the courts work that the business world will take
care of it sooner than the courts will.

IPW: You don't see legislators stepping in and creating laws that will
protect consumers against litigation?

BECKERMAN: I don't see that happening. I don't know why it is not happening.
Maybe it has to do with large contributions from these big companies. I know
the record companies have greatly increased the money they have spent on
lobbying.

IPW: The issue is that you have all of this media, whether they are books,
films, or music, which is so easy to copy and distribute digitally. So how
do artists get paid?

BECKERMAN: I think most people want to buy first-class copies and they want
to pay a reasonable price for things and they like to buy it directly
knowing that the money goes directly into the artists' pockets. I don't
think you are just going to see copies without paying. I think you are going
to see people making money from it. People will have to build good will.
More and more you will see direct marketing online by a responsible
middlemen who are looking for most of the money to go to the artist and are
looking for just a small percentage of the transaction for commerce. And
every day I see innovative ways of doing these things. And other new and
interesting things are going to happen.

IPW: In Europe, the UK and French governments are beginning to allow record
companies to monitor uploading traffic, match names to IP addresses, and
have letters sent to alleged illegal file sharers. Is that a possible
solution?

BECKERMAN: I would like to see governments everywhere remembering whom they
are supposed to serve, which is the people. It is really only 10
corporations that are doing this whole thing. These giant companies are
running the whole thing. You will never see any smaller companies or any
other companies involved. The 10 corporations are trying to take over the
world. And I think it is very important for countries in Europe to be
careful not to let themselves be used this way. I was pleased to see that
the Netherlands court actually looked at the investigation and realised that
it was phoney and there wasn't proper evidence when they refused to let the
ISPs divulge customer information.

In Germany, the record companies were improperly using the criminal justice
system as a means of extracting information about whom to sue. They were
using it for monetary purposes. And that was shut down. I would like to see
all of the governments of Europe stop serving these 10 corporations.

In the United States it is really up to the judges to shut it down, and they
are really starting to do that.

IPW: Thank you.

Bruce Gain may be reached at  <mailto:info@ip-watch.ch> info@ip-watch.ch.

Intellectual Property Watch





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