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I was thinking of you when I read the RIAA's responses to our second set of interrogatories the other day in UMG v. Lindor.

They made a big point of saying that the copies they downloaded from defendant's computer were "perfect digital copies". See "Preclusion Motion Filed in UMG v. Lindor; Lindor Says RIAA Cannot Introduce Songs into Lawsuit if it Has Not Produced Song Files", where we asked them, in essence, how they intend to prove that if they can't actually produce those allegedly downloaded files.

Their "perfect digital copies" line comes up in their responses to followup interrogatories (exhibit B to Reply affidavit of Morlan Ty Rogers).

Maybe you know better than I do why they made such a point of how 'perfect' their 'digital copies' were. Maybe they thought that if the copies were really, really perfect, it wouldn't matter that they didn't have copies of them.

I believe they would have to have downloaded the song files. See UMG v. Lindor (Letters dated August 1, 2006, and August 4, 2006), where they want to be able to say at trial that they are suing over songs for which they do not have the song files, and we are seeking to preclude them.

It will take years or decades to hammer out what does or does not constitute "fair use" with song files. In BMG v. Gonzalez, a p2p file sharing case, the poor lady got hammered on her claim of a "fair use" right to make copies.

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.

Yes, but the RIAA has zero evidence of the defendants distributing. Please re-read the definition of distribution in the Copyright Act which you studied, and you will see that. I would also refer you to the brief of the Computer & Communications Industry Association and the US Internet Industry Association on that subject in Elektra v. Barker.

Well I must confess that I was probably being facetious because I was annoyed at his question. I was annoyed that (a) he was counseling young people when his own view of copyright law is basically fictional, (b) he's counseling them on issues that even experienced copyright lawyers don't know the answer to, because the law is unsettled, and (c) he's going around spreading false ideas that will just get people into more trouble. So I apologize. I should have been more respectful.

We are in a time of flux, and the issues are being hammered out in cases where the content providers have all the money for expert witnesses, teams of lawyers, etc., and their opponents have nothing.

If the computer industry doesn't get into the fight of helping the RIAA victims, the copyright law is going to be expanded and twisted to such an extent that the internet as we know it will cease to exist. See amicus brief of US Internet Industry Association and Computer & Communications Industry Association in Elektra v. Barker.

See Statement of Interest of U. S. Dept. of Justice in Elektra v. Barker.

I doubt Defendant will prevail..........

Defendant is going to lose this motion........ if Defense counsel thought she was going to win on this motion, she's a moron.......

What's most interesting about this whole thing is not that Defendant will lose this motion, but that Defendant is probabl[y] going to get his case set on an expedited schedule, have his deposition taken, and then fight over the inevitable discovery compliance motion RIAA will file when Defendant tries to avoid allowing an expert to examine his hard drive to see whether he actually downloaded the tunes, or ripped them as he stated under oath..........

How can you be so sure? I've been a litigation lawyer for around 28 years, and I never know how things are going to turn out, until they do.

Sure the judge could deny the motion and feel that plaintiffs should be entitled to some pretrial discovery.

But he's under no requirement to do so, especially since the plaintiffs have zero evidence to begin with.

Bear in mind that the plaintiffs need more than "surmise" and "conjecture" to defeat a summary judgment motion, they're supposed to have at least some hard core evidence.

I don't know what's going to happen, but all I can say is "stay tuned" to the case file; I'll update it when something does happen.

You might be talking about these cases: Priority Records v. Candy Chan( Chan I ) and Priority Records v. Brittany Chan (Chan II ), in Michigan; Capitol v. Foster, in Oklahoma; Warner v. Stubbs, also in Oklahoma; and Virgin Records v. Tammie Marson, in California. All cases resulted in RIAA dropping the case.

All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.

You might be talking about these cases: Priority Records v. Candy Chan( Chan I ) and Priority Records v. Brittany Chan (Chan II ), in Michigan; Capitol v. Foster, in Oklahoma; Warner v. Stubbs, also in Oklahoma; and Virgin Records v. Tammie Marson, in California. All cases resulted in RIAA dropping the case.

