Slashdot Mirror

Dear Alter_Fritz:

Thanks for your suggestions.

I think Richard truncated my blog post where he did (compare this with this) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation, which is a very important legal publisher.

I think it was much more important, in my response, to call attention to the decision of the Amsterdam Court of Appeals, affirming the District Court decision and agreeing with the report of Prof. Sips and Dr. Pouwelse, than to sink to Richard's level and waste the Magistrate's time with a debate over the merits of my humble blog.

Don't you?

Dear Alter_Fritz:

Thanks for your suggestions.

I think Richard truncated my blog post where he did (compare this with this) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation, which is a very important legal publisher.

I think it was much more important, in my response, to call attention to the decision of the Amsterdam Court of Appeals, affirming the District Court decision and agreeing with the report of Prof. Sips and Dr. Pouwelse, than to sink to Richard's level and waste the Magistrate's time with a debate over the merits of my humble blog.

Don't you?

Dear Alter_Fritz:

Thanks for your suggestions.

I think Richard truncated my blog post where he did (compare this with this) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation, which is a very important legal publisher.

I think it was much more important, in my response, to call attention to the decision of the Amsterdam Court of Appeals, affirming the District Court decision and agreeing with the report of Prof. Sips and Dr. Pouwelse, than to sink to Richard's level and waste the Magistrate's time with a debate over the merits of my humble blog.

Don't you?

Dear Alter_Fritz:

Thanks for your suggestions.

I think Richard truncated my blog post where he did (compare this with this) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation, which is a very important legal publisher.

I think it was much more important, in my response, to call attention to the decision of the Amsterdam Court of Appeals, affirming the District Court decision and agreeing with the report of Prof. Sips and Dr. Pouwelse, than to sink to Richard's level and waste the Magistrate's time with a debate over the merits of my humble blog.

Don't you?

Dear Alter_Fritz:

Thanks for your suggestions.

I think Richard truncated my blog post where he did (compare this with this) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation, which is a very important legal publisher.

I think it was much more important, in my response, to call attention to the decision of the Amsterdam Court of Appeals, affirming the District Court decision and agreeing with the report of Prof. Sips and Dr. Pouwelse, than to sink to Richard's level and waste the Magistrate's time with a debate over the merits of my humble blog.

Don't you?

Since the New York bar exam is offered only in Elglish it is also possible, even likely, that the submitter not only understands English but is one of the one people who does not have to type IANAL in every response he makes on this topic because he actually is a lawyer who actually participates in the defense of people sued by the RIAA.

And it is possible that you, an imbecile, misunderstand the RIAA's assertion. Maybe if you read this you will discover that the RIAA asserted that AOL confirmed that the defendant was the owner of an account through which copyrighted material was downloaded and distributed. While that assertion does indeed have two parts as you suggest the language is quite plain in attempting to indicate that AOL confirms both parts. Since the AOL letter indeed does not confirm both parts, only (1), the assertion is false.

This is a question of timeservers and use of mac addresses.

Nope, this is a question of what is supplied by AOL.

If AOL doesn't have an effective timeserver and/or doesn't have the customer's mac address in the appropriate record it should be thrown out.

How do you know after the fact if the timeserver was right? And there aren't mac addresses. Do you seriously think this was thrown out? Take look at the letter from AOL. For the non-redacted entry, it has:

"IP" on "date" at "time" is: customer name, customer address

Looks official and pretty hard to argue with when you don't have any evidence to dispute it. And it is probably mostly right, most of the time.

Of all the things AOL screws up, I don't think their lawyers would let them get away with botching this

If their techies can't get it right, you think their lawyers would have a better understanding? The problem is that there isn't a way for the defendant to prove that AOL made a mistake.

if I was on the defense though I would definitely bring it up.

I would hope so, but I doubt it would make much an impression on the court.

Exact wording from November 1st letter to the judge:

"Defendant's Internet Service Provider, America Online Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffs' sound recordings were downloaded and distributed to the public without Plaintiff's consent. Defendant does not dispute this fact."

