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Mom, and Now Judge, Stand Up to RIAA
Nom du Keyboard writes "First there was the mother, Patricia Santangelo, who has refused to roll-over to RIAA demands to pay their extortion fee because they claim to have identified her IP address as involved in Kazaa file sharing. Now Judge McMahon doesn't seem to be letting the RIAA have it all their way either in this case. Godwin's Law summarizes the rebuke of Judge McMahon to the RIAA lawyer now that a court case has been filed. A transcript of the entire court appearance is also available."
...but the judge said "So let's set another conference date for July 8th at, 9 say, 10 a.m. And hopefully you will have an attorney by then." She had 60 days to find a somewhat competant lawyer...
It's like a drama... so what happened after the sounding off? This was not a court case, this was a pelimnary hearing... nothing was decided (though the sentiment of the judge was obvious).
Honestly, I think the RIAA is afraid of one of these going to trial because they know the evidence is shaky. That's why they try to push the settlements so hard.
The method seems to be "if you give us the virgin, we'll make sure the volcano doesn't destroy their village." They will try to steer this to an out of court settlement so they don't have to go through the public spectacle of being refused a virgin and the people seeing that the volcano didn't erupt.
So the judge says: "okay, big boys, bring on the lava. Don't try to lure the virgin into the forest and quietly convince her to go to another village. You threatened it, she said she doesn't want to leap, so bring it on and stop pussyfooting around."
- Greg
Start a happiness pandemic
It seems like a hard thing to prove in court. Isn't the threshold "beyond a reasonable doubt" for a crime, and "preponderance of the evidence" for civil cases?
Maybe it is time to chance the threshold for guilt from preponderance to "highly likely".
What happens if someone has a wireless router in their apartment and the neighbor downloads music using it?
What happens if a community college with a wireless lan network has students download music?
What if a parent has their childrens friends over, and the kids download music?
There are thousands of ways music can be shared, where the person who owns the IP address will have no knowldge of the downloading.
And what if someone masks their IP address on the P2P networks? How hard is it to use a proxy? How hard is it to find a hack? The RIAA might see my IP address, but how can they prove it came from my IP?
Does the defendant have to prove innocence here?
Is the IP address infallible?
Rosco: "If brains were gunpowder, Enos couldn't blow his nose."
Do you now understand why DRM will succeed and why customers will *like* it?
Because, it will be presented like this:
"DRM will help secure you and your computer so that nobody will be able to pirate movies or music through your computer and you won't have to worry about being sued for $100k".
Actually, the most interesting thing about the transcript as I read it was that the lawyer for the music industry wanted the defendant/her lawyer to mess around with some industry settlement process, but the judge basically squashed it flat:
The judge earlier stamped on an attempt to get the defendant to state a position under oath before having the chance to take legal advice pretty heavily, too.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
By the way, how far does the judge have to go in saying that he's leaning towards a particular party before the evidence is even presented, before he starts risking invalidating the whole trial?
This is great arguing by the entertainment corps.
Defendant uses the Kazaa search engine, which furnishings the software, which allows the defendant to upload other users' files.
Do you see how they put her in the wrong immediately by spinning the definition of Kazza? Now I'm not saying Kazaa is solving world hunger, but this is expert stuff.
The captured materials in Exhibit B shows that the defendant had uploaded at least 1,641 files.
This is like asking a witness, "When did you stop beating your wife?"
From there, the RIAA's has a tough road ahead because the judge identifies almost immediately with the defendant and assists her in a few different ways.
MR. MASCHIO: Can I be heard for a moment, your Honor?
THE COURT: You can be heard all you want.
OUCH!!!
Here's where it gets really ugly for the lawyer.
MR. MASCHIO: That's okay. We would just like -- we think it's appropriate for her to say, yes, I did this or, no, I did not do this under oath. The other thing is that --
THE COURT: First of all, you didn't file a verified complaint, and she doesn't have to file a verified answer. So she doesn't have to do anything under oath.
MR. MASCHIO: Well, okay.
At this point the lawyer is a spineless mass on the court's floor with grey matter seeping out of his ears. RIAA didn't file properly and have a lawyer in there that thinks this will go over his way just because he's the RIAA. Love it or hate it, courts have these procedures and you pay dearly if they aren't followed.
Here's the quotes around questioning the whole IP address/ account name as incontrovertable evidence.
MR. MASCHIO: They wouldn't have brought the action, your Honor, if they hadn't verified that very carefully.
THE COURT: Well, we'll see, won't we? We'll see. And if what she's telling me is wrong, I won't be very happy with her.