All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.

You might be talking about these cases: Priority Records v. Candy Chan( Chan I ) and Priority Records v. Brittany Chan (Chan II ), in Michigan; Capitol v. Foster, in Oklahoma; Warner v. Stubbs, also in Oklahoma; and Virgin Records v. Tammie Marson, in California. All cases resulted in RIAA dropping the case.

All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.

You might be talking about these cases: Priority Records v. Candy Chan( Chan I ) and Priority Records v. Brittany Chan (Chan II ), in Michigan; Capitol v. Foster, in Oklahoma; Warner v. Stubbs, also in Oklahoma; and Virgin Records v. Tammie Marson, in California. All cases resulted in RIAA dropping the case.

All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.

You might be talking about these cases: Priority Records v. Candy Chan( Chan I ) and Priority Records v. Brittany Chan (Chan II ), in Michigan; Capitol v. Foster, in Oklahoma; Warner v. Stubbs, also in Oklahoma; and Virgin Records v. Tammie Marson, in California. All cases resulted in RIAA dropping the case.

All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.

Your are correct that it was only 'one side of the story'. However, it wasn't the defendant's side. It was the testimony of a 15-year-old witness, who testified under oath that she had previously 'misspoken' under oath at the behest of the RIAA's lawyer.

I don't trust my memory anymore, but my recollection is that the RIAA never disputed what she said, and that a quiet, confidential settlement was abruptly entered into. If I can find out that they did rebut it, I'll try to get the document posted, but I'm pretty sure this was something that actually did happen.

If a lawyer who is accused of suborning perjury goes for a quick settlement with a gag order, rather than demanding that his good name be cleared, I would tend to think it really did happen....but I have no personal knowledge one way or the other.

I CAN tell you that this guy is the very same lawyer who made the motion in Warner v. Scantlebury to stay the case against the dead defendant for 60 days, to give his family enough time to 'grieve', and then pick up taking depositions of the decedent's children.

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.

The reference to bullying witnesses into perjury has to do with the RIAA's lawyers' conduct in Motown v. Nelson, a Michigan case in which a 15 year old witness testified to conduct by the RIAA's lawyers which might be construed that way. See also my blog post from last year on that subject.

I've been trying to build such a directory of lawyers who are fighting the RIAA:

http://info.riaalawsuits.us/directory.htm

My list tries to include only lawyers who will definitely fight, rather than try to steer you to settling.

And the EFF has a broader list of lawyers who have expressed an interest in helping the defendants:

http://subpoenadefense.org/legal.htm

Personally, I think (a) the people at Slashdot are a pretty intelligent lot, and (b) the best things for them to read are not what a commentator has to say, but the actual court records.

I have seen some spirited, high-level debates in these pages where people cite to different parts of different litigation documents.

That is why my site is the way it is; it is information, not entertainment. The key elements are (a) the index of litigation documents; (b) the directory of lawyers who are fighting the RIAA; and (c) the posts highlighting significant level events. The post, How the RIAA Litigation Process Works, which Grant Robertson describes as being as 'dry as a bread sandwich', is merely intended to be an accurate summary of what is going on out there, not a substitute for informing onesself and forming one's own opinions. (I hope punkr0x is right, that it is not quite as poorly written as Grant makes it out to be.).

My site is intended to serve the following readers: (a) people who are being targeted by the RIAA; (b) lawyers who are representing or would like to represent these folks; (c) journalists looking for primary rather than secondary sources; and (d) other intelligent people, lawyers and nonlawyers alike, who want to understand what is happening here, and who don't need to be told what to think.

I think the 'laymen' at Slashdot are pretty good readers.

Did you read the original article by Ray Beckerman (linked in the FA)? I thought it was pretty straightforward and very easy to understand. (IANAL or anything close). Grant Robertson just sort of stretched it out and threw a lot of examples in there, and made it harder to follow in my mind.