Lawyers love to use long sentences that can be interpreted in multiple ways. The above actually contains several "facts" lumped together.
1) "Defendant's Internet Service Provider, America Online Inc., has confirmed that Defendant was the owner of the internet access account "
2) "the internet access account through which hundreds of ... sound recordings were downloaded"
3) "the internet access account through which hundreds of ... sound recordings were ... distributed"

Number 1) is substantiated by the AOL letter, assuming that one accepts that having an IP assigned for a set time period (i.e. a few hours) to an account holder is equivalent to owning the internet access account in question. I doubt that number 2 can be proved, unless the screenshot giving the IP address actually showed the files being downloaded. The defendent could just as easily have uploaded them to her computer from CDs. Number 3 is a pretty straight-forward claim; however, it is not substantiated by AOL's letter.

Of course, the way the sentence is structured, all three claims are lumped together so that the sentence can be construed to mean that either the AOL letter confirms just the account ownership or that it confirms ownership AND downloading AND distributing. Such a sentence structure lets them give the wrong impression to the judge without saying anything that can be proven to be false (at worst, it can shown to be ambiguous). This gives an easy win if the Judge misunderstands and still allows them to claim that they didn't lie if they are caught-only that the sentence was misunderstood.

To top it off, the second sentence quoted above is a claim by the RIAA which basically says the defendant hasn't already said something contradicting the claim in the previous sentence (notice they say claim, not claims). This is bogus because they could claim that the lady committed murder and hasn't disputed it (which would technically be true until the defense hears the claim and can say how absurd it is!) Of course the lady's attorney disputed the misunderstood claim pretty much as soon as they got a hold of the AOL letter (that is what the article is about).

I suppose if the judge gets pissed, he can chew out the plaintiffs for sloppy writing and maybe even censure them for making misrepresentations, but not perjury.

Kinda funny though, how the article doesn't mention that the lady has a teenage daughter with friends who used the computer ...
(see counterclaim 27 at http://www.ilrweb.com/viewILRPDF.asp?filename=elek tra_schwartz_061028anscounterclaim)

Here is what the RIAA lawyer wrote in his letter

Defendant's October 28, 2006 letter also provides no basis for a motion for summary judgment. Defendant's Internet Service Provider, America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffs' sound recordings were downloaded and distributed to the public without Plaintiffs' consent.

AOL confirmed that the Defendant was the owner of the account. The rest of the sentence describes the account and is not a statement that AOL confirmed what the account was being used for.

This should be fairly obvious to most people who can read English.

It's too bad the lawyers for the defendant called the ISP "American Online" on page 2. I'm sure they're technical savvy guys, but really.... "American Online" ?

As to P2P filesharing, I'd take the probably here unpopular view that it is a plain violation of the rights of the artists and/or recording companies. That notwithstanding, I'm surprised that the complaint is even arguably sufficient. The sole paragraph that identifies the acts the defendant allegedly committed seems to me to lack sufficient specifics. That makes it all the more surprising that the RIAA would be correct, if it is when it argues that in three previous cases these specific allegations have been found to survive a motion to dismiss. http://www.ilrweb.com/viewILRPDF.asp?filename=elek tra_barker_oppositiontomotion - see pages 8-9. If the pleading standard is as "liberal" as the RIAA says it is, it ought not be. That having been said, it seems to me silly that this is the level at which these cases are argued. If the defendant was file sharing, the RIAA should come forth with specific allegations...and then the case can quickly get to the substance, rather than spend time - and presumably both sides' money - on procedural irrelevancy. The obvious cure to the motion to dismiss, if the RIAA has facts to back their case, is an amended complaint with more specifics. Sorry if that's less technically and more legally based than normal here.

Thank you for the explanation. I appreciate your taking the time to do so.

Of course neither I, nor any other lawyer, would engage a technical expert to challenge facts which are absolutely true.

