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."

Comments

IMPRESSIVE

[Anonymous Coward]

but probably not effective, young master.

SILLY HU-MAN

[Anonymous Coward]

You will be crushed by RIAA! Rocket-subpoena arms-- ACTIVATE!

ex parte

[Black Parrot]

Here is an explanation of "ex parte".

Re:ex parte

[eatmadust]

or here on wikipedia.

Re:ex parte

[Anonymous Coward]

or here or here or here or here or here or here or here or here or here.

Re:ex parte

[geekoid]

Thanks.

Re:ex parte

[Heem]

or here

Re: ex parte

[Black Parrot]

> or here or here or here or here or here or here or here or here or here.

You can also find a lot of links about it on Slashdot.

Re:Ex Parte

[TheHawke]

A Big Blow? It might be the Mike Tyson-style knockout punch that the defendants have been looking for. It will establish a precident for the rest of the "John Doe" lawsuits that the *AA's have slathered all over the nation.

About bloody time someone found a way to cripple these borderline-illegal 'suits once and for all... That is, IF the judge sees it the right way.

Re:ex parte

[Husgaard]

You US people are lucky that ex parte decisions are only allowed for giving the identity of someone with a certain IP address.

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?

Re:ex parte

[Eccles]

And you wonder why so many Americans seem so fond of the Second Amendment... (Not to mention the Fourth, of course.)

Re:ex parte

[Ossifer]

Sounds like a Danish problem to me--why blame the US? "Under the threat of a trade war" with an E.U. country? That happens every day...

Re:ex parte

[sd_diamond]

A.K.A. "The Recursive Slashdot Effect"

Re:ex parte

[Adams4President]

Yeah that seems to be a popular tactic of the tyrannical leaders of certain third-world countries these days. Pass a law that gives said leader more power and blame the US for "forcing" him to do so.

Re:ex parte

[symbolset]

You're fixing the blame in the wrong place.

The evilness that is the RIAA may have spawned here, but it is no more American than BP.

Corporate monsters are a side effect of liberty and capitalism. Yes, they do rise and must be slain, but they are easier to quell than the monsters that arise under other systems.

The real America and real Americans want for you the same thing they want for themselves: the liberty to do as you will so long as it harm none, the opportunity to provide for yourself and your family, the security of a stable society in which to ply your trade, a government that serves you rather than the reverse, a little fun now and then.

If our implementation differs from the ideal, please forgive us. We're working on it. Look around and you'll seen that others have fared not so well.

Re:Ex Parte

[boarder8925]

That is, if the judge sees it the right way.

In the modern "justice" system, "the right way" has become a synonym for "whoever has {more/the most} money and/or connections."

:/

Re:ex parte

[cnerd2025]

Sorry for looking out for our own interests. Oh, wait, Denmark and the EU does the same thing. And the threat of "trade war"? Is Europe really so arrogant it thinks it has some "God-given" right to trade with the US? We can trade with or without whomever we wish and cease at any time.

If you read even the description, you'd realize that the "ex parte" order is really "ex parte Doe", used to execute the Writ of Habeas Corpus. "Ex Parte" is generally illegal in the US, and should be. This "ex parte Doe" means that the Doe, in this case the accused, believes that he or she is being held without legal cause. "Ex parte" basically means that one party is using an unfair advantage over another and thus justice is not being served.

I'm no fan of the entertainmaint industry. However, keep something in mind, friend: every state, be it municipal, regional, national, or supranational, has the right to look out for itself. The EU sure does. If you have beef with how the US executes trade, then do something about it. We aren't holding a gun to your head to force something upon you. You elected the leaders who passed your laws. We didn't set up some revolution in Copenhagen or Brussels to execute our will. Your government chose that trade with the US was more important. If you dislike what your government does, then elect new people. And if you dislike the entertainment industry, then don't buy their things. You didn't make any coherent argument against them. In the US, the RIAA oversteps its legal rights, and therefore legal injunctions must be placed on them. But they are a trade union, and they do have some legal rights. Your arguments place them in no violation of yours or anyone else's rights, nor the overstepping of their rights.

Now you make some very very incoherent arguments about the US "breaking down your door". I don't know how it works in Europe, but in the US, the police run all searches and seizures. And issuance of search and seizure warrants are Ex Parte, for good reason. Entertainment industry thugs don't just break and enter, searching for "copyright violations". That is strictly against the US Constitution.

Please, I'm tired of people blaming the US for this or that or the other thing, when the real problem lies in the peoples' own country. We have messed up lots of stuff, but to bitch at us just means that you're too lazy to do something about it.

Re:ex parte

[jdbartlett]

Paraphrased:

My country, which exists but prefers to remain anonymous for the sake of its personal safety, was told to make stupid laws by your country. Your country said they'd stop trading with my country if my country didn't make stupid laws. So my country made stupid laws and it's all your country's fault.

Doesn't it sound a little paranoid, even spurious, to suggest the USA threatened another country with a "trade war" over said country's refusal to pass a completely ridiculous law that (since copyright is subjective to state) wouldn't even serve benefit to the USA? If it happened, your country (which, I suspect, is not Denmark, as some have thought, but is actually called The United [Until We Were Threatened And Were Told Not To Be United Anymore Because It's A Copyright Infringement, Even Though It Isn't, That's How Bad Your Country Is These Days] States Of My Country) is very silly. I suggest you move to a country that respect your privacy a little more, such as the USA, or, if you intend to break copyright, France.

Re:ex parte

[Mr. Slippery]

Corporate monsters are a side effect of liberty and capitalism.

Corporate monsters are a creation of governments that issue charters. Allowing governments to create these monsters is not a "side effect of liberty".

Re:ex parte

[Scarletdown]

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)

Fuck. Here in the U.S., a search like that without a police presence and without a warrant would probably be considered breaking and entering or home invasion, and would probably result in the intruder getting a couple 9mm pieces of lead implanted in his body.

Re:ex parte

[pembo13]

The US is supposedly the most powerful nation in the world.

Re:ex parte

[darkmeridian]

Most motions are made to the court with notice to both sides. Non-moving party gets to respond. But in certain circumstances, such as when you do not know who the other side is yet, you can make a motion with the court without the other side present or aware, or ex parte. This can be unfair at times, because you can get a restraining order or the like to accompany your ex parte motion. Hence the attorney and the moving party has an added obligation to tell the truth and disclose things that may stop them from obtaining an order. Normally, a lawyer only has to argue his case. In ex parte situations, he has to make the judge aware of both sides of the case or it can be later challenged. I guess that is what's happening here.

Re:ex parte

[inc_x]

Yes, I do indeed. Because despite all the second amendment puff talk, I don't see any organized armed resistance in the US against illegal police searches or government agencies who are overstepping the law at the direction of the US president. I do read about the occasional meth addict shooting at the police and/or his neighbours, I have never seen that having any positive effect though, such person tends to end up either getting shot himself or spending 20+ years in jail. Can you explain me how the second amendment helps americans?

Re:ex parte

[Baki]

I sympatatize with you. However, such law has not been implemented in many EU countries.

Fact is that the US regularly forces countries around the world to "respect" US laws under threat of economic sanctions. Of course the US is free to choose with whomever it trades.

The problem is that many countries don't have the guts to do without US trade. Many are too small and/or poor to risk that.

For the EU however the case is different. I think it would harm the US just as much as the EU if trade between the two were cut off. There is no reason for the EU to let itself be blackmailed into adopting US interests out of fear for trade sanctions. I can only hope that one day the US threats will become void, since the rest of the world will happily trade with each other and not need the US at all, i.e. the situation reverses and the whole world except the US have trade, and the US becomes isolated and poor.

