Library Juice 6:20, September 18, 2003
Special issue on the RIAA's lawsuit against a child for file sharing
and ALA's legal counsel, the law firm Jenner & Block.A discussion on the ALA Council listserv.
_________________________________________________________________________
[ALACOUN:10323] ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 13:53:09 -0400
From: Mark Rosenzweig <iskra[at]earthlink.net>
To: ALA Council List <alacoun[at]ala1.ala.org>As the RIAA's 200+ lawsuits against file-swapping of downloaded
recordings unpack from the briefcases of their corporate lawyers, we
can see the brilliant legal strategy emerge with the first head on
the block.Commencing with suing a 12 year old Latina honor student in NYC who
'stole' 200 recordings downloaded to her home computer truly takes
one's breath away!The RIAA;s legal representative's sheer tone-deafness to public
opinion led to a firestorm of incredulity which saw the lawyers
scramble for an out-of-court settlement in which they still,
nonetheless, insisted on making their point by collecting $2000.00
from the family of Ms. Torres, the 'perp', and forcing the thieving
kid and her Mom (faced with their array of corporate legal power) to
sign a statement and make a public announcement explaining that they
were sorry and unaware of how young Torres' of act was hurting the
entire recording industry, its artists and its shareholders alike,
and was a grievous wrong.Remember now that ALA's law firm, Jenner & Block, is a representative
of the RIAA on the opposite side of ALA itself in the precedent legal
arguments.Whether they actually are responsible for pursuing Ms. Torres and
extracting a confession, apology and the $2000 she owed the industry
to settle (that's 200 albums,10 songs each at $2.00 per track...) .We need to know NOW whether, as many of us have asked previously,
Jenner & Block is still considered appropriate legal counsel for ALA
. Not only conflict of interests, but --- if they are involved in
this specific legal auto-da-fe in NYC-- gross almost brutal
bullying lack of concern for the public's sensibilities in this
matter.I would appreciate some response from the ALA executives and board.
It's now involves a public issue attracting attention worldwide, the
opening shot of the recording industry's case against the public
interest as ALA perceived it.Please see the material which follows, forwarded on behalf of ALA
member Sam Trosow.Mark Rosenzweig
>
>Subject: RIIA lawsuits and a question
>Reply-To: strosow[at]uwo.ca
>Sender: owner-PLGNet-L[at]listproc.sjsu.edu
>
>There is much more info on the RIIA latest round of lawsuits against
>individual internet users and their "Amnesty" program at
>
>http://www.eff.org/share/amnesty.php
>
>But here are some interesting blurbs that show just how low the RIIA
>will stoop in their ongoing efforts to intimidate the public.
>
>These news blurbs below are all about an RIIA lawsuit filed against
>a 12 year old living in a housing project in New York City. (all of
>the suits were filed in Federal Court). The stories do not go into
>enough detail to say who the attorneys of record are for the RIIA in
>these actions. We know that Jenner and Block is doing legal work for
>the RIIA on the issue, but I don't know if the firm is actually of
>record on these individual cases (perhaps they have farmed the work
>out to local counsel, I don't know)
>
>It would be interesting to find out, though. Is anyone in NYC at
>all conventient to the federal district court? If so, it might be
>interesting to pop in and look through the RIIA filings to see who
>is of record for the RIIA on these cases. I'll keep searching for
>related news stories to see if I can find the answer that way.
>
>I think it's really despicable to go after a 12 year old, but
>apparently it's all part of the RIIA strategy.
>
>Sam Trosow
>
>
>http://www.foxnews.com/story/0,2933,96797,00.html
>
>NEW YORK . The music industry has turned its big legal guns on
>Internet music-swappers . including a 12-year-old New York City girl
>who thought downloading songs was fun.[...]
>----------
>
>http://yro.slashdot.org/yro/03/09/10/0046257.shtml?tid=141&tid=188&tid=98&tid=99
>
>Murdock037 writes "It looks like the RIAA has rushed to settle with
>12-year-old Brianna LaHara, after serving her with a lawsuit on
>Monday. It looks like her single mother will be paying a $2,000 fine
>to the RIAA for her daughter's song-swapping, which they had thought
>was legal. Said Brianna: 'I am sorry for what I have done. I love
>music and don't want to hurt the artists I love.' What a relief this
>must be for the Rolling Stones."
>------------->
>http://news.yahoo.com/news?tmpl=story2&cid=501&u=/ap/20030909/ap_on_en_mu/downloading_music_11&printer=1 >
>Girl, 12, Settles Piracy Suit for $2,000
>Tue Sep 9, 7:19 PM ET
>
>By TED BRIDIS, AP Technology Writer
>
>WASHINGTON - A 12-year-old girl in New York who was among the first
>to be sued by the record industry for sharing music over the
>Internet is off the hook after her mother agreed Tuesday to pay
>$2,000 to settle the lawsuit, apologizing and admitting that her
>daughter's actions violated U.S. copyright laws.