Now, if she is lying, she's in BIG trouble. Let's hope she's truthful and the entertainment corps can't prove a lie.
This next part is hilarious and starts by the judge telling the lawyer to give his business card to the defendant.
I'll give her my card, but our instructions are for these people to deal with the conference settlement center. They had discussions.
THE COURT: I'm sorry. Your instructions from me, the Judge --
MR. MASCHIO: Okay.
THE COURT: -- are that, if she appears with a lawyer, her lawyer will deal with you.
MR. MASCHIO: Oh, absolutely, your Honor.
THE COURT: Otherwise, you take your action and you file it in front of an arbitrator.
MR. MASCHIO: No, all I was suggesting, your Honor, is that, if she doesn't come with an attorney, that the more direct way of doing this -- and this is just to facilitate things -- is to deal directly with the conference center.
THE COURT: Not once you've filed an action in my court.
MR. MASCHIO: Okay.
THE COURT: You file an action in my court, your conference center is out of it. They have nothing to do with anything.
MR. MASCHIO: Okay. I'll give her my card.
THE COURT: If you are here, you are here as an officer of the court. You're taking up my time and cluttering up my calendar, so you will do it in the context of the Court. Maybe it will be with a magistrate judge, but you will be representing your client, not some conference center. And if your people want things to be done through the conference center, tell them not to bring lawsuits.
That lawyer was SO unprepared it is hard to believe. I really should have gone to law school because I know I can run rings around jokers like this.
Now, let's hope she's smart enough to get someone willing to invest the time and effort to make her case a test case. Either that or counter sue.
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
I am a parent, and one thing that I try to teach my son is that sharing is a "good thing". Share your toys with a friend. Share your food with the less fortunate, etc. So he gets a warm and fuzzy feeling inside when he shares.
Now, he "shares" some of the songs he ripped from a CD or someone shares a song with him in return. Now "sharing" is a crime and it shouldn't done.
I understand that it really isn't sharing to the adult world, but to a child who has been taught that you should "share", it seems natural that it is okay to share something of yours which you bought with your own allowance.
I am not saying that it is right or wrong, but I think the "powers-that-be" need to be a little less "heavy-handed", and realize that file-sharing may be non-obvious crime to a typical young person.
I am reminded of a story that someone told me recently. A boy was three or four and saw a pile of money on the table. He didn't see it as "money" like an adult, but as just some funny pieces of paper. He took the money, not realizing its importance. The mother caught the boy with the money and punished him for "stealing". The boy protested saying that all he did wanted to do was play with the paper. Instead of explaining the significance of the paper (educating the youngster), she applied adult standards of conduct to the child. I would wager that the boy had no idea what he did wrong, because in his eyes, he was just playing with some paper which he had probably done before.
The point is that we should not assume that children know what they are doing wrong. Rather than looking to punish, we should be looking to educate and bring about understanding. Children are not small adults. They are naieve to the ways of the adult world, and anyone who expects otherwise is an idiot.
I would imagine that those at the RIAA are all child-less, because they have no common sense when it comes to these things.
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www.moneybythenumbers.com
It's a good thing that the judge was sympathetic towards the defendent, because the RIAA representative was being very forceful about trying to put her at a disadvantage. The lady was basically defenseless, and the plaintiff was attempting to guide the case in a direction that isn't necessarily legal (but not illegal, if you catch my drift). Without the judge to back her up, the RIAA would have made her tie her own rope, and not before suggesting that she still might settle with them outside of court. This sort of pressure was obviously designed to scare her into settling with the RIAA and paying them money she does not legally owe. I feel some kind of bully mentality here (intimidate the victim into not making an appeal to authority), and it's kind of scary to see a very polite man in a suit radiate such a sinister aura. Maybe I'm just afraid of lawyers. ;-)
It's quite questionable in my eyes whether or not she can be held responsible (and I speak merely from common sense, not legal precedence), and it seems to me that the RIAA's open-and-shut tactics, not to mention the eagerness to settle, suggest that they feel some anxiety about how strong their case is and whether or not they could win it. Call me blind, but I think this is a battle the RIAA would rather not fight, and that's precisely why the judge is eager to make it happen (you'll notice that he gives the defendent quite a shove in the right direction).
...with decades of provable payola, collusion to fix prices, accounting tricks to make hundred million dollar movies always look like losses, screwing talent out of any decent cut, and etc that someplace sometime some DA might apply RICO to them, because it sure fits. They should be the last people pointing fingers and accusing someone of being a crook.
Heinlein put it best.
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General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.