Re:ex parte

[homer_ca]

"a completely ridiculous law that (since copyright is subjective to state) wouldn't even serve benefit to the USA?"

The entertainment industry is one of the few export industries that the US still has. It doesn't take a huge leap in logic to argue that strict enforcement of copyright in foreign countries benefits the US economy. Forget about rights, there's too many dollars at stake here.

Re:ex parte

[TallMatthew]

Organizing an armed resistance against the police or the US government is an easy way to make your life go bye bye, either via death or imprisonment. Throwing a shot at an elected official or law enforcement is frowned upon in these parts. Revolution is a romantic idea, but in practice it's brutal. There are no soundtracks playing in the background, no Mel Gibson, no speeches. Just a bunch of people getting smushed.

I like it here, but I like doing my thing as well. I'll do it somewhere else if I have to but I don't think it's going to come to that. Unless Dick Cheney is our next president .... shudder. One would hope they could put an end to recent overstepping of the second amendment in the court of public opinion, the press or even in the political arena, where it's supposed to be controlled. If they don't, there will be decisions to be made, but the backlash has been significant enough so far to expect some curtailing will take place.

Re:ex parte

[KyrBe]

You forgot one very important factor. The US, or at least its present government, consistently and demonstratably abuses its world position.

And, although this may not be the case, from OUTSIDE the US your government is also seen to be doing this at the request/for the benefit of big business and not the people (isn't US democracy supposed to be founded on the principle of "government of the people, by the people, for the people"?)

So I may not be impressed by what the UK and EU governments do (and no they're not who I voted for!). But on the other hand, I don't appreciate the US and its special interests, repeatedly using their position in the world to force our hand.

And don't ask me for supporting examples and justification, just have a look at some non-US media and see what's happening in the rest of the world for once...

Re:ex parte

[thebdj]

Ok here is the most recent info I found:

agricultural products (soybeans, fruit, corn) 9.2%, industrial supplies (organic chemicals) 26.8%, capital goods (transistors, aircraft, motor vehicle parts, computers, telecommunications equipment) 49.0%, consumer goods (automobiles, medicines) 15.0% (2003)

The entertainment industry would fall into that 15% for "consumer goods", which means that over 85% of the US exports have absolutely nothing to do with American entertainment. Don't forget, many countries think our music sucks about as much as we think theirs does. As a side note, by the 2004 numbers the US is the 2nd largest exporter of goods at $795 billion. Germany is the only single country who exports more. The EU exports $1,109 billion, but they are not a single country, but if you did count them that makes the US 3rd.

Despite what you might think the US still makes a good chunk of change on its exports and not so much of it would be the entertainment industry. I think what you mean is that the US imports more then it exports, which is quite true, but this is largely because we are a huge consumer. I think the only category listed above for which we are considered a "net exporter" is the Agriculture industry.

Re:ex parte

[cnerd2025]

"Abuses its world position."

I am no fan of Bush and his cronies. In fact, I really hate the man and his regime. On the other hand, everyone thought Saddam had WMD: the UK, France, Germany, the US, and Australia to name a few. Now Bush is an idiot and said we were invading because of WMD. The then-director even told the President, "its a slam dunk!" Of course, WMD weren't really there. Then the idiot lied again saying the war was for "spreading democracy and freedom." Not only were there no WMD, but Bush couldn't care less about "spreading democracy." Then he decided shutting up would be a good idea, and theories about oil and such started spreading. Yet no one has really understood why we went to war: to stop radical Islam. What's the result? Well, Saudi Arabia has started backing up its lipservice to the West, Libya has taken responsibility for several terrorist acts (including Pan-Am 103) and denounced its WMD program, Iran is scared, Syria is ducking and covering, and Lebanon is having a chance at its own government for the first time in a long time. Iraq is also improving, putting its former dictator on trial, and has completed a highly successful election. In Afghanistan, the government is no longer oppressive toward women and is making strides toward rebuilding. In other words, the US strategy has been successful. Our leader is still an idiot.

As for external media: why would I want to listen to media more corrupt than the US. I did a little benchmark test after Hurricane Katrina. I couldn't believe the European media's reports. They were nearly reporting that the homeless were eating babies. There were definitely looters in post-storm New Orleans and such, but the European media exaggerated so much that I cannot respect them at all. Our media is terrible, but I'd take it most any day over European media.

As for the business, the present government is completely under the covers with business. But that is the beauty of democracy. In another three years someone new will be taking office and this person will most likely be less favorable toward business. There is always balance. The way the US system is set up, majority rule, minority right is ensured by default. European systems are much less so. Bottom line: you have to take responsibility for your own problems. In the US I would like to see a change in this USA PATRIOT Act garbage. I'm not blaming Afghanistan for making it necessary or anything of that sort. It just needs to be changed and we made it so we need to fix it.

Re:ex parte

[sg_oneill]

So when Australians get shitted off because the US strong armed us into accepting some majorly shitty copyright laws or face more trade barriers on our primary industry, thats just us having a tyranical government. Righto.

*Slaps self across face* Dont respond to trolls.

Re:ex parte

[bran6don]

or here

Re:ex parte

[Husgaard]

Given the number of responses this gave, I'd better give a few more background comments.

This is in Denmark, as some have guessed. If you understand danish, you can find the legislative process for this law change documented here. Unfortunately the background for this law change (Betænkning nr. 1385/2000) is no longer online, and this is what best illustrates the US government pressure.

Basically the US government complained in the WTO that we did not obey TRIPS Article 50, 1 (b) as we did note have Anton Piller order-like legislation that could be used against individuals suspected on infringing on copyrights, although all legal experts said we were fully compliant. When the US government threathened to escalate this into trade restrictions against Denmark our government felt forced to propose this law change although they knew that we did not violate TRIPS.

This incident changed my view on the US. I have nothing against the US people, but I have developed a strong dislike for the US government (no matter which party in your two-party system is in power), and I now have a better understanding of why people in some parts of the world think the US is imperialistic and want to do terrorist action against the US.

Personally I don't want to retaliate against the US.

And I don't think it is needed. Given the way things are developing in the US and in the rest of the world, I think it is just a matter of time until the US has fallen so much technologically and economically behind the rest of the world that they will be unable to bully other nations like they did to my country. This is sad for the US people, as they have to suffer under a government by the corporations and for the corporations in a two-party political system that is only marginally better than the communist one party system.

Re:ex parte

[Procyon101]

Of course no sane person is going to directly attack the US government with handguns. Of course that is silly.

The purpose of the armed populace is as a deterrent. The government cannot suppress the population by force without armed conflict. Armed conflict against their own homes causes dissent amongst the military, splitting it into rebellious factions and leading to greater conflicts, eventually overthrowing the government by it's own military since militia siding with the oppressive government face hostile evironments even without direct conflict whereas the populaces militia is supplied and reinforced at every turn. Because this is such a stupid position for a government to get itself into, it would never do so as long as the populace remains armed. So the point of ownership is not to fight the US military head to head, but to ensure you never have to.

Re:ex parte

[drinkypoo]

Or here.

Re:ex parte

[dfjunior]

Given the way things are developing in the US and in the rest of the world, I think it is just a matter of time until the US has fallen so much technologically and economically behind the rest of the world that they will be unable to bully other nations like they did to my country. This is sad for the US people, as they have to suffer under a government by the corporations and for the corporations in a two-party political system that is only marginally better than the communist one party system.