>[...]
>
>----------
>
>http://theregister.com/content/6/32731.html
>
>The RIAA sees the face of evil, and it's a 12-year-old girl
>By Ashlee Vance in Chicago
>Posted: 09/09/2003 at 13:54 GMT
>
>
>The RIAA has nailed one of the most prolific file-traders in the U.S.,
>filing a lawsuit against 12-year-old Brianna LaHara.
>
>When not at the playground with her friends, "Biggie Brianna" is trading
>music files from her home in New York. The little girl received one of the
>261 lawsuits filed by the RIAA (Recording Industry Association of America)
>on Monday, according to the New York Post. She may look like a sweet and
>innocent child, but the RIAA says it's only going after major copyright
>violators at the moment. So you make the call.
>[...]
>---
>
>http://www.theregister.co.uk/content/6/32740.html
>
>RIAA keeps 12-year-old quiet with $2,000 bill
>By Ashlee Vance in Chicago
>Posted: 10/09/2003 at 00:28 GMT
>
>
>The RIAA took quick steps to blunt a public relations atrocity by agreeing
>to settle out of court with a 12-year-old girl accused of trading
>copyrighted songs.
>
>It took all of twenty-four hours for young Biggie Brianna to be hit with a
>lawsuit and then pay up for her alleged crimes. The youngster's mother has
>agreed to shell out $2,000 to get the RIAA (Recording Industry Association
>of America) off her family's back. This marks the first settlement to come
>as a result of the 261 lawsuits the RIAA filed this week.
>[...]
----------------------------------------------------------------------
[ALACOUN:10324] Fwd: have answer to RIIA question
Date: Wed, 10 Sep 2003 14:02:53 -0400
From: Mark Rosenzweig <iskra[at]earthlink.net>
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: iskra[at]earthlink.netForwarded for Sam Trosow. Yes, Jenner & Block--ALA's lomng-time law
firm -- is, indeed, listed on the pleadings.
Mark Rosenzweig>[From Sam Trosow....]
>
>Thanks to some of the members of the law-lib list, I have the answer
>to my question. While there are local counsel in each case, both
>the RIIA House Counsel and Jenner & Block are listed on the
>pleadings.
>
>Having confirmed J&B's involvement in this effort, I'll now say that
>this is just one more reason why ALA needs to publicly diassaciate
>itself from Jenner & Block immediately. I think they should also
>issue a statement critical of this latest round of lawsuits and
>provide some resources on the website to help people who may be
>looking for information on the issue. If nothing else, they could
>just point to the materials on the EFF website (at
>http://www.eff.org/share/amnesty.php) that provide concrete
>assistance to persons served with papers or looking for info on the
>subject) I would imagine that the number of these actions will
>begin to increase.
>
>Sam Trosow
>University of Western Ontario----------------------------------------------------------------------
[ALACOUN:10325] Re: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 11:06:52 -0700
From: Michael Gorman <michaelg[at]csufresno.edu>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: ALA Council List <alacoun[at]ala1.ala.org>Dear Mark
I am finding this discussion more than a little baffling. I agree that
only bone-heads would choose a 12-year old as a test case, especially as,
as you say, public opinion is on the side of the thieves, not the owners of
the intellectual property that is being stolen. I assume that, if
organized and numerous groups of students were stealing books from Barnes &
Noble, videos from Blockbuster, or, come to that, CDs from Tower Records,
there would not be calls for ALA to take their side. Why is it OK to steal
intellectual property when it is in digital form and not when it is in
tangible form. Unless one is a philosophical anarchist and agrees with the
late Pierre-Joseph Proudhon that property is theft (La propriete c'est le
vol), surely one cannot sympathize with theft for amusement?All the best, Michael
----------------------------------------------------------------------
[ALACOUN:10326] RE: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 11:17:21 -0700
From: "K. G. Schneider" <kgs[at]bluehighways.com> (lii.org)
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: <kgs[at]bluehighways.com>Has ALA taken a position on the RIAA's strategy? The RIAA is certainly
looking heavy-handed, and clearly didn't think through what it would
look like to put a 12-year-old honor student on a perp walk, but if we
haven't taken a position, on this specific issue, does it matter what
position Jenner & Block are representing?I just saw Michael Gorman's note, and agree with it wholeheartedly. I
can't see the American Library Association coming out with a position
where it approves the theft of copyrighted material. We can do much
better in other areas of digital copyright issues, such as insisting
that major publishers not get exempted from public domain laws, and
working to retain fair use in meaningful forms for our users.Karen G. Schneider
----------------------------------------------------------------------
[ALACOUN:10327] RE: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 12:36:09 -0600
