First RIAA Lawsuit to Head to Trial

mamer-retrogamer writes "Out of 14,800 lawsuits the RIAA has filed in the past two years, none have gone to court - until now. Patricia Santangelo, a divorced mother of five living in Wappingers Falls, New York, found herself the target of an RIAA lawsuit and vows to contest it. Santangelo claims that she knows nothing about downloading music online and the likely culprit is not her but a friend's child who used her computer. The RIAA disagrees."

Comments

I'd like to see this go to a jury.

[gasmonso]

No jury in the world would come down on a person for downloading a few songs when the corporation suing is insanely rich and greedy. Even if she were guilty, I would give her a slap on the wrist at most. Go after the people selling the pirated music!

gasmonso http://religiousfreaks.com/

Re:I'd like to see this go to a jury.

[Seumas]

Sure they would. Just not on a female mother of five. If she were a male, they definitely would screw him over.

Re:I'd like to see this go to a jury.

[vsavatar]

This is a civil case, not a criminal one. If the RIAA loses, they will simply appeal. Then it doesn't go to a jury. It goes to a judge. Furthermore, it's highly likely it will go to a judge the first time around. Judges have no problems coming down on mothers of five because they truthfully don't care. I hope she wins on the merits of her case. I would love to see someone stick it to the RIAA. The sad thing is though, she will probably spend upwards for $200,000 litigating this. It's sad when citizens can't afford to defend themselves against large corporations.

Re:I'd like to see this go to a jury.

[Raul654]

(Obligatory IANAL) They (the RIAA) can appeal the a jury's decision only if they can find an error of law in the case (e.g, the judge has to make a reversable error). Furthermore, the appealant court cannot make a determination of facts in the case (under the 7th ammendment to the constitution, this right is resevered to juries in cases of more than $20 unless both parties wave their trial-by-jury right) - judges can only rule on matters of law.

Re:I'd like to see this go to a jury.

[vsavatar]

That's the beauty of law. You can always find SOMETHING to contest. The jury is purely a finder of fact, but if the judge does not allow them to consider something they shouldn't have, or if he does allow them to consider something they shouldn't have, that alone is basis for appeal. There are tons of other reasons to file appearls, but the RIAA has enough time and enough money to litigate that woman into bankruptcy 500 times over.

Re:I'd like to see this go to a jury.

[daigu]

Have you been selected to jury duty? I remember being screened for a jury in a trial where one of the lawyers asked the jury whether they would pass a guilty verdict for battery if a defendent had touched the toe of someone that had asked them not to touch it. Everyone, but me, said they would. Felony conviction for touching someone's toe. I think you grossly overestimate the free thinking capabilities of your fellow citizens.

Re:I'd like to see this go to a jury.

[bugg]

I'm somewhat amused that nobody else has pointed this out...

It's a civil case, and people are not found "guilty" or "not guilty" in civil matters. The jury will be ruling either with or against the plantiff, and it is up to the jury to determine the amount of damages.

There are plenty of cases where juries have ruled with the plantiff but refused to award damages of more than, say, $1 - a token amount that indicates while the plantiff was correct, the jury did not feel they should be awarded much money.

Re:I'd like to see this go to a jury.

[ozmanjusri]

Just not on a female mother of five. If she were a male, they definitely would screw him over.

A male mother of five has bigger problems than the RIAA.

Re:I'd like to see this go to a jury.

[Fulcrum of Evil]

The woman is being accused of commiting a crime.

No, this is civil court, which hs a different legal standard and no possibility of jail time.

Re:I'd like to see this go to a jury.

[vsavatar]

In addition to this, it should be noted that the standard of proof in a civil case is not "beyond reasonable doubt". It is a preponderance of evidence, which simply means that there's a reasonably high probability (some estimate it to be around 60%) that the defendant committed the act of which the plaintiff accuses them. In some other cases, the standard of proof is "clear and convincing" evidence (some say around 80% probability). Preponderance of evidence is the lowest standard.

Re:I'd like to see this go to a jury.

[BKX]

Except that if they do it enough times, they'll find themselves involved in a SLAPP lawsuit. That's the real beauty. The RIAA gets one chance to win and maybe an appeal or two but after that, it will appear that they are appealling to bankrupt the defendant by continuous appeals (rather than appealling because there was a real error) and will be sued for SLAPP violations, which they will lose. And then the RIAA will be out real money and the woman will be very rich. That's why they won't appeal but once to each court they can. But you can bet that it'll be good.