Husgaard, is there a danish word for Schadenfreude?

Re:ex parte

[Ossifer]

Pardon my American ignorance, but, isn't Australia a democracy? If you don't like the laws enacted by your own democratically elected leaders, then elect news ones!

Re:ex parte

[Ossifer]

The purpose of the armed populace is as a deterrent.

No it wasn't. The purpose was to defend the colonist from Indians (nowadays called "Native Americans"). The British didn't want the colonies to be self-reliant in defense, and thus dependent upon the crown for their protection, so they banned weapons and locally-formed defensively militias in various ways.

This is the reason behind the second ammendment of the US constitution--not some sort of assumed purpose to government abuses.

Re:ex parte

[Procyon101]

This might be a sole reason for a clause written pre-revolution, but the constitution is a post-revolutionary document written by a new government that just rose up against it's previous government through the use of 1) A rapidly formed and often self-armed continental government 2) No small use of conscriptionary forces and 3) Individual unorganized small guerilla forces. If we look at the mindset many of these people had as being exemplified in the Declaration of Independance a few years previous, they believed that in EVERY government there comes a time that the populace must rise up by force to reform it. With these facts in mind, I severely doubt that the only reason the fledgling government wanted to ensure that there remained the right for the populace to arm themselves was to protect small communities from the occassional indian raid (although it might be a considered tertiary benefit).

Additionally, most of the maurauding indian raids were not a product of the indians, but rather the alliance of major tribes with the British in the days leading up to the war and through the war of 1812. The Americans weren't relying on the British to defend them, as the indians were mostly British allies anyway.

Re:ex parte

[Ossifer]

"Our [Danish] government felt forced to propose this law change"

So the Danish law was changed by Danes, then? Democratically elected ones? [See my comment to the whining Australian above]

Did you ever consider that your own Statsminister is scapegoating the US in the same way you are?

Finally, if your last comment about the US falling behind holds true, then they could still bully Denmark as the Danes are falling farther behind the US... Ever compared unemployment rates? (The total unemployment rate, not the one Mr. Rasmussen's Social Democrats are trying to make you believe)

Re:ex parte

[Ossifer]

The basis for the second ammendment was to allow states to form defensive militias, not to act as a threat to government. May I suggest you take a gander at the Federalist Papers?

Secondly, the constitution predates the War of 1812.

Re:ex parte

[Procyon101]

The Federalist Papers do use the ability to form defensive militias as a strong argument for an armed populace, but they also have a solid argument for an armed populace in order to defend against domestic injustice.

"Concerning Dangers from Foreign Force and Influence For the Independent Journal" describes their unity through the joint use of arms in rising up against their oppressive government.

"The Insufficiency of the Present Confederation to Preserve the Union" describes how the use of force against an unarmed populace to invoke rule against their will is largely ineffectual, and argues for the constitution on this ground.

"The Insufficiency of the Present Confederation to Preserve the Union" describes the wisdom of the Greeks in taking up arms against the Persians, but their folly in not rapidly instituting a reformed government.

But the death knell to that argument, and the current Supreme court's interpretation of the second amendment based on their divining the intent of the authors, comes from Hamilton in his paper, "Concerning the Militia" where he states explicitly that the best defense against foreign invasion is a standing army, and the best defense against a standing army being used against the people by a corrupt government is a well armed populace, allowed to arm themselves at least as completely as the standing army itself.

"But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it. This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

Re:ex parte

[ReverendK]

Sorry, but thebdj misunderstands how the entertainment industry, and particularly the music biz, actually works when it comes to "exports." Of the "Four Families" of the recording industry - Sony BMG, Warner Music, Capital EMI and Universal - only Warner is US-owned. The other three major players are conglomerations of Japanese, German, French and British corporations. Domestic (US) CD releases are only "exported" to other countries on a limited basis. However, the major labels all have corporate subsidiaries in Europe, Asia, etc and if an artist's work is deemed sufficiently exploitable (i.e. it will sell), it will be released under the umbrella of the subsidiary. Therefore, even if an album by an American artist is recorded in a studio in LA and released by a "US" label, it would not be counted as an "export" when released in the UK by a label subsidiary. By the same token, when a Coldplay album is released by EMI in the states, it does not count as "trade" with England. Also, the copyright cartel in the US had a law passed years ago that prohibits the importing of sound recordings from another country if a domestic release is available, thus ensuring that consumers would have their choices limited to what the Four Families deign to release stateside. As for thebdj's comment that "many countries think our music sucks about as much as we think theirs does," I won't argue an obvious statement of opinion but rather point out the fact that US artists regularly (and successfully) sell CDs and concert tickets in Europe and Asia while European artists have also made a good bit of money in the United States (ever hear of the Beatles, Led Zeppelin, Pink Floyd, Coldplay, Radiohead, etc?) www.mondogordo.com

Re:ex parte

[gevantry]

Now that is ridiculous. If you really have such a law in your country, it sounds like you need new leaders--at least new representatives with enough character to tell the US to get lost. You also get the EU to back you up by telling to US to piss off. You need to be mad as hell at your own leaders first.

Re:ex parte

[Zeneris]

Bullshit Votes mean nothing when the populous is hoodwinked or more accurately apathetic because the politicians say one thing at election time then after election, bring in new stuff the voters never agreed too! Most politicians seem to care more power than the general populous (they should serve), so they will add in as many restrictive measures as they can find convenient excuses to get away with, common excuses are terrorism, extra-national legislation, other countries demands and loud trade lobbies e.g. US and other Corporations, sometimes even this is too much for some wiser politicians and the measures get at least partially derailed! e.g. the (illegal) invasion of Iraq, so that the UK and USA had a live testing ground for military weapons, got favourable access to the oil, and got lucrative infrastructure contracts, all at the cost of British and US soldiers lives, the lives of Iraqi civilians, and a massive cost to the tax payers in the UK and USA! e.g. the arrogant attempt by US and international media interests to corrupt the already ridiculous data retention measures proposed by the EU. e.g. the lobbying by mainly US corporations to bring in bogus software patent legislation across the EU. No choices about these abuses was offered to the general populous in any of the EU countries (to my knowledge). In the UK I have more confidence in the House of Lords (a check to the House of Commons) making sensible decisions, because they are not chasing power, than the current elected government! For F**k sake, Tony Blair's wife had to stick the boot in recently, because he is such an.

Re:ex parte

[jimdouglass]

Well said. Blame the US for everything is surely the easy way out. Had not the evil US stepped up back in the 1940's our Danish friend would be speaking German as his primary if not ONLY language today.

Re:ex parte

[bigpicture]

Well yes, the US puts a gun to everyones head, are you really that naive? The US tries to force it's values and political views on countries that it trades with. The transactions are never totally business, where it is dollar for dollar exchange deals. Like the Sadaam deal, "we won't buy your oil, nor will we let anyone else buy your oil, unless you do this, and this, and this. That's not business, that's blackmail, which I believe is illegal in the US. The US does all international trade this way. I have seen the US break deals with countries that were originally negotiated per the terms of the WTO. They recognize no other authority but themselves. But that is all about to change!!! The EU is a larger economy than the US now, and shortly China will be a larger economy than them all, with a more powerful military. How will the US deal when they will be forced to recognize other authorities? "When the gun is to their head" which will be in not too many more years. Russia, the second largest oil producer, is setting up to control who it will sell oil to, the Middle East is doing the same. China is a big big customer, so "US piss me off and you will get no oil" is coming. And the US will not be able to walk in and take it, like they did in Iraq. You reap what you sow.