In a minority of the cases, the defendant is actually someone who engaged in peer to peer file sharing. Those defendants have other defenses, which the lawyers can handle, and which probably would not involve technical advice at all... defenses such as the RIAA's own misconduct, defenses such as the due process implications in the damages theory, etc. As to those defendants, however, it would still be nice to receive financial support for their legal defense, nice to receive support of people writing to their congresspeople to change the laws, etc.

In a majority of the cases, the defendants are innocent of what they are being accused of. In those cases the need for technical help is great.

You seem skeptical of my telling you that MOST defendants are innocent, and challenge my knowledge of all 20,000 cases. Of course I'm not familiar with all 20,000 cases; my conclusion is tentative, and it is anecdotal, based only upon a year and a half of being immersed in this issue, and speaking to people from all over the country every day about it. However, if you have taken the time to familiarize yourself with the flimsiness of the RIAA's so called "investigaton" (and I'm betting you have), you already know that (a) no real pirate would ever be so stupid as to use his own internet access and leave intact metadata identifying the pirated files, (b) the RIAA has no actual evidence of any downloading, (c) the RIAA has no actual evidence of any uploading, and (d) the RIAA knows nothing about the defendant except that he or she paid for an internet access account which the RIAA has linked to the shared files folder. The RIAA admitted on national television, on December 28, 2005, in Cary Sherman's response to my remarks on the CBS Early Morning Show with Harry Smith, that the only thing they know about the person they've sued is that that is the person who paid for the internet access account. So it should come as no surprise to you that the majority of the defendants are innocent. And whether it's a majority or a minority, should be irrelevant. What is relevant is that there are many innocent people being targeted, and they need the help of the tech community.

For discussion of the RIAA's "driftnet" strategy I commend you to the ACLU, EFF, Public Citizen, AALL, and ACLU-OK Brief in Capitol v. Foster, and for a discussion of the RIAA's attempt to expand the copyright law to make mere 'making available' a copyright infringement, and the damaging effect that would have on internet technology, see Brief of US Internet Industry Association and Computer & Communications Industry Association in Elektra v. Barker.

Yeah you're missing some steps.

The ISP knows the person's name and address. The RIAA could ask the judge for an order directing the ISP to give the person notice that the RIAA is seeking an order to get his or her name and address. Instead they go ahead and get the order first, and then ask the ISP to give notice of an order that's already been granted, and with no information about the basis for the order, the basis for the suit, the Court's rules, etc., so that once the victim gets the 'notice' he doesn't know what to do with it, because there's just about nothing he can do with it. See How the RIAA Litigation Process Works.

You've taken another big leap when you say that the person whose name and address is turned over by the ISP has 'harmed' the record labels in some way. They have no clue about that. They just go ahead and sue. Sure that person would be a good person with which to start an investigaton into whether there's someone out there infringing the RIAA sound recording copyrights. But there's no justification for just going ahead and suing that person. See Brief of EFF, ACLU, Public Citizen, AALL, and ACLU-OK and Brief of Communications & Computer Industry Association and US Internet Industry Association.

Yeah you're missing some steps.

The ISP knows the person's name and address. The RIAA could ask the judge for an order directing the ISP to give the person notice that the RIAA is seeking an order to get his or her name and address. Instead they go ahead and get the order first, and then ask the ISP to give notice of an order that's already been granted, and with no information about the basis for the order, the basis for the suit, the Court's rules, etc., so that once the victim gets the 'notice' he doesn't know what to do with it, because there's just about nothing he can do with it. See How the RIAA Litigation Process Works.

You've taken another big leap when you say that the person whose name and address is turned over by the ISP has 'harmed' the record labels in some way. They have no clue about that. They just go ahead and sue. Sure that person would be a good person with which to start an investigaton into whether there's someone out there infringing the RIAA sound recording copyrights. But there's no justification for just going ahead and suing that person. See Brief of EFF, ACLU, Public Citizen, AALL, and ACLU-OK and Brief of Communications & Computer Industry Association and US Internet Industry Association.

