Slashdot Mirror

I suppose this is what happens when you appoint a half-dozen ex-RIAA attorneys to top spots in the Justice Department. President Obama assured us that rules were put into place to prevent this sort of activity, but apparently that doesn't matter. Not that I'm the least bit surprised by that. Frankly, I think the Justice Department should have better things to occupy their time than civil lawsuits. That kind of bias ought to be considered malfeasance in office, or something else worthy of immediate dismissal. 1.92 million dollars for copyright violations by an individual? Now that's Justice for you. Personally, I've never believed that the law should be used to make examples out of people, no matter how distasteful their crimes. That simply breeds more disrespect for the law, which is something the RIAA is apparently unable to understand. They will continue to reap the rewards of that lack of understanding, regardless of what ultimately happens to Jammie Thomas.

What really goes on at DOJ, I can't say, but I will point out the following:

1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.

2. The brief's arguments are not dissimilar to the arguments made by the Bush administration when they filed their brief on this issue (pdf) in 2007.

3. In the important Cartoon Networks v. CSC Holdings case, the Solicitor General filed a brief which directly contravened the positions the RIAA's lawyers had taken in that very case. (See Slashdot discussion.)

No, it was MediaSentry.

Read the deposition (pdf) if you don't believe me.

Interestingly, MediaDefender just bought MediaSentry from SafeNet.

Here is the testimony of MediaSentry's president in BMG v. Doe.

The document has only been linked 5 times in this discussion, is it really so hard to read it?

The answer is yes, it's the same stuff we all know has been happening, and they probably want it sealed so it doesn't interfere with other pending lawsuits.

Moderators -- please bother to check if a link is valid. That may change over time. That initial one has varied today from -1 troll to +5 , but all I see is a one-page pdf that says the doc is sealed. Which the summary already says. Maybe it used to contain the actual sealed document. But it doesn't now. All clicking on it will do is make people feel stupid. Not +5 material. BTW, I use foxit not adobe for pdf reading, in case that matters.

However, an actual copy of the petition appears on ilrweb:

            http://www.ilrweb.com/viewILRPDFfull.asp?filename=andersen_atlantic_080314SecondAmendedComplaint

The best reason I can see for the court sealing it is that it lays out the whole case for how the RIAA has been screwing innocent people out of thousands of dollars for years (we knew that), and that the federal courts have been stupid patsies in letting themselves totally be the tools by which this is accomplished (we knew that too). But maybe for the first time a courts sees it clearly enough to be as horribly embarassed as they should be.

No inside knowledge; just cynicism about our "check your conscience at the door, merciful judge just means activist judge, the prosecution can deliberately fake evidence without affecting a jury verdict so no retrial for you, Martha" federal judiciary. Covering its exposed, very ugly, ass.

Wouldn't it be great if the RICO statute allowed for damages against the stupid judges who helped make this "several thousand dollars per innocent person" shakedown possible?

But are there any plausible and non-nefarious explanations for this turn of events? I mean, is meeting with the defendant's attorneys privately, sealing the record of what went on there, and then sealing the plaintiff's motion a relatively normal thing? Or is it as weird and skeezy as it sounds?

Allow me to explain. It's like a child who has a new toy. The child must take the toy everywhere and show it to everyone and make the toy do everything it can to impress everyone. Similarly the RIAA has a new toy (the court) that they recently acquired ... and to show it off they have made it censor just about everything. Even briefs of motions for class action when you can find the full complaint in its entirety online.

Why? Because they can. Remember, they lost to her last year so they've got some face to save in this class action. Or at the least just keep it out of the eye of the public--don't want those sheep getting all uppity.

Unless, maybe, there is an organization who is out there putting out junk files so that we are not completely sure of what we are downloading...

You mean like these guys.

1. You're misusing the term "pirate". In copyright law parlance, a copyright pirate is someone who reproduces a large number of exact copies for resale and commercial gain. NONE of the RIAA cases against noncommercial users involve "piracy" or "pirates". See, e.g. US Dept of Justice brief (pdf) at page 4 and footnote 4 on page 5; see also decision of Judge Michael J. Davis at pp. 40-43.