Re:I'd like to see this go to a jury.

[Shakrai]

Sure they would. Just not on a female mother of five. If she were a male, they definitely would screw him over.

<cynic mode>You mean a white female, mother of five.</cynic mode>

Actually, the corruption of the justice system has more to do with money then race. But even given that disadvantage I have a hard time buying that a jury would stick it to an individual who downloaded/shared a few songs. And isn't the burden of proof on RIAA to prove that it was actually her that did it? How the hell are they going to do that based on an IP address?

Kudos to her for fighting them. It's easy for us /.'ers to say that we would do the same -- think of the money she is spending and the nonsense she is going through.

Re:I'd like to see this go to a jury.

[E8086]

"How the hell are they going to do that based on an IP address?"

First thing to do is challenge how they got the IP, oh wait, it's IPA now, they're trying to hijack the use of "IP". We all know they're not doing any of the work themselves, they're just hiring "agents" who secretly enter people's computers to search for music files. If another company said it's true, then it must be true because large corporations and their contractors would *never* ever even think of saying anything that isn't true or do anything moraly questionable, like . It's possible they're borrowing the server IP logs of some RIAA bashing message boards, adding a couple songs, file sizes and time stamps and suddenly it goes from "you said something bad about our cartel" to "you're stealing sound". Ok, so it may not happen that way, but does snyone really know how the RIAA gets that information? People are challenging breathalizers because the firmware use closed source. It's all about the money, places in Vegas used, possibly still try, to rig slot machines to pay out fewer jackpots resulting in fewer payouts and more PROFIT. It may be unlikely, but still slightly possible.

And the claims of lost billions due to what they call "piracy". I'd like to see some proof of that too. Yes, there are people who borrow audio files using the Internets, but does anyone really know how many and how much revenuse is lost because of it? I know people with large music collections they didn't buy, but I know more people with hundreds of pounds of records and CDs. My favorite stats are $250billion lost and 3% of sales lost. That's like claiming 3% of their sales is $250billion, do a little math and see that those "stats" are very questionable, they may be large corporations, but I don't think they're worth that much.

They make up stats of lost PROFITs and inflate claims of "piracy" and like to pull a SCO and sue people to offset lower sales due to poor quality products. Their cases need to be thrown out until they produce some real proof.

As for a jury deciding for defendant, not everyone reads /. and thinks poorly of the RIAA. It's possible the jury will be stacked with people with hundreds of records who will want to fry anyone who hasn't spent half as much as they have on music or believe some RIAA claims that "piracy"(ARRRG!!!) *not* price fixing is the cause of high CD prices.

Re:I'd like to see this go to a jury.

[lightspawn]

Two words: pro bono. There are tons of lawyers out there itching like mad to take this case.

I thought pro bono meant you were for extending copyrights indefinitely.

Re:I'd like to see this go to a jury.

[mrsbrisby]

The jury is purely a finder of fact,

No they're not.

This is one of the biggest lies that Judges and Lawyers to this day try and convince jurors.

Jurors not only have the right, they have the duty to decide whether the Judge is being a cockhead, the law is stupid, or that dumb slut had it coming.

Next time you think Jurors are required to decide on facts, or don't have the ability to rewrite law from the box, I urge you to pay attention at the next Michael Jackson molostation case, or if ever OJ Simpson decides to remarry.

Re:I'd like to see this go to a jury.

[Smallpond]

Imagine a non-technical jury trying to follow this:

This woman stole our IP.

How do you know?

Because her ISP gave us her IP.

Re:I'd like to see this go to a jury.

[Alucard454]

disclaimer: IAAE (i am an economist) (god i hate acronyms)

I actually did a study like this, and though i doubt it was one of the ones you read, i did indeed examine the relationship between sales and new album releases. in fact, my final model found three statistically significant variables that accounted for most of the variation in record sales (at the 95% confidence level).

those three variables were %change in GDP (year on year), Personal Consumption Expenditures (which helps account for people's changing spending habits in times of economic uncertainty and such), and New Album Releases.

I ran dozens of different models in an attempt to capture the "piracy" effect, and after two years was forced to conclude that this effect, if it exists at all, is indistinguishable from random noise. in other words, it is insignificant.

I am continuing my research into this area and I have actually recently found a couple of additional economists interested in helping my research, so hopefully we will be able to contribute more to the literate on the subject in the future. regardless, there is already an awful lot of evidence that at least makes us seriously question the veracity of the industry's claims, and makes us wonder how the flying fuck they justify their rather ridiculous conclusions.