The original article that /. covered is not very detailed. Going back through the comments I found this quote from HardCase "The court also ruled that the plaintiffs were not prevented from bringing an action against anyone else, including Brittany Chan, the minor child of Candy Chan." (He is quoting this article at riaalawsuits.us. So they didn't allow the RIAA to amend the case at the time but nothing prevented them from bringing the case against her again.

Did you happen read the judge's order [.pdf]?

To the extent Candy Chan has incurred legal fees in this action, such fees are primarily the results of tactics designed to impede the ability of Plaintiffs to prosecute this action in an efficient manner. In addition, the Court finds that the reason Plaintiffs have repeatedly filed motions is because Candy Chan has not agreed to fairly simple mechanisms which would accomplish the same objectives that the filing of motions has accomplished. Therefore, Candy Chan's request for attorney fees is denied.

Sorry for my lack of legal education, but is the judge's sole reason for denying the "motion to have the plaintiff pay the defendant's legal fees" the fact that she defended herself aggressively and stalled the plaintiff where possible? Isn't that what you're SUPPOSED to do when some idiot files a bullshit lawsuit?

I wonder about the competance of this particular judge. I spent several hours reading about a case where he was the judge. Some guy in Texas created a fansite devoted to a shopping mall down the road from him. For some unknown reason, the mall's owner sued him and Zatkoff got the case.

Nearly every ruling this judge made in that case flew in the face of common sense, totally ignoring facts to rule in favor of the plaintiff. He even made up reasons to rule the way he did, ignoring arguments from both sides. He even did some investigating of his own (which I would think is illegal), didn't enter it into evidence in any manner, and then used that as a reason to rule for the plaintiff. Nearly all of his rulings were overturned on appeal for being improper. The case finally ended when the mall's owner realized he wasn't going to win and he withdrew the lawsuit.

Actually, no. The court dismissed the suit "with prejudice" against the mother, Candy Chan, but they dismissed the suit "without predjudice" against anybody else. The second order denied the RIAA's motion to amend the original lawsuit to add the daughter as a defendant. Only the motion to amend was denied - the RIAA can file a new lawsuit.

In fact, the second sentence of the second order is pretty clear: "The court also ruled that the plantiffs were not prevented from bringing an action against anyone else, including Brittany Chan, the minor child of Candy Chan."

So, all that's happened is that mom has managed to shift the blame from her to her daughter. Mom gets to pay her attorney's fees and the RIAA gets another crack at the family through the daughter.

-h-

http://riaalawsuits.us/elektra_santangelo/exAexAto complaint.pdf

Lit, Foo Fighters, 3EB, UB40, Godsmack, and Incubus. Probably not the mom who downloaded them.

I am the author of the blog "Recording Industry vs. The People", and one of the lawyers representing Patti Santangelo and other victims of the RIAA lawsuits in the New York City metropolitan area.

There is, rightly, a lot of concern on how regular people can handle the economic imbalance in these lawsuits.

And there are in existence certain tools: (a) the copyright law's fee-shifting provisions, (b) Federal Rule 11, which bars lawyers from signing frivolous litigation documents, and (c) the willingness of some lawyers to take reduced fees, or to do some work without a fee at all.

My reading on the internet over the last several weeks, and especially of this thread on slashdot last night and this morning, gave me an idea for another possible tool.

I decided to try something a little innovative this morning, and added 'pay-per-click' advertising to our blog, http://recordingindustryvspeople.blogspot.com, and to its companion site hosting the litigation documents, http://info.riaalawsuits.us , with all proceeds from the ads to be used to help defray legal fees and disbursements of our clients defending the RIAA litigations.

I've never seen or done anything like this before, so I don't know how it will work out, but just thought you guys -- who have been fabulous in your passionate, thoughtful, and sometimes even scholarly exegesis of the Elektra v. Santangelo litigation documents -- would like to know.