Re:ex parte

[Cardinal Biggles]

As a side note, by the 2004 numbers the US is the 2nd largest exporter of goods at $795 billion. Germany is the only single country who exports more. The EU exports $1,109 billion, but they are not a single country, but if you did count them that makes the US 3rd.

That doesn't seem right. Germany is the EU's biggest member country, so if you'd count the EU you wouldn't count Germany as a single entity in that table. The US would still be second in that case.

Ex Parte

[Shadow Wrought]

IANAL, but have been paralegalling for a few years now. Ex parte is the term used when one side in a case speaks with the Judge without the other side being privy to what is said.

If he can get this tossed it would be a pretty big blow to the RIAA's case.

Re:what the fuck

[MightyMartian]

is the summary trying to say? it's nonsensical gibberish

Ah, young Padawan learner, you have discovered a truth. Now put down your light saber, it is time to teach law, so that in time you to will be paid $200 an hour to write word salad.

Re:Yea that will work

[dark404]

except that this is a civil case, not a criminal one, and a motion for discovery not a request for a warrent.

Re:what the fuck

[Krach42]

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!

down with Media Sentry

[E8086]

Chances are the majority of accused John Does are guilty but there's always the chance of a false positive(Mythbusters drug test), incorrect data reporting, creative accounting practices, wait that was Enron, I mean creative data reporting, MediaSentry: if we add to this big list of shared songs to the small one we just found the RIAA will may us more money.
I don't recall hearing the results of any challenge to their data mining, but if they go with the closed source/proprietary code/industry secret response I hope it results in all their "evidence" being tossed.

unfortunately the pdf link is broken or has been slashdoted

Re:down with Media Sentry

[Anonymous Coward]

the majority of accused John Does are guilty but there's always the chance of a false positive

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):

• ignoring the registered agent requirement: In almost every single case since the change in the law, the RIAA has ignored the registered agent provision. They are required to go through this party and follow certain notification requirements to comply with the law and obtain their ability of recourse by demonstrating this compliance. They repeatedly and intentionally ignore the law. Typically, they will notify helpdesk or receptionist employees at the company via telephone, or notify our upstream ISP with a demand for compliance inconsistent with the law's specifications (e.g. they will file a suit within two business days if the address in question is not shut off).
  
• They do not provide evidence required by the law. I've been repeatedly demanded to shut off a subscriber, name the subscriber and provide contact information (name, billing address, phone, and other items that would clearly violate Gramm Leach Bliley if there wasn't legal grounds for giving it out) on evidence like this: "We've discovered IP address 192.168.3.3 has copied our intellectual property." Name of file? Evidence that the filename is actually property-holder's IP and not just another file with the same name? Evidence that the alleging party holds the IP rights to this property? Time/date and details of the event? (I've *yet* to be given timestamps from the RIAA - wtf? Somebody give them a dollar so they can buy a freaking clock).
  
• Threats that exceed legal authority and actually may encourage legal recourse when a response is made notifying them of their obligation to comply under the law. I've even had RIAA attorneys contact our upstream and notify them that we "hadn't complied" (with a noncompliant request with zero documentation, ignoring the law) and the upstream was given hours to shut our connection serving 1/3 of a state off or face lawsuits.
  

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).

Re:down with Media Sentry

[freakybob]

Finally, a clear account of what the RIAA does that isn't biased, gossipy hearsay. My god, they really are assholes. Your ISP rocks.

Re:down with Media Sentry

[Almost-Retired]

unfortunately the pdf link is broken or has been slashdoted

I even changed the prefs in ff1.5 to use acroread, version 7 on this linux box as opposed to the default of ggv. Acroread was a bit more imformative in that it said the file was not a supported filetype, or that it had been sent as an email attachment and not properly decoded, meaning the mimetype received wasn't matching.

In any event, I've sent the site managers a request that it be fixed.

--
Cheers, Gene.

Re:down with Media Sentry

[TykeClone]

They do not provide evidence required by the law. I've been repeatedly demanded to shut off a subscriber, name the subscriber and provide contact information (name, billing address, phone, and other items that would clearly violate Gramm Leach Bliley if there wasn't legal grounds for giving it out)

Are ISP's covered by Gramm-Leach-Bliley?

Re:down with Media Sentry

[eric76]

I believe that the "registered agent" is a person to contact to have copywritten information removed from a computer owned or otherwise control by that person's organization.

If a customer of the ISP has the material on their own computer, not the ISP's computer, I don't understand why they would contact the registed agent. Maybe it's because that's the only name and address they can readily identify for a person at the ISP.

Re:down with Media Sentry

[Unknown_monkey]

You're using the same flawed logic as the **AA's. You're assuming that since they claim that the people have commited the infringement that they must have. The burden of proof is on the plaintiff. The defense has the opportunity to defend but the best defense can sometimes be based on the fact that the plaintiff may not be able to prove the allegation based on a preponderance of the evidence. Since MAC addresses and IP's can be spoofed and hijacked and even firewalls can be penetrated, unless there is a credible witness or a video showing the john doe committing the act of copyright violation, then there are some severe holes in the plaintiff's allegations. Just because a computer on a sharing network says it is my computer that does not definitively show that it is my machine. My cell phone can be cloned, my mac address can be spoofed, my email can be spoofed, my machine could be a zombie. The reason that the majority of the people sued have settled is the monetary loss just in defending the lawsuit can bankrupt the average american and people are caving because they can't afford to defend themselves against a major industry representative that's willing to funnel costs into a deductible legal expense vs the mom and pop doe that have to choose between a settlement or sending junior doe off to college.

I think that next week we'll see the BMG settlement enter into the Enron trial proceedings. My guess is that the defense will contend that the Sony rootkit was possibly installed on their computers, resulting in their accounting software reporting music company profits instead of the actual profits that Enron may or may not have had.
This resulted in the senior management relying on data that while it may have been incorrect, they had no reason to suspect it and should thereby recieve a complete download of an album from 1 of 200 (my goodness, I'm betting that 198 of them will be in the public domain and the other too will be Buck Owens' Greatest Hits and Buck Owens with AC/DC on "Dirt Road to Hell". In turn they will not only go free, but get some great Tunes!

Re:down with Media Sentry

[Sancho]

Exposition: I am a network security analyst for a university. We have a group that solely handles "incidents" such as copyright infringement, spam notices, etc. That team delivers (and probably filters) incidents to the security group, who then scan the firewall logs for any evidence of network activity with the intersection of the timestamps, IP, and ports reported. We then return that information plus the name of the alleged infringer to the incident team.

I don't know if the RIAA uses multiple firms or if the incident team filters out the infringement notices, but I have never once received a notice without a timestamp. The notices I receive have the IP, timestamp, ports, p2p network, and infringing filename. We occasionally get the IP address that detected the infringement, too.

This tells me one of two things: 1) You're exaggerating or outright lying, because every notice I receive has the appropriate information.
or
2) The incident team returns notices which do not include the necessary information, in which case your ISP could do the exact same thing.

Re:down with Media Sentry

[IOOOOOI]

This is great information and I hope to see more posts like this. I hope that readers comprehend it, verify as much as possible from other sources, and discuss it at the dinner table in terms that everyone will grasp. Teach (but don't preach) those closest to you the facts and why they worry you. If you can inspire just one person, s/he may take the topic to school, work, etc.

No offence to the parent, but proving/supporting a point on /. won't make a damn difference. Challenge anyone who advocates these arguably unjust practices (diplomaticaly of course), and for the love of Zeus, don't let these idea's 15 minutes of fame be in a damn web forum.