Song choices

[jimmyhat3939]

I think, perhaps, the criminal authorities should be pursuing this poor woman, for her choices of music to download:

• Lit "Happy"
• Incubus "Nowhere fast"
• Third Eye Blind "Semi-Charmed Life"
• UB40 "Can't Help Falling in Love"
• Godsmack "Whatever"
• Foo Fighters "Breakout"

What? No Limp Bizkit? No Britney Spears? No Kanye West?

Re:Song choices

[Wyatt Earp]

Uh...no...

The Home Owner is not responsable for everything that goes on in the home. If Timmy is shooting smack in his bedroom and goes down for it at school because of a drug test or an arrest, Mom and Dad don't do the time.

I think the whole parenting/privacy thing of kids and computers got handled here after Columbine on /.

Re:Song choices

[eric76]

From Electronic Frontier Foundation, Memorandum, Date: November 1, 2005, To: Defense counsel in RIAA and MPAA individual file sharing suits, Chris Conley, EFF Legal Intern, Re: parental Liability for Copyright Infringement by Minor Children

Plaintiffs, usually record companies, may attempt to bring claims against the parents of children who allegedly infringe copyright via either indirect copyright liability or state parental liability statutes. This memorandum is intended as background research aimed at summarizing the relevant legal principles.

A claim of indirect copyright infringement may be premised on the theory of vicarious liability, which requires the right and ability to control the infringing action and a financial interest in the infringement, or contributory infringement, which requires knowledge of and participation in the infringement; each of these elements may be challenged by a parent. Claims based on state parental liability statutes will depend on the precise statute being considered, but in many states the statute may not apply to actions based on copyright infringement or may be preempted by the Copyright Act based on either express or conflict preemption.

For more details, read the whole thing.

Of course the RIAA disagrees...

[Rabbi T. White]

When you're in the buisness of fear-mongering, backing down from things - even when it's completely irrational - just isn't an option. They'll keep repeating their truth until everyone believes it.

My question for the legally saavy:

[merc]

Would this lawsuit set any type of precedent, or is it unique in any way?

Re:My question for the legally saavy:

[ZachPruckowski]

I'm not legal savvy, but it'll set a big unoffical precedent. If this woman loses, it's all the more reason for someone to settle with the RIAA if/when they come knocking. If she or anyone else gets off, then there will be more people willing to fight the RIAA suits. As I see it, the RIAA will lose if it has to cover thousands of trials and the associated legal fees. They have lots of lawyers and money, but hopefully we can get pro bono lawyers for the defendants. And even if they win most of the trials, the people are too poor to pay the judgements, and the trials will be a financial loss for the RIAA, since whatever they get off the average person will be less than their total legal fees.

Re:My question for the legally saavy:

[wile_e_wonka]

IANAL, but I am a law student.

The case would set precedent. The strength of the precedent, however, depends on how far the case goes. If the district court says "X," then it needs to be consistant with "X" in the future (unless it has a darn good reason not to be). But the case might get appealed. The court of appeals sets precedent for itself and all courts lower that are in the same circuit. The Supreme Court sets precedent for all circuit and districts courts.

This is how it would work in application: The district court rules "X" regarding the case. If "X" is favorable to the RIAA then it will bring future cases to the same district court. If "X" is not favorable to the RIAA then it will bring the next case to a different court that does not need to pay attention to the decision of the first court, or the RIAA may appeal the decision of the district court.

If there is an appeal, the the same scenario as above applies. If the decision on appeal is favorable to the RIAA then the RIAA will bring future cases to any district court in that same circuit because all of the district courts are bound by the precedent set by the court of appeals.

If the court of appeals decision is not favorable to the RIAA then it will bring future cases in an entirely different district because all of the district courts must follow that same unfavorable holding. Or, alternatively, the RIAA may appeal the unfavorable court of appeals decision to the Supreme Court.

The courts of appeals and the Supreme Court all have the choice as to whether or not to hear arguments on the district court cases. The vast majority of cases never make it past a district court.

Really it's all more complex than this, but that's the basics.

It's about time

[johndierks]

This should be very interesting. Finally the RIAA's methods of targeting and suing their customers is really going to be called into question. If nothing else, finally it will actually start costing the RIAA cold hard cash to prove their cases, and maybe they'll start to understand the costs of willy-nilly litigation.

From TFA:

And as for those who claim they didn't download any music, the RIAA says that if defendants got a letter in the mail saying they or someone in their house illegally downloaded music, chances are it is true.