2. These cases don't happen because there's something wrong with copyright law; they happen because the RIAA has been disregarding the law, and the judges have usually let them get away with it.

I wasn't lying; I just made the mistake of relying upon RIAA/Safenet/MediaSentry's court papers which refer to Safenet and say "formerly known as MediaSentry". In reexamining them, I note that in at least one of those documents (PDF) the phrase "formerly known as" could be read to be modifying Safenet, or it could be read to be modifying just "the MediaSentry product development unit of Safenet". So if it is so that MediaSentry was acquired by Safenet I apologize and stand corrected.

I think she has beaten you to it.
Third claim for relief: Abuse of legal process
From the document; "8.18 As detailed above and herein, the RIAA and the Record Companies pursued litigation against Plaintiff, and many processes attendant to that litigation (including the filing of an initial information-farming "John" and "Jane Doe" action to obtain subpoena power), not for purposes of protecting or vindicating the copyrights purportedly at issue, but instead for the primary unlawful purpose of intimidating Plaintiff and the general public in order to maintain and preserve as long as possible their monopolistic control over the world's market for the distribution of sound recordings."
IANAL though, so maybe I have it all wrong.

Nahhhh... my site wasn't down. Internet Law & Regulation, which hosts many of the *pdf litigation documents, was working on some problem with its servers. In the interim, I was taking the documents and hosting them on my own law firm web site. I'm delighted to report, by the way, that ILR straightened out its problem, and all the litigation documents are working fine now.

I don't understand how NewYorkCountryLawyer claims that the Exhibits (Cease & desist order, printouts) constitute 'irrefutable proof'.

Assuming he's referring to the lists of recordings found on that Boston U. IP address, I don't think Mediasentry would have to 'be' in Massachusetts to get those lists.
Whoever was making those files available was 'advertising' their availability to the whole world when he/she is on a P2P network, so Mediasentry
could conceivably never step foot in Massachusetts to obtain this data.

I'm in the West Coast, but I could easily get a listing for MP3 files available on publicly-accessible webservers on Boston U.'s network if I spent 10 minutes looking for them, and I wouldn't have to be a 'private investigator' in MA to get them After all, these 'precious snowflakes' are advertising that they have this stuff available to everyone.

HOLY COW, Bob9900..... you're 100% right. Yes I read the documents but I READ THEM WRONG, equating 2007 with 2008. I've published a correction. I apologize to all, and I am grateful to you for having brought it to my attention. The motion is based on past violations of the statute, not on violations of the cease and desist order. (However, I have been informed by a reliable source that MediaSentry has violated the cease and desist order, but do not, at this time, have documentation to back it up.)

MediaSentry was hired by the RIAA, not by MediaSentry. This was made clear in the declaration of the RIAA's Bradley Buckles in the UMG v. Lindor case.

The "irrefutable proof" is in the Exhibits (Cease & desist order, printouts) (pdf). Boy are you a lazy reader.

Rtfa!!!!! This is Kazaa, not bittorrent.

Check out
Exhibit B Part 1: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1
Exhibit B Part 2: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1

It's a bunch of screenshots of Kazaa showing a listing of files that was in her shared folder. Essentially the RIAA lawyers argued that by simply having the files in that directory she was inciting others to infringe on their copyrights. This concept is called the "make available" theory. The judge threw it out.

She gave the RIAA thirty days to make a new argument against this lady but to do so they have to show that she communicated with a 3rd party to 'offer to distribute' and that the intent in doing so was for "the purpose of further distribution".

Clearly, they have no way of obtaining this information because it most likely doesn't exist and because this is a civil case they have no way to obtain more evidence short of her giving them an instant messaging, E-mail, or phone transcript / recording with her saying "Hey, go on Kazaa, look up my name and download X, Y, and Z songs". In other words, they're screwed.