Re:down with Media Sentry

[jekk]

Would you be willing to say what ISP you work for?

Or, alternatively, I'm looking for an ISP. After reading your post, I have significant respect for your opinion on the matter. Is there any particular ISP you would like to recommend?

Re:down with Media Sentry

[Anonymous Coward]

That's because your incident team probably bins the ones which don't follow the basic rules, otherwise as a university you'd be dealing with something like 100-500 notices a day. (But yeah, none of the notices I've seen actually follow the DMCA to the letter.)

There are several different contractors handling this. For example, BayTSP and MediaSentry both handle automated (yes, they're automated or at the very most click-monkeyed with no verification) takedowns. But so far, only "evidence" from MediaSentry has been used to file lawsuits.

It's worth pointing out that if you look at the connection logs, you will almost certainly NOT see a connection from the mentioned IP address, to the accused IP address, or indeed, any attempt to download the file. This behaviour is relatively consistent for some scanning bots. (Be aware, however, your network, as a university subnet, will be specifically targeted by one or two distinct scanning bots which may have different behaviour; it depends on if your university is being specifically targeted by the RIAA or MPAA. They are very aggressive against universities, because they want to make examples of students to frighten the rest, and to possibly weasel in an ill-conceived business deal in the process.)

Upstream nodes are "believed" by most of the RIAA's contractors' sniffers, and they make no attempt to verify the information; they believe the server, or the nodes to which they are contacted.

This is well-known among some circles. You will see the occasional confused netadmin on Full-Disclosure wondering about it, for example.

Not all the fake files out there are RIAA/etc (MediaDefender, Titan Media Group, and formerly Overpeer but no longer) fakes. Some individuals are running honeypots with which to identify the sniffers' IP addresses and trap the sniffers by posing as legitimate supernodes/servers/DHT peers and feeding them false information about other IP addresses, which might not even be running a file-sharing application. By and large this doesn't affect normal users, because normal users don't keep hopping between a limited group of IP addresses, joining and rejoining the network and doing nothing but issue searches... but it's like a minefield of fakes for the scanning bots to wade through.

Given this active targeting and poisoning of the evidence along with virtually no human oversight of the scanning bots, you might be surprised to learn that the false-positive ratio of the takedowns could be much higher than you might expect.

Even if they do connect, I've never seen them download the whole file; typically 64KB from the beginning. (Probably a holdover from when the scanning bots exclusively did Kazaa.)

Re:down with Media Sentry

[smallfeet]

> They contract out their infringement-detection

So you are saying they should not be held accountable for the actions of their contractors? Gee, maybe they should just hire the mob to go around and break peoples legs then.

It doesn't work that way, the medium IS the message and if they allow bad people to work for them, then they are themselves bad.

Re:down with Media Sentry

[jonwil]

If the RIAA followed the letter of the law, maybe they wouldnt cop so much flack for all their lawsuits.

They would have actual evidence that machine x was serving file y (and that file y IS actually something they hold the copyright to) at time z which would be presented to the ISP (who could take whatever action is appropriate, either handing over the information or telling the RIAA to get a court order which would be much easier if they have proof of the flie sharing)

As for the issue with kids loading p2p apps like bearshare and such, maybe ISPs need to offer a service to customers where (with customer approval), the customers accounts can be locked so that p2p apps wont run on them. (which would mean that parents could tell the ISPs to lock that out and stop their kids doing this stuff). This would work in the same way as the telcos who offer call barring that lets you prevent access to premium rate numbers (900 numbers etc)

Re:down with Media Sentry

[ZorinLynx]

Are there any databases of the networks/IPs these scanning bots operate from? It would be nice to simply add deny rules for these networks at the university's border router; after all, they're scanning your network without permission; you should have the legal right to block them wholesale...

-Z

Re:down with Media Sentry

[rgriff59]

A few points before you jump on the "I hate the RIAA bandwagon."

1) They contract out their infringement-detection. This means that it's not the RIAA who isn't conforming to the law, it's the contractor. This is like getting mad at the telemarketer who calls you instead of the company that employs them, or the company which gave them the contract to sell their product.

No, actually this IS getting mad at the company that gave the contract. Your argument seems to clearly justify jumping on that bandwagon.

Re:down with Media Sentry

[Sancho]

Intent has a huge impact on it. Paying someone with the intent that they break a law is illegal. But if you pay someone to do a job and they perform crappily, and break a couple of laws in the process, your accountability is minor if any at all.

And anyway, my point is that the RIAA isn't the one failing to comply. People make them out to be these ginormous assholes--and maybe they are--but don't ascribe things to them which they did not do.

Re:down with Media Sentry

[General Fault]

Ive been wondering... When the RIAA copies the files off of a computer in an effort to show infringement, aren't they breaking the law when they copy the mp3's generated from music that they did not produce (made by other record companies)? That is to say, If they copy 100 mp3's off a computer and analyze them only to find that 50 of them are copied from music that they produced, doesn't that mean that they have illegally copied 50 songs? Perhaps if this is the case, then a defendent or an ISP such as yourself may be able to use this as a tactic to get the RIAA off of their back.

obligatory disclaimer... IANAL. Duh.

Re:down with Media Sentry

[Ahnteis]

Yes. There are also products meant for personal computers that serve as simple firewalls blocking all (or some) traffic from IPs in the database.

Protowall and PeerGuardian are two that spring to mind, and I'm sure you can find links to the database they use from there.

Re:down with Media Sentry

[StuartLaJoie]

As for the issue with kids loading p2p apps like bearshare and such, maybe ISPs need to offer a service to customers where (with customer approval), the customers accounts can be locked so that p2p apps wont run on them. (which would mean that parents could tell the ISPs to lock that out and stop their kids doing this stuff). This would work in the same way as the telcos who offer call barring that lets you prevent access to premium rate numbers (900 numbers etc)


When an ISP starts censoring or traffic shaping of that sort, they lose the safe harbor protections provided by the DMCA. At that point, they become liable for copyright violations on their network. Not something your average ISP wants.

Re:down with Media Sentry

[Technician]

We occasionally get the IP address that detected the infringement, too.

Please, Please post it. I would find it a valuable addition to my hosts file.

Re:down with Media Sentry

[devilspgd]

However, if you pay someone to do a job, they do it poorly, then you hire them again, you can no longer claim ignorance about how they operate.

Re:down with Media Sentry

[Sancho]

Yes, I'm positive that the RIAA micromanages their contractors such that they know when they break the law in their subpoenas. That's probably why they contract out in the first place.

Also, you don't know how long the contract is for or if bad firms /are/ renewed, do you?

Re:down with Media Sentry

[devilspgd]

I don't know, no.

However, I have received poorly formatted DMCA requests from one lawfirm several times over the space of 9+ months, all of which were missing information (one time the email template had a spot for the offending URL but it was blank), so I can presume that they're not changing lawfirms as soon as one lawfirm shits their pants.

The term of the contract isn't important, if a company isn't living up to their contractual terms (or is behaving illegal), that's generally sufficient to terminate the contract.

*shrugs*

(And yes, I am a small webhost, and yes all of these complaints were legitimate in that they were referencing copyrighted materials)

documents

[hylander_sb]

Any mirrors of these documents? I'm getting empty files on their site.