"The chances of it not being the right person or someone in that household are slim," said Stanley Pierre-Louis, senior vice president for legal affairs at the RIAA. "Let's face it, what we're doing is on the right side here. What these users are doing is violating the copyright laws."

I call bullshit.

This is exactly why I have a second unsecured access point in my apartment piped to the internet. Plausible denyabilty. Who know who's using it? My modem's IP address could be connected to any one of the 50 apartments in my building.

Re:It's about time

[Bogtha]

Gotta love the logic on that one.

"You infringed on our copyright!"

"It wasn't me, just somebody who used my computer."

"It was probably you because, let's face it, copyright infringement is illegal!"

Why?

[sirgallihad]

Why do they always seem to pick on the "little guy"? A divorced mother of 5? How can they possibly make themselves look good by doing this? They would probably be more liked if they were to sue the 20-year-olds with gigs of music instead of the divorced parents trying to make ends meet, or the old granny. It looks as if they are trying to play the "Big mean bad guy", though I can only see this hurting them, am I wrong?

Re:Why?

[Potato Battery]

She maybe a very nice lady with a marriage that fell apart, but we don't know that.

Actually, we do (www.thejournalnews.com).

Patricia Santangelo is in many ways the embodiment of the suburban mom. She is the mother of five children, ranging in age from 6 to 19. She is divorced, living in Wappingers Falls after growing up in Yorktown and Putnam County. At 42, she works as a property manager for a real estate company and is trying to get her own business off the ground.

Who to blame more than the RIAA?

[dada21]

You, the voter.

The voters elected a Congress with no concern for their enumerated and severely powers. Republicans, Democrats, Greens and Independents are equally evil.

The voters continue to vote, robbing everyone of their basic rights. The crazy majority has given their power away to a government more concerned with growing its power.

Don't confuse the RIAA with evil. You, the voter, are evil. They just followed the letter of the laws you wanted.

Re:Who to blame more than the RIAA?

[KarmaOverDogma]

Not all voters are evil or ignorant, as you claim they are. Some of us actually monitor what our politicians do, where they get their funding from and vote accordingly.

Your attempts to put every voter, party and politician in the "stupid" basket is an insult to those who fight this kind of nonsense.

Instead of blaming others (a very immature tactic) consider the things you might actually do to fight this:

* Join the EFF
* Write your congressperson/senators when they do something you really like or don't like
* Tell other people how you feel outside of slashdot
* dont buy RIAA/MPAA labels, borrow them from the library if you must have them
* Join the ACLU

Dont confuse us, the intelligent and active, with lame and lazy who complain and do little, or nothing, else.

What have *you* done lately?

Support her

[Anonymous Coward]

Where's the paypal button to her defense fund?

The right side? Yeah....

[Potato Battery]

I love the RIAA lawyer's quote, "Let's face it, what we're doing is on the right side here."

We're back in that universe where shaking down divorced moms with five kids for $3,000 - $4,000 or the threat of tens of thousands in court fees and damages, all as punishment for the heinous crime of the download of six songs, is "the right side." It's even more fun when you consider the possibility it wasn't even her who did it. I don't know, how popular is Godsmack among that demographic?

The RIAA interoffice memos on these cases must read like tobacco company internal communications.

I agree with her.

[imstanny]

The burden of proof is on the RIAA. They are the ones that are accusing her of downloading music illegally. Now, just because it's her computer doesn't matter; It's like accusing someone getting killed by a gun. Simply showing ownership of who the gun belongs to is not enough to show who done it.

Those are my 2 cents, and they're free.

Evil

[Tony]

Don't confuse the RIAA with evil. You, the voter, are evil. They just followed the letter of the laws you wanted.

Uhm, no. They are following the letter of the laws they purchased through a Free Market Government.

"Evil" is not in elections, or anything else. Evil is the willingness to fuck over someone for your own gain. Pure evil is when that gain is just for your own enjoyment.

The folks at the RIAA are willing to fuck over as many people as they can to ensure their own position in the distribution of music, a very profitable position. File sharing is dangerous, not just because people can download the latest lame Metallica song, but because it will allow people to distribute their own music. Yes, there's a lot of really, really bad stuff out there for free (some of it worse than Metallica's recent stuff), but as review sites progress, and the truly independent music scene evolves, people will be able to find the music they like, and the RIAA is cut out completely.