If you read the record carefully you will see that we offered to withdraw the counterclaim if the RIAA could show us legal authority for their position that the counterclaim was improper, specifically saying to them "I certainly wouldn't want to get into motion practice over a mere formality." They could find no such authority, and never even got back to us, but simply went ahead with their motion. That sounds like frivolous litigation to me.

As to your comment that we should have made a Rule 11 motion, that can be done at any time in the case, and one that may not be necessary, since the Copyright Act gives Ms. Schwartz a right to attorneys fees, on a much lesser showing than would be needed under Rule 11. Rule 11 motions should never be undertaken lightly.

If you're really a first year law student, please don't -- when you get out there -- practice law like these guys do.

The EFF/ACLU/Public Citizen brief attached to the counterclaim makes it pretty clear why so many innocent and helpless people are being caught up in the RIAA's "driftnet". It's certainly reckless enough to be equated with "deliberate".

I'm still trying to work out the story here. The submission appears to be saying that the RIAA doesn't like being countersued.

1. It's all 4 majors. UMG no more or less than the others.

2. I don't know how they bubble up... I just know that they are targeting the wrong people.

3. It's the RIAA's lawyers, not UMG's lawyers, who are involved, and it's not the lawyers that are controlling it, it's the RIAA. The lawyers on this case are attack dogs. They attack who they're told to attack, and don't stand up to their clients at all. Good lawyers don't just follow orders. These lawyers just follow orders. I don't know how they live with themselves, suing children, disabled people, people who never used computers, people on welfare, students. It's unbelievable.

4. What do they think they're accomplishing? I'm sure it's not the revenue stream; they lose money on litigated cases; they lose money on default judgments; and they make a little money on the settlements, just enough to cover the costs of their campaign. I'm convinced that their actual goal is something they don't mention publicly -- to try to monopolize the online digital music field. (See, e.g. counterclaims in Arista v. LimeWire. I don't think they will accomplish their goal, and I think that their litigation campaign is actually increasing, rather than diminishing, their competition, as they've succeeded in creating a whole new breed of music consumer -- those specifically looking for non-RIAA music. See my growing list of sources for non-RIAA music, which I call Liberated Music.

I think every university and law school that operates a legal clinic should be in the business of defending RIAA suits against poor and working class people, for the reasons enunciated by the ACLU, Public Citizen, Electronic Frontier Foundation and others. See http://www.ilrweb.com/viewILRPDF.asp?filename=capi tol_foster_amicus and, for an example of a law student's contribution, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id =660601 (whole Note available on Westlaw).

Dear Captain:

I don't consider, and I'm sure you don't consider, the United States Court of Appeals for the Second Circuit to be a radical lunatic fringe. See Parker v. Time Warner Entertainment Co., 331 F. 3d 13, 22 (2d Cir. 2003), cited in our brief at page 4.

And I find the reasoning of In re Napster and of the law review articles cited in our reply memorandum, as to why Parker should be applicable to aggregation of statutory copyright damages in p2p file sharing cases, to be most compelling.

Neither do I find Judge Trager to be a radical lunatic fringe, nor do I for a moment think he would have permitted us to add issues to the case which he had already resolved to be futile.

Nor is your assumption correct that we are asking the Court to find the statute unconstitutional. We are asking the Court to find the RIAA's absurd interpretation of the statute to be unconstitutional. I have total confidence that the Court can find a way to interpret the statute in a way that would not lead to an unconstitutional result in these p2p file sharing cases.... I personally can think of a number of such interpretations.

The judge's decision signals to you that he is aware of that important distinction, because on the subject of Attorney General notification, he indicates in so many words that he will notify the Attorney General if and when he feels we're asking for the statute to be struck down.

Dear Captain:

I don't consider, and I'm sure you don't consider, the United States Court of Appeals for the Second Circuit to be a radical lunatic fringe. See Parker v. Time Warner Entertainment Co., 331 F. 3d 13, 22 (2d Cir. 2003), cited in our brief at page 4.

And I find the reasoning of In re Napster and of the law review articles cited in our reply memorandum, as to why Parker should be applicable to aggregation of statutory copyright damages in p2p file sharing cases, to be most compelling.