Careful about the ex parte whooping

[TheSkyIsPurple]

The ex parte orders are being used to figure out who exactly to sue... with out them there's no way anyone would be able to have any sort or recourse since ISP's tend not to share subscriber info without a court order. They could require that each ISP be formally sued for the info, in which case they have to come in to court... RIAA wouldn't have much of a problem with this, but ISPs would lose out HUGE time. The ISPs still have some recourse after the order is entered as well, and as we see here, even the person getting sued can take some action as well as soon as they are identified. (Some ISPs will notify you before they answer, and give you a chance to try to quash before they answer) Alot of the rest of their tactics are crap, but this is a legitimate use of ex parte, and I dread what the alternative would be.

Re:Careful about the ex parte whooping

[Krach42]

While I agree that this is what ex parte is intended for. It's perfectly reasonable for the person to fight against it, and ask, is this really what we should be allowing?

But in some ways, it could be misused. Say someone walks past my front yard and throws a bag on my lawn. I didn't see them, but when I get the bag, there's a reciept in there with a date and time of where he bought something. If I wanted to sue the person should I be allowed to ex parte sue them as a John Doe on the first hand, so that I can then contact the store and force them to reveal who the person was?

The question is just how much justification need be shown to grant an ex parte order of this nature (they're arguing it's insufficient).

Re:Careful about the ex parte whooping

[TheSkyIsPurple]

The question is just how much justification need be shown to grant an ex parte order of this nature (they're arguing it's insufficient).

Absolutely agreed

I just wanted to head off the "ex parte is inherently evil" knee-jerk reactions that are popping up.

Re:Careful about the ex parte whooping

[pembo13]

Why not just dissallow the ex parte rulings for civil matters on a whole?

Re:Careful about the ex parte whooping

[sjames]

But in some ways, it could be misused.

Anything can be misused, and in law, everything inevitably will be. However, nothing here is attempting to destroy ex-parte as a whole, just reaffirm that the plaintiff must present some reasonable shred of evidence (not just his 'good word') that (for example) the John Doe who had the IP 192.168.1.36 at 4:30 PM actually did what they claim. Otherwise it's just a fishing expedition that will cost a lot of innocent bystanders time and money.

Keep in mind that if we let that standard erode, ex-parte will be used to silence whistle blowers (using bogus claims to get them unmasked) or even for a form of extortion.

ahem

[Anonymous Coward]

Does this mean i can sue the police to get my 650 pound stash of pat back

Who's Pat, and why do the police have him? Why would you want someone who's so heavy?

Re:ahem

[JamesTRexx]

Why would you want someone who's so heavy?

To have someone who can throw his weight around?

Re:ahem

[whitehatlurker]

He ain't heavy, he's my brother. (You insensitive clod.)

Is this so unreasonable?

[Anonymous Brave Guy]

Right, let's be clear. I think a lot of behaviour by the RIAA and its ilk is disgusting.

Now that I've got that little disclaimer out of the way, let me ask: is this use of ex parte tactics really so unreasonable? From the RIAA's point of view, the law has been broken. They just can't find out who did it to take legal action against them directly, because the ISPs and such (quite rightly) won't disclose confidential information to the RIAA on demand.

So, the RIAA do what any sound legal system should require them to do if they want to proceed: they must go to a court, and make a case that there is a reasonable need for them to have that information, and ask the court to give them the authority to get it. The court can consider their argument -- which, if they've got information that someone was swapping songs, almost certainly illegally, is a fairly solid one -- and grant the permission if it finds it appropriate.

At that point, no individual has yet been brought to court to face any claim, so no individual has been harmed. The RIAA just has a name, and it's up to them to demonstrate, in a separate court action with the defendant given due process, that the named person committed some illegal act and should be required to pay compensation or whatever.

Now, personally I think the US "everyone pays their own fees" system sucks, because it's wide open to abuse by large and well-funded organisations in this sort of context, but that's a separate problem. With US law as it is right now, what would be a more reasonable way for one party that has genuine evidence that they may have been damaged by some other, unknown party to seek fair compensation than by asking the courts to agree with them based on their evidence to date, and to enable them to find the person likely to be responsible so that they can be properly taken to court?

Re:Is this so unreasonable?

[Spock the Baptist]

Now, personally I think the US "everyone pays their own fees" system sucks, because it's wide open to abuse by large and well-funded organisations in this sort of context, but that's a separate problem.

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'.

Re:Is this so unreasonable?

[TheSkyIsPurple]

because it's wide open to abuse by large and well-funded organisations in this sort of context, but that's a separate problem.

Not just the biggies... I'm out over $200,000 in legal fees fighting a psychotic single mother, who happens to be a reasonably intelligent paralegal. She knows enough to file everything on her own, and files enough that I have to have attorneys spend alot of time dealing with the filings.

And since she's a poor single mother (who lost custody of her kids in fact), the courts don't want to cause her to risk not having a clean safe place for her kids to visit. Nevermind that I'm on the edge of homelessness as a result...

I don't think the loser pays system is the way to go either... that puts too much risk on the little guy suing the bigger guys.

We just need the judges to be a bit more liberal in using their discretion to award attorney's fees to the losing side.

Re:Is this so unreasonable?

[houghi]

and ask the court to give them the authority to get it.

In Belgium it works differently. A company notices something illegal going on. Naturaly the ISP is not allowed to give anybody any information. So The comapny files a lawsuit against unknown people. It is then up to the law to identify the individual.

A layer would have a fieldday if the ISP had given the information to the company. So either you start a courtcase go on, or you don't. The courts won't be very pleased if you give them work all the time and nevr pull throough.

Probably that is the reason they don't follow up on cases against individuals who just copy for themselves. Now when you start selling, they will haunt you till you die.

Re:Is this so unreasonable?

[THE MAC GOD]

The Problem isn't that they are seeking money lost on pirating... Anyone who's owed money that isn't getting it. has a right to be pissed off (just ask the artists that are under the RIAA). The Problem is that they, the RIAA, are hypocritical. They are attacking run of the mill people who have pirated a couple songs... When they should REALLY be going after the massive black markets in indonesia, malaysha, china, etc. But, it's a lot easier to sue 80-year old women, or 20-year old guys with no money than to run up against the Triads. You know, another thing, obtaining music isn't really the crime, it's listening to music you haven't paid for. If it was just HAVING the music, then every person in the world could get sued as a potential distributor. Also, RIAA should be forced to go back and sue everyone who ever made tape copies BEFORE going and suing people who are downloading songs off the net. It's unfair that they are able to pick and choose who to sue when it should be an unbiased, across-the-board thing. But, NO, IPs are easier to harrass people with. Shoot, most people who pirate go and actually buy the music. And the harder and harder they make CD DRMs (aka SONY), they will only be making things harder for the honest people when hackers will ALWAYS find a way around it. I don't care what kind of scheme you have. It will be hacked... sooner or later. Usually sooner... look at the 'unhackable 360' as evidence for that-and just wait for dvd-John to get into the mix. Anyway... my rant... people who make billions in profit and bitch about not making another billion piss me off... like they need another hot tub in their jet.

Re:Is this so unreasonable?

[TheSkyIsPurple]

> Just because someone makes available a file called 'Eminem - When I'm Gone.mp3' doesn't mean it's copyrighted material, indeed, it might not even be an audio file.

I would argue that if you are offering a file called 'Eminem - When I'm Gone.mp3', a reasonable person would expect that it would contain that song. Based on that they have enough reason to begin discovery.

Now, they have steps after this that need to be done... like, now that they know you, they can subpoena access to you comptuer, etc... but that's a different ball of wax.

It mostly sucks, but anyone can sue anyone for most anything and get into court. If it was truly frivolous, fees can be ordered to the losing party. BUT if you are offering a file with that name, there's a reasonable chance that you are offering what you appear to be advertising, so the case would most likely not be judged frivolous on just that.