Independent music is doing to the RIAA what free software is doing to Microsoft-- making them stay up at night, even if it doesn't appear to be a real threat at the moment. P2P is essential for a solid independent music scene. The RIAA is trying not just to eliminate file sharing of copyrighted works (which is wrong, no matter how heavy-handed the bad guys are), but to paint all file sharing as evil.

If they can do that, they can destroy the truly independed music scene before it even gets started.

Re:Evil

[Fulcrum of Evil]

The RIAA sees no threat there. They see a threat from people breaking the laws that VOTERS SUPPORTED.

I don't recall a referendum on the DMCA, just a bunch of Senators, so what you really mean is that Congress supported it. I rather doubt a majority of people would support the law if they knew its implications.

14,800 lawsuits

[sckeener]

1 out of 14,800 lawsuits.

Gosh that sounds like organized crime....RIAA shaking down 14,800 people for money...extortion is what it sounds like to me...sounds like the RIAA should be concerned about The RICO ACT

Re:14,800 lawsuits

[fwitness]

My god I had to scroll forever to find someone that brought up this point. How can *any* single entity file that many lawsuits and not be considered as abusing the system? Doing simple math, that's like 20 lawsuits a day!!!

No wonder it takes two years for a murder suspect to stand trial, 23 months to deal with the paperwork of RIAA lawsuits, one month to pick a date everyone can agree on that ain't a holiday.

I love America, but baby, sometimes you make my blood boil.

Re:14,800 lawsuits

[AstrumPreliator]

This is mostly guess work on my part so if you have any corrections please tell me.
 
As far as I know the average settlement cost is $3,000. After 14,800 lawsuits that's $44.4 million. I don't really know the law in this area but is that $44.4 million even taxed? Or did they just make $44.4m sans some minor legal fees? And if they did just make this huge sum of money, how much of it is going to the artist who was 'starving to death' because of 'piracy'? $44.4m over 2 years would be about $61,000 a day, or about $2,500 an hour, that's a crazy $0.70 per second.
 
I could be totally wrong though.

Re:Not Good for the RIAA

[dsci]

I don't believe that a jury would convict a divorced mother of five on the crime of downloading pirated media.

Why? Does being a divorced mother of five make you immune from having to obey the law?

I'm not saying that I agree with the RIAA on this issue, but the burden of proof in civil court is "preponderance of the evidence," and has nothing to do with

1. being a parent
2. being a parent of a given sex
3. having kids
4. having a certain number of kids

Jury nullification notwithstanding, the jury must decide for the plaintiff or defense based on the evidence presented in court, not the ideology, for or against, pertaining to downloading music on the Internet.

My two cents, and IANAL, but I have spend a LOT of time on the witness stand as an expert witness.

Whatever the outcome, the RIAA loses

[EzInKy]

If the record industry loses the case then they will have no legitimacy, if they win parents will pressure their representatives to change the laws that give them legitimacy. Copyright protection is a legislated right, not an inalienable one.

She should be more aggressive

[KarmaOverDogma]

In addition to saying "It wasn't me," she should challenge the constitutionality of the law which allows the RIAA to obtain her identity and examine her (allged) bandwith use habits WITHOUT A COURT WARRANT; illegal search and seizure is inadmissable in a court of law and the constitution is supposed to protect us against this sort of thing.

She could ask the ACLU to defend her on that basis and they might very well jump at the idea.

I've always hated that provision of the law (DMCA), which allows them to just bypass the courts and hire the cheapest lawyer/firm on the block to use their very deep lawyer funds chest to threaten the average joe with massive suits and see them capitulate, regardless of whether or not they are guilty.

You can't use a badly formulated law to punish the unjust and expect complete compliance from the masses.

Further, when copyright (copywrong?) can be extended to insane lengths of time far beyond what was intended (e.g. steamboat willie) and fair use takes a back seat to corporate profits, can we be very surprised at the disrespect/disobediance thses laws are receiving?

Re:She should be more aggressive

[ZachPruckowski]

Search and seizure BY THE GOVERNMENT without a warrant is illegal and a violation of the constition. Search and seizure by the RIAA and the ISP is perfectly fine, and they certainly don't need a warrant.

I can't find my GameBoy. I think you might have it. I'll be over around 3 tommorrow to toss your house and see if a Gameboy turns up, at which point, I'll take it home with me, then sue you for something. Have a nice day, and please be a nice host and have refreshments for me when I show up.