From: "Janet Hill" <Janet.Hill[at]colorado.edu>
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: Janet.Hill[at]colorado.eduMark Rosenzweig describes the RIAA lawsuits, including one against a 12-year
old who downloaded music, and notes:Remember now that ALA's law firm, Jenner & Block, is a representative
of the RIAA on the opposite side of ALA itself in the precedent legal
arguments.I respond: I'm confused. Is ALA on the side of theft of intellectual
property? I know that we often say that "freedom of access to information"
is one of our core values, but I interpret that as "freedom TO access
information" not "the right to have any and all information for free."It's a serious question. What aspect of the current suit, or the stands
upon which it is based, does ALA oppose?janet swan hill
councilor at large----------------------------------------------------------------------
[ALACOUN:10328] RE: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 14:22:24 -0500
From: "S.Michael Malinconico" <mmalinco[at]slis.ua.edu>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: mmalinco[at]slis.ua.eduAt the risk of speaking for councilor Rosenzweig--who is eminently
capable of speaking for himself; and far better than I could--I don't
believe that Mark was seeking to defend the theft of intellectual
property. I think he was commenting on the heavy-handed tactics
employed by the RIAA--and since legal action was involved, Jenner and
Block's contribution to that strategy.Theft of intellectual property is an offense, as is jaywalking,
littering, and murder. Yet, as civilized people we expect that societal
responses to such transgressions be commensurate with the offenses
committed and the intentions behind those offenses. We would not expect
to treat a 12 year old who stole her father's cigarettes or her mother's
gin and resold them to another minor--a crime in most jurisdictions--in
the severe manner that we would treat the head of an organized ring of
drug dealers.Since so much of American life is now sanctioned or excused because of
its potential to respond to terrorism, we should perhaps reflect on the
similarities between the RIAA's tactics and terrorism. The RIAA seems
to have singled out a particularly vulnerable target to serve as a clear
object lesson to everyone that NO ONE is immune from their legal reach.
Parenthetically, the Nazis practiced similar tactics in Norway and in
France. In response to attacks by the Norwegian or French resistance,
the Nazis summarily executed numerous suspected militants as object
lessons to dissuade others from harassing the "liberators from the
Fatherland."I think Mark is asking a very valid question: was Jenner and Block
party to the development of the sort of terrorist strategy that the RIAA
seems to be using or as the RIAA's legal counsel what sort of advice did
they give their client regarding this Draconian policy?----------------------------------------------------------------------
[ALACOUN:10329] Re: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 15:04:47 -0500
From: "James B. Casey" <drjbc92[at]lib.oak-lawn.il.us>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: drjbc92[at]lib.oak-lawn.il.usMichael:
The merits of the various arguments in favor of protecting
intellectual property rights and those favoring "fair use"
are not really the central issue. I don't think that I have
ever heard any of the very knowledgeable defenders of
"fair use" fully negate the validity of protecting the rights
of artists and companies to secure fair market value for
their works. There has to be a balance which takes both
elements into account.That being said, the law firm which ALA has employed
to defend our "fair use" side of the case should probably
not also be acting on behalf of those who wish to
assert the rights of companies to secure revenue from
the intellectual property they market -- effectively
representing both sides of the same issue on the national
stage and in the courts (state and federal).James B. Casey -- Councilor-at-Large
Michael Gorman wrote:
>
>Dear Mark
>
>I am finding this discussion more than a little baffling. I agree that
>only bone-heads would choose a 12-year old as a test case, especially as,
>as you say, public opinion...----------------------------------------------------------------------
[ALACOUN:10330] Re: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 13:34:57 -0700
From: "K. G. Schneider" <kgs[at]bluehighways.com> (lii.org)
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: <kgs[at]bluehighways.com>Here are several background links from various perspectives, if anyone
is wondering what this debate is about:From Slate:
http://www.wired.com/news/digiwood/0,1412,60345,00.htmlNYT: (requires free registration)
New Parent-to-Child Chat: Do You Download Music?
http://www.nytimes.com/2003/09/10/technology/10MUSI.htmlFrom the RIAA:
Recording Industry Begins Suing P2P File Sharers Who Illegally Offer
Copyrighted Music Online
http://www.riaa.com/news/newsletter/090803.aspEFF:
http://www.eff.org/share/
File-sharing: It's Music to our EarsStrategically, I think the RIAA is making short and long-range mistakes.