Re:Is this so unreasonable?

[slavemowgli]

It *is* unreasonable, simply because the RIAA is not the police. If you want to sue someone but don't know their name, go to the police and file a complaint; then, the police can handle the actual investigation.

Nothing unreasonable about that, is there? The moral of the story: the RIAA, or any private organisation or individual for that matter, does not and should not wield any police power. Period.

Re:Is this so unreasonable?

[TheSkyIsPurple]

> the RIAA, or any private organisation or individual for that matter, does not and should not wield any police power

Well, they don't... so that wraps that up nicely =-)

They are exercising CIVIL powers that are available to any civil entity.

I don't want the police in the middle of this... They are so busy and afraid of getting sued as it is, they won't investigate hit&run accidents half the time. I couldn't get them to come to my house to get rid of my roommate's ex-wife when she was violating a CLETS restraining order, simply because she wasn't actively physically threatening anyone at the moment. (That woman is large enough she can actually cause physical harm without a weapon...) Never mind that if she did get violent the Sherriff's wouldn't be able to show in less than 10 minutes, assuming I was able to contact them at all after that... wonder why I'm pro 2nd ammendment? =-)

Do you really want to have your right to sue taken away because a single cop didn't think your case was worth developing for whatever organizational reason was relevant at the moment.
Do you really want to tie up two government branches with each wrong?

Re:Is this so unreasonable?

[Anonymous Coward]

Now, personally I think the US "everyone pays their own fees" system sucks, because it's wide open to abuse by large and well-funded organisations in this sort of context

No, what sucks is the complex legal system that requires expensive representation. It's a de-facto standard and nothing more, by lawyers for lawyers. Everyone pays their own fees is the epitomy of fairness; it is simply an unfortunate and unavoidable byproduct of the ability of groups to leverage their power over individuals combined with overly complex laws that lead to the current situation. You really can't do anything about the RIAA suing people, in a free country you can generally sue anyone for civil action if it's justified, and currently copying other people's stuff falls under civil law. The problem is that no one has the expert witnesses nor the expert social engineers^W^W lawyers needed to sway the jury.

Probably one could fix the entire legal mess in this country by requiring a jury of legal experts instead of a jury of one's peers. When one's peers are lagging behind some second and third world countries in math and english and reasoning scores, who on earth would want them on a jury? They'll buy the big flashy lawyer's story in a heartbeat, because obviously no one who looks and acts just like them could get the attention of such an obviously famous and important lawyer unless they had done *something*... I welcome the singularity, that's all I can say.

Re:Is this so unreasonable?

[Feanturi]

a file called 'Eminem - When I'm Gone.mp3', a reasonable person would expect that it would contain that song

It's very common on P2P to get files whose contents and titles have absolutely nothing to do with each other. Much of that is put there by the RIAA, so they cannot deny the reasonable doubt that exists there.

Re:Is this so unreasonable?

[Pig Hogger]

The moral of the story: the RIAA, or any private organisation or individual for that matter, does not and should not wield any police power.

It's not that easy. Some private companies actually do have private police forces. Railroads, for example, with their huge land and long rail lines; they carry valuable cargo that is naturally the target of many theft attempts (for examples, all automobiles carried by train carry their own legal papers and are unlocked. If you can get hold of one, it is virtually impossible to prove that you stole it). So they have to have their own police forces to patrol their yards and lines.

There is also several cases of mixed rail/road bridges whose roadway belong to the railroad, and the railroad police do enforce traffic regulations. Speeding and parking tickets are marked with the railroad's name instead of the city/county/state/ province/country/continent /planet/solar system/sector/quadrant/arm/galaxy/universe.

Re:Is this so unreasonable?

[Anonymous Brave Guy]

Just to correct you, there isn't any proof, from what I read, that any illegal activity has taken place.

And just to correct the AC, I never said there was. We're not talking about bringing a case for copyright infringement, we're talking about whether there is sufficient grounds to justify further investigation.

Just because someone makes available a file called 'Eminem - When I'm Gone.mp3' doesn't mean it's copyrighted material, indeed, it might not even be an audio file.

Sure, it might not. But there's a good chance that it is, and a reasonable person might expect it to be so. IMHO, it's clearly a reasonable basis for a court to allow further investigation.

If you don't want to be investigated as if you're infringing copyright, don't put up a big neon sign outside your door saying "Copy latest Eminem tracks illegally here!" :-)

Re:Is this so unreasonable?

[eric76]

It might be more interesting if the losing side's attorneys had to hand over their fees to the winning side's attorneys and pay their legal expenses as payment in full for the winning side's attorneys.

An attorney who didn't think there was much chance of winning would be less inclined to continue the case just to get paid by their client.

Re:Is this so unreasonable?

[TheSkyIsPurple]

She was suing me and my employer for over twice that amount. (No, the employer had nothing to do with it... she was just using them as an extortion method)

She did offer to settle initially for $100,000... but remember, I had actually done nothing. (And I didn't think the legal fees were going to mount tht high at that point... but you add delays, rounds of discovery, fights over discovery, motions for contempt for no reason, adjoining other mostly unrelated cases, adding actions, etc...)

If I didn't fight it, a judgement gets ordered. She was alleging some pretty eggregious stuff too... if I didn't defend it, I am basically accepting her facts as stated, and given what she stated, you could argue that huge sum was reasonable. On top of that, it's all public record, and I wouldn't have been able to pass any nontrivial background check for anything, could never teach, could never get a government job, etc...

The judge was giving her every chance to prove her case, I'm assuming so nothing could get appealed, and it was fairly clear he didn't buy the case in general... I just couldn't last long enough to get to that point.

As a point of trivia... after a year of this, she settled for about $2,000

The lesson as nearest I can tell: Never become friends with anyone who has ever been (or is) married.

Re:Is this so unreasonable?

[BobSutan]

"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."

You just gave me my million dollar idea. I wonder what would happen if someone started a law firm that operated like an insurance company? People buy legal protection much the same they would car insurance...regular monthly payments and perhaps a deductable should they ever need to go into court. Everyone in America would be urged to join such an organization, and should they get sued they'd have complete legal backing up to a predetermined amount of legal fees. This would allow for Joe Sixpack to have a legal defense against corporations and help put everyone on equal footing. Don't like the quality of your legal team? Dump them for a competing service. Since the fees are paid communally like insurance premiums, costs should be drastically lower than what they are today when people get legal defense on an ad hoc basis.

Re:Is this so unreasonable?

[CCFreak2K]

Isn't there a name for this? Due process? Or is due process only applicable in other cases?

Re:Is this so unreasonable?

[pinche cabron]

I couldn't get them to come to my house to get rid of my roommate's ex-wife when she was violating a CLETS restraining order, simply because she wasn't actively physically threatening anyone at the moment. (That woman is large enough she can actually cause physical harm without a weapon...)

Any chance this woman was the same psychotic single-mom that inundated you with legal motions? Just curious.

Re:Is this so unreasonable?

[PlusFiveTroll]

Great idea, mandatory insurance has lowered my insurance rate grately!

</sarcasm>

Oh, just in case your really didn't notice, I was being sarcastic.

Re:Is this so unreasonable?

[TallMatthew]

I couldn't get them to come to my house to get rid of my roommate's ex-wife when she was violating a CLETS restraining order, simply because she wasn't actively physically threatening anyone at the moment. (That woman is large enough she can actually cause physical harm without a weapon...)