Juries can judge the law

[Anonymous Coward]

Juries have a little used function whereby they can render a not guilty verdict by refusing to acknowledge the validity of the law itself. The concept is called jury nullification and is searchable if you want to read more about it. The high priced monopolisitic BAR lawyers guild and judges hate it, frequently threatening people in juries who even mention it.

Just another one of those things that isn't taught in US public schools.

http://en.wikipedia.org/wiki/Jury_nullification

Re:Juries can judge the law

[hunterx11]

Jury nullification isn't a legal principle--it's pragmatism in action. I certainly think that there are times when it is warranted, but it's kind of common sense that "we don't have to rule against this person if we don't want him or her punished."

Re:Juries can judge the law

[dada21]

Juries are meant to be composed of one's peers -- people from the community who know the defendant. They should not be hand picked or completely neutral.

A jury can then judge the crime, the law AND the defendant as they'll know all 3.

Re:Juries can judge the law

[takeya]

To verify, I asked my law student friend and yes, it is indeed true that the jury is allowed to judge not only the crime, but the law. A jury must not rule that "well she broke the law but she can go free because we like her," but can rule that "The law was rubbish and we are refusing to acknowledge that any setence should be issued."

This is very useful because just like when a judge nullifies a law, setting a precedent, a jury nullification is just as powerful and this would set an incredible precendent for the future of p2p and legality.

Re:Juries can judge the law

[Theatetus]

The phrase "a jury of your peers" has nothing to do with the American legal system, really. It was an English Commonlaw right that guaranteed a nobleman couldn't be tried by peasants. The only holdover I know of that it still has is that an officer facing a court martial can choose for his jury to only be fellow commissioned officers and not enlisted personnel or warrant officers.

Re:Juries can judge the law

[Majik Sheff]

The constitution says nothing about peers, only that it be a jury. The sixth amendment expands on that by specifying an impartial jury. The seventh amendment provides jury trials for civil matters (which this is), but the nature of the jury is never specified. http://www.house.gov/Constitution/Constitution.htm l

Re:Juries can judge the law

[hunterx11]

I thought we had juries so that a person's peers decided a case? There are plenty of times when jury nullification is done for all the right reasons--like Benjamin Franklin's exoneration from treason. But it can be quite sordid too, such as when obviously guilty people were let off for murdering blacks because all-white juries thought it was justifiable.

Re:Court Costs for the RIAA

[Trip Ericson]

Or, rather, can't afford it. Not everyone's willing to go into massive debt to fight 'the man.'

Re:My congratulations...

[Seumas]

I congratulate you on being the first person I've ever seen who compared illegally downloading music to rape

You must be new here.

RIAA, meet Sony's DRM trojan-net!

[gwait]

Dear Mr. RIAA,
I have an excellent idea for you: Borrow Sony's DRM trojanware, (the trojan-net is already up and running) have it illegally download songs on selected people's computers, then fly in with a juicy lawsuit!
I'm sure a few scripts could even mail out the summons automatically, with a quick link to a Paypal account in case they would prefer to settle out of court!

Re:hmmm.....

[HTL2001]

no missing step:
1. Monitor P2P network
2. set up settlement hotline
3. Sent threatening letter (something like hundreds of thousands of dolars if you go to court, a more "resonable" ammount if you settle)
4. Profit!!

Possiblity of Innocence

[EMIce]

There could very well be people getting into trouble who did nothing wrong. I service lots of residential machines and their loaded not just with spyware, but trojans and viruses that make their way into these machines through remote and browser exploits. Some these machines need complete re-installation even though I clean up all local machine and user specific startup entries.

These I suspect have been root-kitted to act as zombies or proxies. These people have no idea what kinds of traffic is running through their machines and connection. It sounds as if such people are getting sued in some instances, but probably don't the know well enough to realize what is happening.

It doesn't seem to me that a list of bittorrent peers associated with a copyrighted file proves guilt. The environment is too insecure to guarantee who the actual source is. It seems to me the RIAA should have to prove a couple things:

1) That they downloaded the file with the copyrighted name and verified that the content is actually the copyrighted material.

2) That the activity from the IP address of the peer being charged actually represents the activity of a particular machine's owner. They would probably need to confiscate the machine for this - is this feesible? Just charging the owner of a connection seems unreliable, many machines can sit on a home or business network. Can one be held responsible for hijacked traffic running through their pipe?

Where this is headed it seems is a battle over regulating net communication. The RIAA will begin to push technical mandates through congress to make the internet more "secure," which will be difficult at best without implementing lots of centralized control and monitoring. How long till we have sign our packets with keys? Then how long till "sponsored" packets become free, while others cost?