Short-range, it went after the biggest abusers, but didn't screen this
group for the inevitable teen honor student or single mom just trying to
listen to music, etc. Most people are reacting sympathetically, which
would not be the case if this teen had boosted $2,000 worth of clothing
from Macy's.Long-term, the RIAA has to figure out how to make money in a
file-sharing world, and using lawsuits to stem technology isn't going to
work. The EFF offers some suggestions, although some of them are fairly
woo-woo "let's all share and share alike" stuff that sounds fine if you
don't actually have to earn a living as an artist or publisher. The RIAA
has the biggest stake in figuring this out, and that should be its
focus; there are many artists who can benefit from reasonable revenue
models.Regardless, if Jenner and Block wants to represent the RIAA, I don't see
that as damaging our relationship with the law firm. (There may be other
reasons to evaluate this relationship, of course.) For all I know they
represented Winona Ryder, too.Karen G. Schneider
----------------------------------------------------------------------
[ALACOUN:10331] Re: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 16:31:06 -0400
From: Mark Rosenzweig <iskra[at]earthlink.net>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: iskra[at]earthlink.netDear Michael,
The Council list may not be the best place to explore the core issue of why
ALA should oppose (as it did and, I assume, still does) the position of the
RIAA in this matter, because of the complexity and ambiguities, ethical and
legal, of the underlying arguments and their assumptions.You noted that, for the moment ,the issue for ALA, certainly as I see it,
is only that ALA is doling out the dough to bone-headed legal counsel which
has a conflict of interest with us on what we defined as a key issue to
take to the courts.Just for the record, I am in the midst of an argument against the popular
position that 'property is theft' and can tell you that I find that very
line of Proudhon's is a widespread notion in cyberspace which,
nonetheless, I believe cannot be an intellectually valid premise of a
defense of the public interest.The attitude that 'Property is theft' simply denies the problem of the
reality of different forms of property in modern society, and is a juvenile
evasion of the difficult questions.Mark R.
At 11:06 AM -0700 9/10/03, Michael Gorman wrote:
>Dear Mark
>
>I am finding this discussion more than a little baffling. I agree that
>only bone-heads would choose a 12-year old as a test case, especially as,
>as you say, public opinion....----------------------------------------------------------------------
[ALACOUN:10332] RE: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 15:47:43 -0500 (GMT-05:00)
From: Sue Kamm <suekamm[at]mindspring.com>
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: Sue Kamm <suekamm[at]mindspring.com>Janet Hill wrote:
>Mark Rosenzweig describes the RIAA lawsuits, including one against a 12-year
>old who downloaded music, and notes:
>
>Remember now that ALA's law firm, Jenner & Block, is a representative
>of the RIAA on the opposite side of ALA itself in the precedent legal
>arguments.
>
>I respond: I'm confused. Is ALA on the side of theft of intellectual
>property? I know that we often say that "freedom of access to information"
>is one of our core values, but I interpret that as "freedom TO access
>information" not "the right to have any and all information for free."
>
>It's a serious question. What aspect of the current suit, or the stands
>upon which it is based, does ALA oppose?Librarians have faced this issue before. When a library goes after some
teenager or little old lady to collect overdue fines and/or retrieving
materials, that makes national news.More to the point here, will Council be asked to make a policy decision, or
is that something that the Executive Board will decide?I seem to remember that ALA has long been in favor of establishing "fair
use" for library materials., and, unless I'm mistaken no concrete
definition of that concept has been created.Your friendly CyberGoddess and ALA Councilor-at-large,
Sue Kamm
Inglewood/Los Angeles, CA
Truest of the Blue, Los Angeles Dodgers Think Blue Week 2000
Visit my home page:
http://suekamm.home.mindspring.com/index.htm
email: suekamm[at]mindspring.com
"The difference between the possible and the impossible lies in a person's
determination."
--Tommy Lasorda----------------------------------------------------------------------
[ALACOUN:10333] RE: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 17:04:34 -0400
From: Mark Rosenzweig <iskra[at]earthlink.net>
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: iskra[at]earthlink.netThis is both amusing and scary. Some of the sagest Councilors of ALA
don't know (or if they do, don't believe in) the basis for a
significant legal challenge with which ALA has associated itself: the
brief against the RIAA position.What does that mean, if anything? Minimally, it means that there is
no education of the membership,(including us) about what is going on
in the policy arena as far a ALA's public position is concerned.While I have constructed my own argument on this matter (not to my
great satisfaction , I should note) I will spare you that, because it
is irrelevant to the matter at hand, the implications of which are
beginning, however, to ramify.I know why I am opposed to the RIAA, but -- I confess with
embarrassment mixed with uneasiness at the lack of communication
involved --I don't know why ALA is!I am pleased it is, but I would like to know why it is.