Now next time how about reading the god damn article!!!

Rtfa!!!!! This is Kazaa, not bittorrent.

Check out
Exhibit B Part 1: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1
Exhibit B Part 2: http://www.ilrweb.com/viewILRPDF.asp?filename=elektra_barker_complaintexBpt1

It's a bunch of screenshots of Kazaa showing a listing of files that was in her shared folder. Essentially the RIAA lawyers argued that by simply having the files in that directory she was inciting others to infringe on their copyrights. This concept is called the "make available" theory. The judge threw it out.

She gave the RIAA thirty days to make a new argument against this lady but to do so they have to show that she communicated with a 3rd party to 'offer to distribute' and that the intent in doing so was for "the purpose of further distribution".

Clearly, they have no way of obtaining this information because it most likely doesn't exist and because this is a civil case they have no way to obtain more evidence short of her giving them an instant messaging, E-mail, or phone transcript / recording with her saying "Hey, go on Kazaa, look up my name and download X, Y, and Z songs". In other words, they're screwed.

Now next time how about reading the god damn article!!!

7. This is absolutely critical. Most ISPs assign IP number through DHCP. The numbers are only leased for a short time. If the end-user's computer doesn't renew the lease (perhaps because it is shut off or the connection dropped) the number will be freed up and reassigned to someone else. The time (and timezone) at which the activity was recorded could impact who the IP number was supposed to be assigned to.

It is also critical that the system be synchronized regularly. Some systems will log when the clock is synchronized and record the amount of the adjustment. It's also important to note what the clock was synchronized with. Our nation's official time keeper is the U.S. Naval Observatory. They run an NTP server at tick.usno.navy.mil.

9. These are presumably the logs Dr. Jacobson analyzed to conclude no wireless adapter was used, so they should exist. The IP headers will tell you if loose source routing was used (one form of IP spoofing). There should be timestamps on the recorded packets which will tell you latency between MediaSentry and Ms. Lindor. If the latency is less than the speed of light (about 20ms from New York to California) then you know something fishy is going on. It will also give you an idea of what the transfer rate was. If it exceeds the service Ms. Lindor had subscribed to, you again know something is going on. Kazaa likely also includes a wealth of information in its layer of the protocol stack.

The logs may indicate many failed attempts to download files. If the infringer's machine was not able to respond to most download requests it would put an upper bound on damages.

You can set up your own test to prove that Dr. Jacobson's claim about wireless is bogus. Your own test would produce packets very similar to those from the logs.

11. Most software has bugs. Software that isn't exposed to the general public isn't tested as well and consequently has more bugs. It is virtually guaranteed any custom software MediaSentry developed has bugs in it. You need to determine if there were any bugs that would impact the claims MediaSentry is making.

13. If MediaSentry downloaded documents suggesting the machine belonged to someone else it would certainly be pertinent to the defense. Many a public figure has learned the hard way that Word documents record the user who created them. MP3 files contain IDT tags that can include arbitrary information (the actual information depends on the software that created the file). If the documents contain a name and that person uses the same DHCP server as Ms. Lindor it would be a huge red flag that the other person had a lease on the infringing IP number when the documents were downloaded.

16. 11 files in three seconds?? The logs from paragraph 9 would be interesting here.

27. As mentioned earlier the clocks are critical. If MediaSentry and Verizon were out of sync the IP number and all the evidence associated with it are meaningless as evidence.

Atlantic vs Dangler
http://www.ilrweb.com/viewILRPDFfull.asp?filename=atlantic_dangler_071023DecisionDenyDefaultJudgmentMotion

I am not sure how useful, but hopefully this ruling may be relevant.

I wish NYCL were here right now. I know he has all that stuff on his site... somewhere.

Here's what I was able to dig up:

* RIAA Lawsuits UMG v. Lindor Index
* April 12th report (this is the long one)
* Another one
* Original declaration (this was the first one, IIRC)
-----
* NYCL's index
* Deposition transcript

If NYCL shows up and contradicts me on any point, listen to him, not me. He's MUCH better than I am at keeping track of all these crazy lawsuits.