Best regards,

Ray Beckerman

1) claimant doesn't state the specific infringements that occured. Umm, yes they did, it's only 6 files, but the RIAA respresentative said that those 6 were downloaded, and listened to, and confirmed that they were owned by the various companies

Actually, they don't. The only link between the files and the acts of infringement they make is in count 13 of (emphasis added):

13. Plaintiffs are informed and believe that Defendant [...] has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others.

See the problem? They only ever say "we think our rights were infringed". They never say why they think so. You have to have some sort of basis for believing that (and set it out in your complaint), whether it's packet captures, system logs (not likely on Windows boxes), or whatever. As the defense lawyers point out in their Revised Reply Memorandum of Law (see the bottom of page 2 / top of page 3), the mere presence of the files isn't sufficient--they could just as well have been legally obtained.

2) claimant didn't specify when the infringement occured. Umm, they sort of did.

As they say, "almost" only counts in horseshoes and hand grenades. Certainly not in a court of law.

They said that the files were located on the computer on 11-4-04. The RIAA can't specifically say that other people copied files off on that specific day, but I'm pretty sure that doesn't have to be proved.

You bet it does. Unless you have a sworn statement from somebody who downloaded it from that computer, a dated packet capture is about the only way you can prove a file was actually transferred. Again, it's not sufficient to say "this person had these files available for sharing"--you have to identify actual instances of distribution or you don't have a claim.

#include <stddisclaimer/ianal.h>

1) claimant doesn't state the specific infringements that occured. Umm, yes they did, it's only 6 files, but the RIAA respresentative said that those 6 were downloaded, and listened to, and confirmed that they were owned by the various companies

Actually, they don't. The only link between the files and the acts of infringement they make is in count 13 of (emphasis added):

13. Plaintiffs are informed and believe that Defendant [...] has used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others.

See the problem? They only ever say "we think our rights were infringed". They never say why they think so. You have to have some sort of basis for believing that (and set it out in your complaint), whether it's packet captures, system logs (not likely on Windows boxes), or whatever. As the defense lawyers point out in their Revised Reply Memorandum of Law (see the bottom of page 2 / top of page 3), the mere presence of the files isn't sufficient--they could just as well have been legally obtained.

2) claimant didn't specify when the infringement occured. Umm, they sort of did.

As they say, "almost" only counts in horseshoes and hand grenades. Certainly not in a court of law.

They said that the files were located on the computer on 11-4-04. The RIAA can't specifically say that other people copied files off on that specific day, but I'm pretty sure that doesn't have to be proved.

You bet it does. Unless you have a sworn statement from somebody who downloaded it from that computer, a dated packet capture is about the only way you can prove a file was actually transferred. Again, it's not sufficient to say "this person had these files available for sharing"--you have to identify actual instances of distribution or you don't have a claim.

#include <stddisclaimer/ianal.h>

The two that I could find are:

1) claimant doesn't state the specific infringements that occured. Umm, yes they did, it's only 6 files, but the RIAA respresentative said that those 6 were downloaded, and listened to, and confirmed that they were owned by the various companies

2) claimant didn't specify when the infringement occured. Umm, they sort of did. They said that the files were located on the computer on 11-4-04. The RIAA can't specifically say that other people copied files off on that specific day, but I'm pretty sure that doesn't have to be proved. Simply putting up a website with illegal content or standing on a corner with a box of CD's is sufficient for litigation, without specifically naming any buyer/downloader.

IANAL, but, from dictionary.law.com:

verification (as is a verified complaint)- n. the declaration under oath or upon penalty of perjury that a statement or pleading is true, located at the end of a document. A typical verification reads: "I declare under penalty of perjury under the laws of the State of California, that I have read the above complaint and I know it is true of my own knowledge, except as to those things stated upon information and belief, and as to those I believe it to be true. Executed January 3, 1995, at Monrovia, California. (signed) Georgia Garner, declarant." If a complaint is verified then the answer to the complaint must be verified.

If you look at the original complaint, you'll see at the bottom no one was willing to swear under penalty of perjury that it was true. The stuff you learn following links on slashdot!