Mark Rosenzweig
----------------------------------------------------------------------
[ALACOUN:10334] Re: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 17:20:37 -0400
From: "Rettig, Jim" <jrettig[at]richmond.edu>
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: jrettig[at]richmond.eduMark, I hope you can explain how ALA has opposed the RIAA in the matter of
P2P file sharing. ALA Council has not adopted a policy on this nor has ALA
been involved in legal proceedings on this issue. ALA has indeed taken a
position on another issue involving RIAA; in the case of RIAA v. Verizon,
ALA filed a brief supporting Verizon's position. At issue in this case is
not file sharing, but the right of an ISP to protect the identity of its
subscribers when a copyright holder subpoenas that information in pursuit
of someone who is engaged in file sharing in violation of the DMCA or some
other part of US copyright law. The Verizon case is a privacy case, not an
intellectual property case. Alas, as this works it way through the appeals
process, the latest federal court ruling has been in RIAA's favor. If it
were not for this case, RIAA might not have the information needed to sue
individuals of any age. The music industry has taken a ham-handed approach
to copyright and new technology since the major copyright law revision in
the 1970s. Suing a junior high student whose family lives on the economic
edge is not the first time it has done something stupid to cause itself
embarrassment.See ALA's amicus curiae brief in the Verizon case at
http://www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Issues2/Copyright1/Verizonappealsbrief.pdfThe privacy issue in the Verizon case (similar to our concerns about
section 215 of the PATRIOT Act) and the intellectual property issues of P2P
software and its uses just happen to have the RIAA as a common element; but
they are very different issues.(Just a personal note; I wish this whole file sharing issue would just go
away. I am the lucky individual at my institution designated as the DMCA
agent. I get to respond to complaints from studios, etc., and talk with
students about this. Not the best use of my time!)Jim Rettig
University Librarian
Boatwright Memorial Library
University of Richmond
Richmond, VA 23173
Voice: 804/289-8456
FAX: 804/287-1840
jrettig[at]richmond.edu----------------------------------------------------------------------
[ALACOUN:10335] Re: ALA's lawyers & RIIA lawsuits?
Date: Wed, 10 Sep 2003 16:26:55 -0500
From: "S.Michael Malinconico" <mmalinco[at]slis.ua.edu>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: mmalinco[at]slis.ua.eduYes, well said, James. In fact, Article I, Section 8, of the US
constitution, which is the basis for copyright law in the US, states
that, "The Congress shall have Power To ... promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries; ...." Thus, the real intention of the copyright act is not
necessarily to protect intellectual property, but to ensure the
advancement of the arts and sciences. It is only in modern times that
copyright has become a tool--a bludgeon?--to protect the property rights
of copyright holders.This, of course, was exacerbated under the Clinton administration, which
gave over responsibility for revising copyright legislation to the
Department of Commerce.One of the fundamental principles of US copyright has historically been
"the right of first sale," i.e., the right of the purchaser of a
copyrighted work to dispose of it as he or she sees fit. It is under
this "right" that libraries are permitted to buy materials and freely
loan them to their patrons. Admittedly, the right of first sale has
been under intense scrutiny with the advent of publication in digital
form--but, should the pendulum swing so markedly in the direction of
owners of intelellectual property because of the unique properties of
this medium?Interestingly enough, the right of first sale is a unique characteristic
of US copyright law. For example, there is no such "right" in the UK,
so the British government finds itself obligated to compensate authors
(publishers?) for lost revenue because their works are circulated by
libraries--quaintly this legislation is termed the "Public Lending Right."There are various ways to protect intellectual property--or to earn a
FAIR return on it. Frankly, I don't think the RIAA has explored many of
them.Making an object lesson of a 12 year old child is one way to do it.
However, in my humble opinion, I don't think it is among the top 12 best
ways.If Jenner and Block did offer advice to the RIAA on this matter, I hope
that as good lawyers they were responsible enough to point out to their
clients a common legal principle: that of "the attractive nuisance."
For example, a swimming pool is an attractive nuisance. If a property
owner has an unprotected swimming pool and an child--albeit
uninvited--enters his or her property and drowns, the property owner is
held liable because he or she should have known that the swimming pool
would attract children, i.e., it is an attractive nuisance.No one condones trespassing, but there are limits even in law.