- I Don't Believe in Imaginary Property

In a completely OT note, if someone posts this before me, it's because I have to wait an hour or more between posts. This is one of the few things I regret about submitting without an account.

I wish NYCL were here right now. I know he has all that stuff on his site... somewhere.

Here's what I was able to dig up:

* RIAA Lawsuits UMG v. Lindor Index
* April 12th report (this is the long one)
* Another one
* Original declaration (this was the first one, IIRC)
-----
* NYCL's index
* Deposition transcript

If NYCL shows up and contradicts me on any point, listen to him, not me. He's MUCH better than I am at keeping track of all these crazy lawsuits.

- I Don't Believe in Imaginary Property

In a completely OT note, if someone posts this before me, it's because I have to wait an hour or more between posts. This is one of the few things I regret about submitting without an account.

I wish NYCL were here right now. I know he has all that stuff on his site... somewhere.

Here's what I was able to dig up:

* RIAA Lawsuits UMG v. Lindor Index
* April 12th report (this is the long one)
* Another one
* Original declaration (this was the first one, IIRC)
-----
* NYCL's index
* Deposition transcript

If NYCL shows up and contradicts me on any point, listen to him, not me. He's MUCH better than I am at keeping track of all these crazy lawsuits.

- I Don't Believe in Imaginary Property

In a completely OT note, if someone posts this before me, it's because I have to wait an hour or more between posts. This is one of the few things I regret about submitting without an account.

The report's linked in the article, but if you didn't see it, it's here. Send it off to 'em yourself. ;-p

The judge decides whether or not he will grant the motion. Of course, even if he grants the motion the defendant's counterclaims will remain.

For those wondering why the RIAA dropped this case, it's largely because they wanted to avoid any case law on this motion which asked the Plaintiff to actually provide a detailed listing of the infringing songs AND (this is very important) a breakdown of "infringement expenses" for each individual song. The record companies don't HAVE this information, they pull the numbers out of their ass. If they're forced to actually PROVE losses, they have no case and they know it.

Well according to procedures, that is how it is supposed to be. If 200 people have wronged you, you can bring 200 lawsuits if the people had nothing to do with each other. It is a lot cheaper for the RIAA to file for one lawsuit and tack on 200 John Does. And this is not the first time the RIAA has been told not to lump all the defendants together. A federal court told the RIAA in Fonovisa vs Does 1-41 (2004) that they may not file all unrelated John Does together.

Why is it good to hold to the explicit text of the law? Because, as the EFF pointed out if you expand the definition of "distribute", people can start trying to attack other people for copyright infringement even when they did not actually distribute material. If a search engine makes a list of sites based on some request, and one of those sites it lists has copyrighted material on it, is the search engine owner infringing copyright because they "made the material available"? Well, no, because there is a legal meaning of "distribute" which means only the person actually participating in the transfer of material is distributing it. Is it good to hold to this legal meaning? Hell yes.

Here's an interesting quote from one of the legal briefs in the case:

"Once Defendant converted Plaintiffs' recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs" [Supplemental Brief, page 15, lines 16-18, emphasis added].

The phrasing that they used seems to indicate that the MP3 files were authorized until they were placed into the shared folder. Now, I'm not a lawyer, so it's possible that this means absolutely nothing, but it's still an interesting notion.

What it seems that they are saying is that the MP3's are authorized until used for an illegal purpose (i.e. file-sharing). Amazon's MP3 Music Service TOS seems to support this interpretation. It encourages users to make backup copies of MP3's they purchase (which would be authorized); and, if you violate any of the terms (such as infringing upon the copyright of the MP3), your license to use the music terminates, making the MP3 unauthorized. While the music in this case wasn't purchased from Amazon, it seems like the same philosophy is involved.

Details further in the brief support that concept as well. The brief infers that the copies became unauthorized at the moment the MP3 files were copied into the shared folder on the guy's computer.