A recent slashdot story featuring Doc Searl's opinion piece, Saving the Net from the pipeholders" sum's up this position very well. It's kind of long, but but offers an insightful view of what's ahead, and is worth reading for anyone with interest in the future net as a decentralized, unprejudiced peer to peer medium.

Logic check

[MarkusQ]

the RIAA will need to show...that the infringement occured at your IP address. At that point...the burden then shifts to YOU to prove...that it was somebody else and not you that did the infringing.

I'm not necessarily disagreeing, but why single out the IP address as such a watershed in the chain of accountability that the burden of proof flips? To see what I'm getting at, what makes IP addresses so special, as compared to (for example):

the RIAA will need to show...that the infringement occurred in your city. At that point...the burden then shifts to YOU to prove...that it was somebody else and not you that did the infringing.

...or...

the RIAA will need to show...that the infringement occurred under a screen name you frequently use. At that point...the burden then shifts to YOU to prove...that it was somebody else and not you that did the infringing.

...and so forth. What's so magic about IP addresses that puts them up there with DNA?

--MarkusQ

RIAA problem fester, won't fix it - revolting

[harvey the nerd]

RIAA et al have seen the general tech trend issue coming since the 1970-80s. It's real solution is educational, market and only slightly technically based. Instead of solving and making the changes to accomodate natural desires of public they have sought to abuse and systematically exploit it. Based on my observations in other countries, I think this kind of officially sanctioned hooliganism and cronyism will end very badly.

RIAA for shame. Crows about "rights" while fueling the festering problems. 30+ yrs is enough, put up or shut up and get out. The current regime is simply an obnoxious, parasitic force begging to be slapped down hard by an angry public. I am kind of morbidly curious to see the public reaction if and when the court system fails again.

Assistance

[cffrost]

In p2pnet's interview with Patricia Santangelo, she said she's "stressed" about funds for her defenses, but doesn't have an account for donations.

However, Santangelo is listed, in case anyone wants to snail-mail her some help.

Santangelo lives about ten minutes from me. I'm going to try to round up some friends to picket and toss eggs and CDs at the RIAA scumbags on her day in court!

The RIAA better hope..

[Hohlraum]

that she doesn't use the dreaded Chewbacca defense.

        Ladies and gentlemen of the supposed jury, Chef's attorney would certainly want you to believe that his client wrote "Stinky Britches" ten years ago. And they make a good case. Hell, I almost felt pity myself!

        But ladies and gentlemen of this supposed jury, I have one final thing I want you to consider: Ladies and gentlemen, this [pointing to a picture of Chewbacca] is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk, but Chewbacca lives on the planet Endor. Now, think about that. THAT DOES NOT MAKE SENSE! (Background: Damnit! What? He's using the Chewbacca defense!) Why would a Wookiee -- an eight foot tall Wookiee -- want to live on Endor with a bunch of two foot tall Ewoks? That does not make sense!

        But more important, you have to ask yourself, what does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense.

        Look at me, I'm a lawyer defending a major record company, and I'm talkin' about Chewbacca. Does that make sense? Ladies and gentlemen, I am not making any sense. None of this makes sense!

        And so you have to remember, when you're in that jury room deliberating and conjugating the Emancipation Proclamation... Does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense.

        If Chewbacca lived on Endor, you must acquit! The defense rests.

http://en.wikipedia.org/wiki/Chewbacca_Defense (actually it was only on a google cache version)

Re:Not Good for the RIAA

[Thing 1]

An AC beat me to the meat of the reply, which is that the jurors are supposed to vote their conscience.

However, I do have something to add: a link to FIJA, the Fully Informed Juror Association.

Basically, if you disagree with the law, as a juror, you do not have to decide based on the law. You can say "not guilty" even though the prosecutor has pictures of the accused taking a toke from a bong.

Even if RIAA wins...

[dcavanaugh]

Let's assume the RIAA is 100% right, and the defendant has done everything they are accused of. The concept of damages will be interesting. I seriously doubt that the defendant made songs available for download that were not already available via P2P. The "lost" revenue is really just the money the defendant would have paid, IF they chose to buy the songs. Yahoo music service is what, $5/month? So if she paid Yahoo $5/month, she could have downloaded all of these songs (and the P2P underworld would have had all of the same songs anyway). I'd love to know how the RIAA thinks they can prove damages in excess of $5/month.

