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Programmer Challenges RIAA Investigators
NewYorkCountryLawyer writes "In court papers filed today in Manhattan federal court, programmer Zi Mei has slammed the investigation on which the 'ex parte' orders obtained in the RIAA's cases against consumers are based. Armed with Mei's affidavit, a midwesterner -- sued in Atlantic v. Does 1-25 in New York City as 'John Doe Number 8' -- has asked the judge to vacate the 'ex parte' order on the ground that the RIAA doesn't have the evidence it needs to get such an order. If Doe wins, the RIAA's subpoenas to the ISP, for its subscriber's identities, will be thrown out."
Right now the RIAA is the only person talking to the judge about this case, because the defendents are all "John Doe" and thus are unable to be identified and brought before the judge.
From the impression that I gett, I think RIAA is trying rigerously to get a finding against these individuals for copyright infringement, and then get their identity. More likely, they're using these ex parte appearances (where the defendent isn't present) to get the judge to authorize them to be able to obtain the names required in order to bring a proper suit against these people.
I'd say this is pretty similar to a situation where someone breaks into your house, and leaves a very weak trail, and the cops peeter out. So, you sue the person as a John Doe, then try and use that to find out who John Doe is.
Basically, it's like putting the cart before the horse to me. They're suing people before they even know who they're suing. For all they know, they could be suing someone on their legal team, or even the judge!
I am unamerican, and proud of it!
I absolutely disagree. I'm the registered agent contact for a regional ISP and routinely receive RIAA communications regarding their allegations of offenses within our address space. Here's a few aspects of my ongoing experience with the RIAA and other intellectual property protection parties (mostly publishers in my experience outside of the RIAA):
The appropriate response is a legal one, and mind you, a legal one that has a letterhead of partner names that spans the top of the piece of paper (meaning not a small private practice, but a large firm that is enough to scare the RIAA into understanding your counsel has deep resources that can counterclaim and hurt them).
Another strong recommendation is for all smaller ISPs to provide their upstream with a letter on the lawfirm's letterhead just briefing them on your compliance with the registered agent provision, requesting evidence of their compliance, and a subtle reminder that if they ever fail to follow the law, they'll get to know your counsel really well as you recover damages from business interruption, damage to goodwill and all sorts of exciting, expensive claims.
This letter will probably cost you $300 to $500 depending on your firm, but it'll save your ass. It has done so for us at least two times when the RIAA completely ignored the law and sent its night-school, white-shoe attorneys after our upstream carrier.
Oh... and in my investigation of the John Does, I've usually found P2P running in a bit more than half the cases with parents unaware that Bearshare was loaded by their minor child, and in about a third the cases, no evidence in traffic flows of any P2P (nor any historical data from NIDS monitoring). Not that we'd ever keep such data (don't and have a policy of wiping it weekly).
The real problem with the state of civil litigation is that corporations are allow to act as a "person". It's a matter of an inequity of resources. A corporation typically has enormous financial, and legal resources compared to an individual.
The real solution is to treat corporations as the commercial organizational entities that they truly are, rather than as persons. For that matter governmental organizational entities also ought to be treated as such.
There needs to be a change to the civil standard between individuals from *proof by a preponderance of evidence* to a more rigorous standard. Proof beyond a reasonable doubt is too strong a standard a civil standard between individuals, or between organizational entities. In a civil case between an organizational entity, and an individual where the organizational entity is the plaintiff, then the *reasonable doubt* standard ought to hold.
Part of the reason for the *proof beyond a reasonable doubt* standard in criminal cases is to prevent malicious prosecution. A high standard for burden of proof in criminal cases reduces the potential for false witness to be used as a means to 'get even with', harass, or intimidate individuals. The high standard lessens the potential impact of 'frame ups'.
"Oh drat these computers, they're so naughty and so complex, I could pinch them." --Marvin the Martian
A few years ago, the US government bullied my country into making new law under the threat of a trade war.
This new legislation allows copyright holders to obtain an "ex parte" court order to enter and search private homes without informing the people living in these private homes if the copyright holder can show that it is "probable" that someone living there has infringed on a copyright. There is no requirement that the police be involved in such searches of private homes (first time this has been allowed in my country), and the law gives the copyright holder a right to be present at the search (never before have the other side in a civil case been allowed to be present during a search of a private home in my country).
This has regularly been abused. In very few cases the "evidence" found in such searches has ever been used in a court of law. Instead most cases have been settled before court by the people searched in fear of the copyright holders releasing information on what was found during the search (legal or not).
I used to have a hard time understanding why some people were thinking the US was imperialistic and why the US had to be opposed in any way possible, but no longer.
Tomorrow it may be my door that the US entertainment industry kicks down.
Does somebody want to take a guess if I still like the US?