Tuesday, February 3, 2009

Techdirt misstates RIAA position on lawsuits; shifts on Pariser testimony

Techdirt, the copyleft group blog, seems unwilling to let the facts get in the way of an opportunity to bash the RIAA. Today's example comes in a post on the appointment of Jennifer Pariser as the trade group's new top litigator. Techdirt writes that the news:
is at first interesting given that the RIAA claimed it was giving up on litigation.
But that is false, a classic straw-man. The RIAA never claimed that it was "giving up on litigation" (and Techdirt cites no evidence of such a claim). Rather, as the WSJ article that broke the story made clear, the RIAA simply announced that the record labels were winding down their "mass suits" (it's right in the headline) against individual p2p infringers. The article also specified that the labels were not even completely stopping all such lawsuits; they were "reserving the right to sue people who are particularly heavy file sharers," and said that the RIAA expected the lawsuits not to completely stop, but merely "to decline to a trickle."

Also, the WSJ article said nothing about the record labels' other litigation, i.e., suits where the defendants are not individual accused p2p users. There are several major such suits pending, including litigation against Usenet.com and Limewire, LLC (summary judgment briefs here). The labels have made no announcement that they will stop suing such infringement facilitators and inducers. Which again disproves Techdirt's false statement that "the RIAA claimed it was giving up on litigation."

Techdirt also cites Pariser's testimony at the 2007 Jammie Thomas trial in Minnesota and claims that "she was caught outright lying on the stand" because she was "claiming that making a single copy of a song from a CD for personal use is 'stealing.'"(Techdirt's words). (See page 130 of this transcript for the context of Pariser's testimony.) After Pariser's testimony, RIAA President Cary Sherman said,
It turns out that she had misheard the question. She thought that this was a question about illegal downloading when it was actually a question about ripping CDs. That is not the position of Sony BMG. That is not the position of that spokesperson. That is not the position of the industry.
And Techdirt accepted (at least "somewhat") that explanation, saying:
This actually is somewhat believable, as the industry does believe that downloading a single copy is the equivalent of "stealing just one copy," (even if that's questionable in itself).
But now Techdirt says that Pariser was "outright lying" -- which is a far cry from giving a question based on a "misheard" question. Techdirt leaves its abrupt shift unexplained. (And Techdirt falsely states Pariser testified as an "expert" witness at the Thomas trial; actually, she was testifying as a percipient witness, not an expert.)

As long as we're discussing who "lied" at the Thomas trial, let's keep in mind what the jurors themselves thought. From a Wired post-trial story:

During a 45-minute telephone interview, [juror Michael] Hegg said jurors found that Thomas' defense -- that she was the victim of a spoof -- was unbelievable.

"She should have settled out of court for a few thousand dollars," Hegg said. "Spoofing? We're thinking, 'Oh my God, you got to be kidding.' "

"She's a liar," added Hegg, who just returned home following his 14-hour night shift [as a steelworker].

No "mishearing" there.


  1. Alter_Fritz: thank you for pointing out the incorrect link (now corrected), but I will not publish your comments if you engage in name-calling and other forms of ad hominem attacks.

  2. As has been pointed out elsewhere, Mr. Sherman's explanation that Ms. Pariser misheard the question is far-fetched. Ms. Pariser was answering questions from Richard Gabriel, the plaintiff's lead attorney, testimony that was rehearsed.

    I am wondering if Ms. Pariser informed the court that the testimony she gave under oath was incorrect.

    And why is it that the record companies/RIAA hire only people that seem to specialize in PR debacles (Pariser, Oppenheim, Gabriel, etc.)? You would think that they could find some competent counsel that knows how to pick their battles. Witness their battle against courtroom recording in the Tenenbaum case - who the heck thought this would be a good idea?

  3. Ben, I'm really confused. For someone who seems to be such a stickler for details, why do you continue to insist on calling us a "copyleft" blog?

    I find it amusing that you'll pick on the most meaningless of semantics in trying to avoid actually responding to key issues, but when called on doing the same thing yourself... you have no problem engaging in mindless name calling.

    We are not a copyleft blog. I don't even know what that means. And I would appreciate that if you are going to nitpick instead of addressing the issues that you at least get your nitpicking correct.

  4. "Meaningless...semantics"? "Nitpick[ing]"? I strongly disagree. I think it's a primary obligation of anyone who writes for a public audience -- whether in a legal brief, a newspaper article, or a blog post -- to get his facts right. I have observed that Techdirt's posts regularly fail to do that, and I'll continue to point it out. Yes, I'm a "stickler for details," and I don't apologize for it.

    I've previously explained what "copyleft" means, and why it's a perfectly fitting label for Techdirt. It's a term that many, particularly in the entertainment industry, use to refer to the broad social/legal/academic/political movement that believes copyright law is too strong, and is critical of copyright owners' efforts to enforce their rights. It's roughly equivalent to "free culture movement," but, I think, pithier and more accurately descriptive. I am hardly the first to use the term; here are a few examples among many:





Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.