Once Defendant converted Plaintiffs' recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs." [Supplemental brief, page 15, lines 16-18, emphasis added].

Realistically, all of this uproar over the RIAA's "argument" that ripping CD's is illegal is overkill. MusicUnited.org, of which the RIAA is a sponsor (check the links at the bottom of the page), makes it clear that while you might not have the right to rip the music from your CD, you're not going to cause any issues for yourself by making a "personal copy" (please note that I used the word "might" -- I'm not arguing if that right exists or not. I'm not a legal expert, and, in all honesty, it makes no difference in context). Link (See section on "Copying CDs" at the bottom of the page).

This argument isn't unreasonable. The RIAA is basically claiming that the MP3 became unauthorized once it was used for an illegal purpose (file-sharing). I don't see any problem with that. With regards to the AHRA (this is all covered in the Wikipedia article, but in summary), the issue is if a program used to rip CDs qualifies as a "digital audio recording device."

The Fair Use argument was negated when he shared them on KaZaA - RTFA, and look at page 15 that is even mentioned in the summary.
But let me point out what I believe ruins the Fair Use argument (IANAL):
Once Defendant converted Plaintiffs' recording into the compressed .mp3 format and they are in his shared folder, they are no longer the authorized copies distributed by Plaintiffs. Moreover, Defendant had no authorization to distribute Plaintiffs' copyrighted recordings from his KaZaA shared folder. Each of the 11 sound recordings on Exhibit A to Plaintiffs' Complaint were stored in the .mp3 format in the shared folder on Defendant's computer hard drive, and each of these eleven files were actually disseminated from Defendant's computer.

I hate the RIAA as much as anyone, I think they are a bunch of scumbags. But people need to realize that this is not simply a case of someone ripping CDs for their own personal use; according to the supplemental brief (pdf) (see page 12,13 etc), the guy apparently was using KazAa and had the files into the shared directory. Now I am not making any judgement on the legality or morality of doing this; it's simply worth noting that this is not a simple case of "now it's illegal to even rip your own CDs (SHOCK! HORROR!)". This is more a case of the same-old, same-old RIAA going after someone who seemed to be sharing the files over a peer-to-peer network. I know the article quotes them as saying scary and insane stuff about it not being legal to even make copies of your own CDs, but didn't the Audio Home Recording Act take care of making copies for your own use a while back? I think it's pretty easy to convince any jury that making copies of CDs and distributing them over the internet is "wrong", but they'd have a hard time convincing any sane person that ripping mp3 versions of your own, legally purchased CDs, for your own use, is in any wrong.

Is it just me or is there a ridiculous number of exhibits and motions in this Lindor case? I count 239 links on Ray's blog just for this one case. I noticed this link from December 14, 2006--a year ago--in which the plaintiffs appear to be stalling on this very issue. The letter makes reference to a hearing from August of 2006. Has this one issue really been going on that long?

If you read the pdf link to the decision, it is noted on page 4 at the bottom that there will still be a further hearing. It is here that the RIAA will get a chance to substantiate its claims.

However I will say it is good that the judge actually read the arguments and understood that the RIAA did not provide the evidence.

Link to actual motion shamelessly copied from Mr. Beckerman, more background info and the 14th Amendment. Links further indicating parent is quite correct and for the curious.

more

She acts as a witness as well.

I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.

The RIAA is relying on an alleged infringement of the "distribution" right.

But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief (pdf), esp. pages 3-4.

This is very interesting. Independent of the RIAA case, it seems to open a whole can of worms for copyright holders generally.

Example: I wonder why this wasn't brought up in the case of Share a News Story With Coworkers, Pay a Fine where a company settled for $300,000 for distributing news articles internally to employees.

Another (hypothetical) example: internally distributing copies of Microsoft Office to employees is certainly making them available to a limited group and not to the public at large. What is the catch? The EULA wouldn't seem to apply since it is only agreed to after the program is run, not when it is distributed before ever running it.