James B. Casey wrote:
> Michael:
>
> The merits of the various arguments in favor of protecting
> intellectual property rights and those favoring "fair use"
> are not really the central issue. ...----------------------------------------------------------------------
[ALACOUN:10337] An erroneous inference
Date: Wed, 10 Sep 2003 18:34:45 -0400
From: Mark Rosenzweig <iskra[at]earthlink.net>
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: iskra[at]earthlink.netAt 5:20 PM -0400 9/10/03, Rettig, Jim wrote:
>Mark, I hope you can explain how ALA has opposed the RIAA in the matter of
>P2P file sharing. ALA Council has not adopted a policy on this nor has ALA
>been involved in legal proceedings on this issue. ALA has indeed taken a
>position on another issue involving RIAA; in the case of RIAA v. Verizon,
>ALA filed a brief supporting Verizon's position.That was an erroneous inference I made from my reading of Michael Gorman's
post. I inferred that he knew of an ALA position of which I was not aware
about the P2P and the RIAA.I was wrong on that count. The ALA has not taken a position. I, not MG, am
entirely responsible for that mistaken impression.However, my principle concern, the urgency of reconsidering the retention
of a law firm representing RIAA in another matter --a matter, as well,
fraught with implications for librarians -- the RIAA case against P2P
sharing, remains.As I said initially -- and Malinconico and Casey basically concurred --
that is the crux of the matter at issue for us presently, especially in
light of this more publicized RIAA case.whether or not we are amicusThe other, separate , issue -- what our position should be with regard to
the argument RIAA is making against file swapping -- should not be, in my
opinion, 'neutral', because our approach to digital intellectual property
conflicts should not abide the kind of position that could lead to threats
of heavy fines against a 12 year old, among other things. That is just my
opinion.Mark R.
----------------------------------------------------------------------
[ALACOUN:10347] Re: ALA's lawyers & RIIA lawsuits?
Date: Fri, 12 Sep 2003 18:07:38 -0400
From: Skip Auld <auldh[at]co.chesterfield.va.us> (Chesterfield County Public
Library)
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: Miriam Nisbet <mnisbet[at]alawash.org>, Emily Sheketoff
<esheketoff[at]alawash.org>, Lynne Bradley <lbradley[at]alawash.org>, Mary
Costabile <mcostabile[at]alawash.org>, Carrie Russell <crussell[at]alawash.org>
Reply to: auldh[at]co.chesterfield.va.usI contacted several people at the ALA Washington Office about RIAA and
Jenner and Block. Legislative Counsel Miriam Nisbet responded as follows.
Note that she refers to a posting by Sam Trosow, which I believe is the one
forwarded by Al Kagan [ALACOUN:10342]. Mark Rosenzweig also forwarded some
comments by Trosow [ALACOUN:10323].Miriam Nisbet wrote:
Skip: This is a complex matter, as you recognize, and there are quite a
few issues that are getting mixed up together. ALA is certainly not in
favor of infringing activity or facilitating infringement. It's important
to recognize, though, that P2P file sharing can be used for legitimate
sharing of materials (including fair use) as well as illegitimate. Thus,
we're concerned that file-sharing not be "outlawed" and that people who use
that technology not be labeled as criminals. (A recent posting by Sam
Trosow contains a very helpful and more detailed analysis of some of these
issues.) As I think you know, ALA joined with the other library
associations on an amicus brief in favor of Verizon in the suit by RIAA
against Verizon. The primary issue is very narrow but important, and that
is the impropriety of having clerks of court (as opposed to judges) issuing
subpoenas under the DMCA. [go to the ALA copyright pages, court cases, to
see a summary and the brief: www.ala.org/copyright] There are also other
issues such as privacy. BTW, several people including Sam have mentioned
the Grokster case, which is on appeal in the Ninth Circuit (U.S. Court of
Appeals). We expect that ALA will be joining in an amicus brief in that
case (filing date is Sept. 24).Jenner & Block has a long relationship with ALA as outside counsel.
However, J&B is representing the RIAA in the Verizon case, as well as these
myriad cases against alleged infringers, and so obviously we're on opposite
sides here. We were also on opposite sides in the Eldred case, in which
J&B filed an amicus brief on behalf of the RIAA. As you're probably aware,
the Executive Board is considering whether ALA will drop J&B and retain
other counsel to avoid the appearance of conflict. Hope this helps.
MiriamMiriam M. Nisbet
Legislative Counsel
American Library Association
1301 Pennsylvania Ave. NW - #403
Washington, D.C. 20004-1701
Voice: 202-628-8410, x. 202,or 800-941-8478, x. 202 Fax: 202-628-8419e-mail: mnisbet[at]alawash.org
http://www.ala.org/washoff
----------------------------------------------------------------------
[ALACOUN:10349] Re: ALA's lawyers & RIIA lawsuits?