You could have told them Large Marge is coming to get you.

Re:Is this so unreasonable?

[NaDrew]

Oh, just in case your really didn't notice, I was being sarcastic.

Not sure why, really, as the GP didn't say anything about "mandatory" insurance.

Everyone in America would be urged to join such an organization

(my emphasis)

I think it's a terrific idea. It's not, however, a new one.

Re:Is this so unreasonable?

[Anonymous Brave Guy]

What's reasonable doubt got to do with anything here? Proof "beyond reasonable doubt" is the standard for conviction in a criminal case in some jurisdictions. This is not a criminal case, and the evidence is not being used to convict someone of a crime.

What's necessary here is for a court to accept an argument that there are reasonable grounds to continue an investigation, when that investigation might reasonably result in identifying a target for a legitimate court case. That test is closer in nature to "showing probable cause" than to "beyond reasonable doubt".

Your argument is a bit like telling a police officer at the scene of a recent shooting that he can't even talk to someone found at the scene with a gun-shaped bulge under their jacket, because there's no immediate proof that the guy really is carrying a gun, and even if he is, there's no immediate proof that he was the person who did the shooting. You're looking at entirely the wrong point in the timescale, and applying entirely the wrong standards.

Re:Is this so unreasonable?

[Feanturi]

Wha? All I was saying is that a particular string of characters forming a filename shows nothing other than what the name of the file is, which does not automatically prove the contents. What this has to do with forbidding police to talk to someone with a gun-shaped bulge in their pocket at a murder scene is beyond me. You analogy needs to extend to include the fact that everyone else at the scene, and for blocks in all directions, all have gun-shaped bulges in their pockets. Then we might be on the same page.

Re:Is this so unreasonable?

[NewYorkCountryLawyer]

What's unreasonable is suing someone without any evidence that they committed a copyright violation.

Re:Is this so unreasonable?

[Anonymous Brave Guy]

But they're not suing someone without any evidence. Firstly, the ex parte step is being used to find out who the legitimate target for legal action would be, not a suit against a specific individual. Secondly, "We have records that a file was transferred using a computer you own, and the name and size of that file suggest that it is a copy of material to which we own the copyright" is not no evidence, it's a pretty damning case, and I imagine most courts would see it that way too. If the owner can show that the file did not, in fact, have content that reflected its name, or that neither the computer owner nor anyone for whose behaviour they are responsible could have caused the transfer, or convince the court that the file details are not sufficient to meet the burden of proof required, then they have a defence.

Re:Is this so unreasonable?

[NewYorkCountryLawyer]

You don't know what you're talking about. 1. The John Doe suits are suits against individuals and seek money and injunctions. 2. They will sue the John Doe in his or her own name once they find it out; they will not first attempt to find out from that person who they should really be suing. 3. They do not have any evidence whatsoever of any transfer of any file other than their own copying of the file. 4. Your statement of the law is absurd.

Re:Is this so unreasonable?

[Anonymous Brave Guy]

OK, let's try this again. I'm a reasonable guy, and contrary to the conclusion you seem to have leapt to based on reading a post or two I've made, I have an open mind here; I'm no great fan of the business practices of the big media industries, but I also have little sympathy if people flagrantly break the law and then get caught. You seem to be saying pretty clearly that I don't understand the law properly in this area, which isn't surprising, since I'm not a lawyer and I don't live in your area. If you know more than I do, how about trying to write a nice, informative post so I and others can learn something?

Perhaps you could start by reconciling your first two points for me. AIUI, the industry is using ex parte cases effectively to force ISPs to reveal the names of individuals whose computers have been used in potentially illegal copying through the courts. They are then dropping the ex parte cases and suing the individuals named under their own names, at which point the individual knows about the case and can defend themselves. Is this not correct?

If that's the case, then I really don't see how their action up to that point is unreasonable given the framework the US legal system imposes on them. If someone is ripping them off -- and let's not pretend that it's not happening on a wide scale -- then how else would you propose they defend their copyright effectively? If they were following through on the ex parte cases to the point where someone could be paying damages without even knowing they had been sued, that would be an entirely different ethical position, but AFAICS that's not what they've been doing. Perhaps I've missed something? (NB: In this paragraph, I'm referring only to the way the recording industry is actually using ex parte cases, not to any very dubious settlement offers they may make having got the name instead of using a proper court case, and not to the fact that US law might allow them to do more on an ex parte basis that we might agree is unreasonable.)

Next up, perhaps I'm just missing some technicality of US law here, but why isn't the fact that they're able to make a copy of the file of any weight as evidence? If a file is being advertised as available for distribution on a public network, and the copyright holder can show that the content of the file is protected by their copyright and distribution would infringe that copyright, why is this not enough? It seems to me that saying there's no case because the copyright holder's own actions can't infringe their own copyright and they can't prove to the relevant standard that anyone else has ever copied the file is the worst form of defence by legal technicality. Did the person distributing the material know that the person attempting to download it was working for the RIAA, and therefore that the download would not be infringing? Would they have acted any differently had it been someone else making the download?

Perhaps we're simply applying different standards here. You're applying the legal niceties test; that's your job. I'm applying the reasonable man test; I just want to see a fair outcome based on the information available. But if the results of the legal niceties are wildly in opposition to the results of the reasonable expectation, you can't really expect much support from anyone other than your clients, no matter how "absurd" their understand of the law may be.

Re:Is this so unreasonable?

[NewYorkCountryLawyer]

OK, sorry if I overreacted.

At the core of the RIAA lawsuit process, is its initial lawsuit against a group of "John Does".

Here is how it works:

A lawsuit is brought against a group of "John Does". The location of the lawsuit is where the corporate headquarters of the internet service provider (ISP) is located.

All the RIAA knows about the people it is suing is that they are the people who paid for an internet access acount for a particular dynamic IP address. (Incidentally, on the CBS Early Show with Harry Smith, on Tuesday, December 27th, Cary Sherman admitted on national television that the only thing the RIAA knows about the actual defendant is that he or she has an IP address.).

The "John Does" may live -- and usually do live -- hundreds or thousands of miles away, and are not even aware that they have been sued.

The case may drag on for months or even years, with the RIAA being the only party that has lawyers in court to talk to the judges and other judicial personnel.

The RIAA -- without notice to the defendants -- makes a motion for an "ex parte" order permitting immediate discovery. ("Ex parte" means that one side has communicated to the Court without the knowledge of the other parties to the suit. It is very rarely permitted, since the American system of justice is premised upon an open system in which, whenever one side wants to communicate with the Court, it has to give prior notice to the other side, so that they too will have an opportunity to be heard.).

The "ex parte" order would give the RIAA permission to take "immediate discovery" -- before the defendants have been served or given notice -- which authorizes the issuance of subpoenas to the ISP's asking for the names and addresses and other information about their subscribers, which is information that would otherwise be confidential.

In the United States the courts have been routinely granting these "ex parte" orders it appears. (Not so in other countries. Both Canada and the Netherlands have found the RIAA's investigation too flimsy to warrant the invasion of subscriber privacy. Indeed the Netherlands court questioned the investigation's legality.).

Once the ex parte order is granted, the RIAA issues a subpoena to the ISP, and gets the subscriber's name and address.

The RIAA then discontinues its "John Doe" "ex parte" case, and sues the defendant in his own name in the district where he or she lives.

Thus, at the core of the whole process are: (1) the mass lawsuit against a large number of "John Does"; (2) the "ex parte" order of discovery; and (3) the subpoenas demanding the names and addresses of the "John Does".

Re:