Re:Not Good for the RIAA

[EzInKy]

The jurors are supposed to and expected to vote based on the laws. That's why the judge's instructions specifically instruct them to consider the evidence and detemine whether the defendant broke the law.


From the Juror's handbook found at the above referenced fija.org:

"As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969))."


The loophole is that there is no punishment for jurors who blatantly disregard the law when considering their verdict. Therefore, jurors do have th power to decide based on their conscience, or their political viewpoint, or their mood of the day, or a flip of a coin. (Perhaps someone should set up a website describing your right and duty to flip a coin to decide a verdict - then that would make it the right thing to do!)


Jury nullification is not a loophole, it exists to remind the government that it has a fourth branch..."The People".

Damages

[bezuwork's friend]

Actually, the copyright law allows for statutory damages. That is, in lieu of actual damages, the statute sets forth set damage ranges per work infringed. The RIAA is most certainly suing under statutory damages.

The RIAA can sue for ... wait for it (it'll make you sick) ... $750 to 30K per song. That's without proving willful (intentional) action. If the RIAA can prove intent, the statutory limit is $150K per song.

That doesn't mean they'll get the maximum, but that's the values given in the US Code. See 17 USC 504.

That's why I think people cave, the possibility is out there that they will lose everything they own.

Outrageous? Absolutely. Thank our past congresscritters and Presidents for that one. Oh, and the likes of Disney and the heirs of Gerschwin, for that matter.

Assuming this really does get to court...

[TV_Slug]

I'd really hope the defendant's lawyers do a good job during the discovery process. They should be able to request all the records the RIAA has concerning their various investigations into alleged infringements, not just the cases they have been prosecuting. When they produce a list of corporate infringing IPs, it's going to seem odd that the RIAA is only going after shallow-pocketed individuals. If I remember correctly, to enforce copyright you are required to pursue all known violations in order to maintain the copyright. Maybe this case will force the RIAA to start filing many, many more lawsuits, including going after large companies as well. What happens once a Microsoft, Google, or .gov IP shows up on their hit list?

It's not piracy!

[MarkByers]

Go after the people selling the pirated music!

Just because its ridiculously expensive doesn't mean that you can call it 'pirated music'. Jeez, people these days call anything at all 'piracy'.

The correct term for this crime is 'price-fixing'.

Re:It's more significant than the common sense asp

[sumdumass]

It isn't a constitutional right it is a tort preceeding. common law if you must. It is in the same manor of how a judge can decide this law is meant to be applied in this way and thereby creating a different law all together. It is built into the fabric of the judicial system and is the basis of how a guy can shoot someone stabbing his wife and yelling your next in a state with no self defence laws and not be convicted of a crime.

Ohio for instance, untill reletivly recent, didn't have any laws pertaining to self defense. If you punched a guy that was clubbing you, you were just as guilty of asault as the original asaulter. Jurry nullification has basicaly made the asault laws unenforcable or at least weakened them to the a point were a prosecuter couln't win a case by charging a man being beaten for fighting back. In that situation, the law was deam unjust and unenforcable. This still leave someone the burdon of proving the facts were as claimed though. It isn't an out for someoen to provoke a fight and then pretend to be inocent so it can still be enforced.

Jurry nullification in this case could come in the form of you have to be certain a said person was the one actualy responcible for the copyright infraction. In a civil trial you have a lot more roo for dougbt then a criminal trial so nullification could actualy just implse stronger requirments for proof while keeping the laws enforcable for those blatently violating it. Analogies suck in these situations because you can change what parts of the laws that can be applied by the actions of the jurry. Copyright law is pretty specific in that the person violating it is the one causing harm. The store that let sold you the cds or cassete tapes even though it was likley you were going to copy somehtign doesn't get charged with anyhting. Simularly, you providing your computer to someoen else, shouldn't automaticaly mean you are guilty of somethign thye might have done or somethign that a mistake might have made people think you have done.

This will be an interesting case to watch unfoled. I'm sure the evidence and the weight the evidence carries with be questioned and it may become somethign admissable but unenforcable by the rulling of the jurry. IE, ip logs and screen names (with auto logons) are not enough to prove you were at your computer at a certain time and participating in ceretain activities or had control over those activities or if the listing of names of copy protected material actualy means the protected works were availible and the copy was actualyt being violated. (garage bands cover songs and create thier own songs with the same names and song already names and can distribute them) If the jurry negates or nullifies any of this evidence it will be hard to prove anyone did anything.