Date: Fri, 12 Sep 2003 20:34:25 -0400 (EDT)
From: <eharger[at]agoron.net>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: <alacoun[at]ala1.ala.org>, <mnisbet[at]alawash.org>, <esheketoff[at]alawash.org>,
<lbradley[at]alawash.org>, <mcostabile[at]alawash.org>, <crussell[at]alawash.org>
Reply to: eharger[at]agoron.netSkip,
Thanks for forwarding Nisbit's response to your query regarding ALA,
Jenner & Block and RIAA. Seems that the Washington office clearly
understands that J&B is NOT on ALA's side when it comes to fair use
issues. Shouldn't be too difficult for ALA Exec. Board to decide to no
longer retain J&B. As a dues paying member of ALA, I certainly don't want
any of _my_ hard earned money (never mind the time I put in as a volunteer
for ALA activities) going to a legal firm that opposes a central value of
our profession -- and fair use in copyright law is certainly that.ALA should be putting its money where its mouth is, and using a legal firm
that argues cases on behalf of groups with whom we have values in common
-- not on behalf of those who would remove fair use provisions from
copyright laws.Elaine Harger
----------------------------------------------------------------------
[ALACOUN:10350] Re: ALA's lawyers & RIIA lawsuits?
Date: Fri, 12 Sep 2003 21:59:46 -0400
From: Mark Rosenzweig <iskra[at]earthlink.net>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: <alacoun[at]ala1.ala.org>, <mnisbet[at]alawash.org>,
<esheketoff[at]alawash.org>, <lbradley[at]alawash.org>, <mcostabile[at]alawash.org>,
<crussell[at]alawash.org>
Reply to: iskra[at]earthlink.netLet me get this straight. Please correct me if I'm wrong.
RIAA obtained personal records in the first decision against Verizon,
which it won, precisely to pursue its litigation against individuals who
were file swapping.That decision was challenged by Verizon.
Jenner & Block is representing ALA as amicus curiae in Verizon's challenge
to the decision which allowed RIAA to do this, arguing on Constitutional
grounds, a privacy issue.At the same time, Jenner & Block is working for RIAA, arguing on copyright
grounds, in the myriad suits which have been launched against individuals
(like the 12 year old girl) by RIAA on the basis of private records, I
assume, like those obtained -- if not those very ones --- from Verizon in
the first decision.As Miriam Nesbit says, this is complex. But it clearly involves conflicts
of interest, as she also suggests.We are glad, given this, that ALA is, after all, re-considering its
relationship with Jenner & Block.And also I am happy that Miriam Nesbit clearly asserts that ALA's position
on 'fair use' is such that we would never accept, without changing it
substantively, that technical violations such as those being pursued by
J&B on behalf of RIAA are 'theft' plain and simple as some Councilors have
claimed.Mark Rosenzweig
ALA Counciulor at large----------------------------------------------------------------------
[ALACOUN:10352] Legal representation for ALA
Date: Mon, 15 Sep 2003 12:24:38 -0400
From: Ling Hwey Jeng <lhjeng00[at]uky.edu>
To: ALA Council List <alacoun[at]ala1.ala.org>
Reply to: lhjeng00[at]uky.eduAt 08:34 PM 9/12/2003 -0400, Elaine Harger wrote:
>...
>Seems that the Washington office clearly
>understands that J&B is NOT on ALA's side when it comes to fair use
>issues. Shouldn't be too difficult for ALA Exec. Board to decide to no
>longer retain J&B. As a dues paying member of ALA, I certainly don't want
>any of _my_ hard earned money (never mind the time I put in as a volunteer
>for ALA activities) going to a legal firm that opposes a central value of
>our profession -- and fair use in copyright law is certainly that.
>...I too am pleased to know that ALA is indeed seriously (re-)evaluating
Jenner & Block in deciding whether to continue retaining them as ALA legal
counsel, in lieu of potential conflict of interest within J&B as discussed
so far.Seems to me there are two issues here:
1. Whether Jenner & Block shares the same values with us (i.e., ALA)
2. Whether Jenner & Block has done the best they could to represent ALA
legally at all levels in public and at courts.
It's important that we (i.e., ALA) consider these two issues SEPARATELY,
when we evaluate whether to continue retaining J&B as ALA's legal counsel.The first issue is a philosophical one. Correct me if I am wrong, but my
understanding about legal practice is that the best attorneys are the ones
who set aside their own personal value systems and work for the best
interest of their clients, based on the value systems of their clients. At
the risk of offending those on the Council with legal training, I think
lawyers are but hired guns. They don't, and shouldn't, let their personal
value system get in the way of representing their clients. The same is true
with law firms.Just because J&B has attorneys representing clients whose value system
opposing ours is not, by itself, a sufficient argument for dropping
them. As previously pointed out re. bamboo curtain, it's not unusual,
among large legal firms, for the same firm to have two different legal
teams working for clients with opposing value systems, as long as there is
no conflict of interest between the two legal teams in the same firm (e.g.
using the same attorney).Personally I think the second issue is the only important one. The bottom
line question is "Has Jenner & Block done the best, as ALA had expected, to
represent us according to OUR value system?" There are several questions
ALA should investigate in this regard:
1. Does any of the J&B attorneys on our team have any conflict of interest
with the team working for RIAA?