Neither do I find Judge Trager to be a radical lunatic fringe, nor do I for a moment think he would have permitted us to add issues to the case which he had already resolved to be futile.

Nor is your assumption correct that we are asking the Court to find the statute unconstitutional. We are asking the Court to find the RIAA's absurd interpretation of the statute to be unconstitutional. I have total confidence that the Court can find a way to interpret the statute in a way that would not lead to an unconstitutional result in these p2p file sharing cases.... I personally can think of a number of such interpretations.

The judge's decision signals to you that he is aware of that important distinction, because on the subject of Attorney General notification, he indicates in so many words that he will notify the Attorney General if and when he feels we're asking for the statute to be struck down.

I am the author of the blog post that the article references. My blog is basically limited to reporting on factual legal events. The only known public fact is that the RIAA withdrew its case in the face of Mr. Wilke's motion for summary judgment. What more can I do than give you the known facts?

I could speculate but that is not the style of my blog, and it is not its function. Its function is to give hard information about what is going on in the litigation wars with the RIAA. Also it provides resources to help people who are defending themselves and to lawyers who are defending clients.

You are right that the known facts raise more questions than they answer. The stipulation of dismissal that was filed is clearly a form document and does not tell the whole story. What really happened? Did Mr. Wilke pay the RIAA anything? Did the RIAA have to pay Mr. Wilke anything? Who knows? There is probably a confidential settlement agreement that neither side is permitted to talk about.

I specifically asked Mr. Wilke's lawyer point blank whether any money had changed hands.

In response she gave me what was obviously a scripted, agreed response "Plaintiffs, the RIAA, and SBC worked cooperatively and amicably to resolve this dispute."

I'm sorry you're frustrated but I don't think your criticism of my article is fair. It is a "real article". I am not "just some web-blogger who heard something from a torrent site". I got the information directly from Mr. Wilke's attorney and from the filed court documents. (PS I don't even know what a torrent site is).

The reference to Slashdot for discussion is that sometimes, if there is a lot of discussion going on about my post on the internet, I sometimes add links to some of the more interesting discussions for people who want to pursue "commentary and discussion".

Class action lawsuits against RIAA actions have never taken place, as far as I know. No lawyer in his right mind would be willing to take on The US Attorney General's Office, who have been not only allowing, but backing, the RIAA's actions. RIAA lobbyists have been quite effective in swaying legal interpretation to their favour - it's no longer about copyright law, it seems. http://www.ilrweb.com/viewILRPDFfull.asp?filename= elektra_barker_usstatement Pretty dry reading, but it does show that the US AG has gone on record and expressed their stance. Note as well that the Wilke case was dropped "with prejudice", which basically states that although the RIAA is agreeing to not chase this case any further, they still "believe" he is guilty and reserve the right to sue him under the same charges again. Definitely not a win for Wilke. They do this in every case they drop. Basically means that they have never lost a case, and they use this as precedent in subsequent cases. Point being, you'd be initiating a suit against the RIAA's proven legal machine, as well as bringing the integrity of the US Attorney General's Office into question as well. Good luck!

Correct. See Gary Millin deposition testimony at pages 2-4 of Reply Memorandum of Law, where he admitted making bogus files that looked like song files, and littering the internet with them. He admitted that the only way to tell if it was a real song file was to listen to it from beginning to end.

Yes they do flood the internet with junk files which look like song files but aren't. The only way to tell if it's a real song file is to listen to it from beginning to end. See Reply Memorandum of Law at pages 2-4. As you can see from the deposition testimony excerpted there, the company that 'investigates' for the lawsuits and the company that floods the internet with junk pseudo-song files is the same company.

The RIAA is attempting to expand the copyright law. If they succeed the rulings will apply to a lot more than music files. For explanation of consequences of court's acceptance of RIAA's "making available" argument, for instance, see amicus curiae brief in Elektra v. Barker.

They don't. Limewire has been sued. http://www.ilrweb.com/viewILRPDF.asp?filename=aris ta_limewire_complaint

As some readers have pointed out, the PDF file cited is the wrong one. It was one of the papers in the Motown v. Nelson case, in Michigan, where a 15 year old witness testified to the RIAA lawyer's attempting to get her to say things that weren't so. The SONY v. Arellanes documents are here and the documents served by Ms. Arellanes objecting to the RIAA's insistence on their own expert are here, here, and here.

As some readers have pointed out, the PDF file cited is the wrong one. It was one of the papers in the Motown v. Nelson case, in Michigan, where a 15 year old witness testified to the RIAA lawyer's attempting to get her to say things that weren't so. The SONY v. Arellanes documents are here and the documents served by Ms. Arellanes objecting to the RIAA's insistence on their own expert are here, here, and here.

As some readers have pointed out, the PDF file cited is the wrong one. It was one of the papers in the Motown v. Nelson case, in Michigan, where a 15 year old witness testified to the RIAA lawyer's attempting to get her to say things that weren't so. The SONY v. Arellanes documents are here and the documents served by Ms. Arellanes objecting to the RIAA's insistence on their own expert are here, here, and here.

"As one might expect, Arellanes isn't too keen (PDF) on the idea of...

Frankly, I didn't see ANY evidence in the court's decision that SHE did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.

"They found out she was downloading copyrighted material (which is currently illegal) and sent out a court order to have her HDD seized, etc."

These assumptions on your part are not accurate, and may be the result of having read fifth hand accounts of the court's decision, instead of the decision itself.

In fact they did not find out about any downloading, on her part or anyone else's. All they knew is that a computer linked to her account had copyrighted files on it which were in a shared files folder that the RIAA was able to access one day through iMesh. They did not know if the files were obtained legally or illegally. They did not know if anything was done with them which was illegal. The judge even noted that the RIAA's own evidence was "scant and piecemeal".

Neither did they get a court order seizing anything. A lawsuit was commenced. As part of the pretrial discovery process, the RIAA sought, and obtained, an order directing the defendant to permit plaintiff to make a mirror image of her hard drive.

In his decision the judge expressed anger that defendant had used a defragmentation utility subsequent to the Court's order, and prior to the mirror imaging.

It is not clear to me when the judge is talking about "wiping" and when he is talking about "defragmenting".

I wonder if the programmers out there can help me on that one.

Are you folks clear that the judge was talking about wiping vs. defragmenting? Here's the actual decision.

RIAA is also blaming the children. The legal document cliams that Mr. Scantlebury did not respond to the allegations. Yet, he *did* somehow indicate that others were involved.

I'm no legal scholar, but I'm sure hearsay on the part of opposing counsel is not admissible. RIAA laywers want to make a case based on the words of a dead defendant. This can't succeed.

From the legal document: http://www.ilrweb.com/viewILRPDF.asp?filename=warn er_scantlebury_motion

2. Prior to Mr. Scantlebury's passing, Plaintiffs believed that there was potential to resolve the case. While at the time of Mr. Scantlebury's death, he had not responded to Plaintiffs' discovery (he had asked for and received extensions), he had indicated that others, in addition to Mr. Scantlebury, were involved in the infringement of Plaintiffs' copyrights.

Also I love how the word "grieve" is in inverted commas, as if the OP questions on whether or not the children will actually grieve.

Plaintiffs therefore request a stay of 60 days to allow the family additional time to grieve.

Here are two alternate links to the actual version submitted to the Court: http://www.ilrweb.com/viewILRPDF.asp?filename=capi tol_foster_amicus at Internet Law & Regulation or http://www.eff.org/legal/cases/Capitol_v_Foster/am icus_in_support_of_fees.pdf at Electronic Frontier Foundation.

Here are two alternate links to the actual version submitted to the Court: http://www.ilrweb.com/viewILRPDF.asp?filename=capi tol_foster_amicus at Internet Law & Regulation or http://www.eff.org/legal/cases/Capitol_v_Foster/am icus_in_support_of_fees.pdf at Electronic Frontier Foundation.