2. What practice policy does J&B have in protecting itself against conflict
of interest between its two legal teams representing clients with opposing
value systems?
3. How often has Jenner & Block fallen short of upholding ALA values system
in their work for us so far?
4. Overall, has ALA been satisfied with the legal work performed by Jenner
& Block? Why and Why not?I hope the ALA Executive Board and ALA offices can share their assessment
on these four questions soon.
With respect, Ling hweyLing Hwey Jeng
Councilor at LargeAssociate Professor
School of Library and Information Science *Voice: 859-257-5679University of Kentucky *Fax: 859-257-4205 502 King Library South *Email: LHJENG00[at]uky.eduLexington, KY 40506-0039 *URL: http://www.uky.edu/~lhjeng00/
----------------------------------------------------------------------
[ALACOUN:10365] Re: ALA's lawyers & RIIA lawsuits?
Date: Tue, 16 Sep 2003 18:02:46 -0400
From: Skip Auld <auldh[at]co.chesterfield.va.us>
(Chesterfield County Public Library)
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: Carrie Russell <crussell[at]alawash.org>, Emily Sheketoff
<esheketoff[at]alawash.org>, Lynne Bradley <lbradley[at]alawash.org>,
Mary Costabile <mcostabile[at]alawash.org>, Miriam Nisbet <mnisbet[at]alawash.org>
Reply to: auldh[at]co.chesterfield.va.usALA Legislative Counsel Miriam Nisbet has clarified a couple of matters
relating to Jenner & Block's representation of ALA. With her
permission, I am forwarding some of our conversation below.Miriam Nisbet wrote (Tue, 16 Sep 2003):
> I don't know if we can say that J&B has never represented ALA in
> copyright matters. I can only speak to the time that I've been here
> (4 years). In that time the firm has not been asked to represent us
> in a copyright-related case. Miriam
>
> Skip Auld wrote (Mon, 15 Sep 2003):
> Miriam,
> I can forward your message to the Council list. Would it
> clarify further to indicate something along the following lines:
> Jenner & Block represented ALA in two major First Amendment cases but
> has never represented ALA in copyright cases or filings. The two
> First Amendment cases were the 1997 CDA case (Reno v. ACLU) and the
> recent CIPA case (ALA v. U.S.).
>
> Miriam Nisbet wrote( Mon, 15 Sep 2003):
>
> Skip: An important correction. Jenner & Block is NOT representing
> ALA in the amicus brief in the RIAA v. Verizon suit. ALA signed onto
> an amicus brief in that case, along with many other organizations,
> which was written primarily by the ACLU. Also, J&B hasn't represented
> ALA in any of our copyright-related filings, at least in the time that
> I've been with ALA (4 years). We have used other outside counsel to
> write our briefs or have been able to sign onto briefs written by
> other groups with similar views on the issues. Miriam> Miriam M. Nisbet
> Legislative Counsel
> American Library Association
> 1301 Pennsylvania Ave. NW - #403
> Washington, D.C. 20004-1701
> Voice: 202-628-8410, x. 202,> or 800-941-8478, x. 202 > Fax: 202-628-8419> e-mail: mnisbet[at]alawash.org
> http://www.ala.org/washoff
----------------------------------------------------------------------
[ALACOUN:10366] Re: ALA's lawyers & RIIA lawsuits?
Date: Tue, 16 Sep 2003 20:42:13 -0400 (GMT-04:00)
From: MCR <iskra[at]earthlink.net>
To: ALA Council List <alacoun[at]ala1.ala.org>
Cc: Carrie Russell <crussell[at]alawash.org>, Emily Sheketoff
<esheketoff[at]alawash.org>, Lynne Bradley <lbradley[at]alawash.org>, Mary
Costabile <mcostabile[at]alawash.org>, Miriam Nisbet <mnisbet[at]alawash.org>
Reply to: MCR <iskra[at]earthlink.net>OK Skip. Thanks.
Then revise my attempt to get it straight to say "Jenner & Block is and has
been representing ALA as its law firm." (that's how it has always been
characterized to us).It doesn't make much difference to this argument, because we are not taking
legal measures against them formally for conflict of interests. It is a
question of a client's justified lack of confidence in a firm that is
predominantly representing corporate interests, presently is representing
RIAA in a plethora of suits meant to intimidate the public into accepting
RIAA's position (which is contrary to ALA's), and which is pursuing a
ham-handed legal strategy in that matter which has made RIAA look to all
the world even more like the corporate bully it is.Maybe Elaine Harger's way of putting it is more correct than I initially
thought. They have a 'different philosophy' than ours in a whole area of
concern to librarians (intellectual property, "fair use", etc.). That
should be more than sufficient to tip the scales against them as far as the
ALA is concerned.Mark Rosenzweig
_________________________________________________________________________top
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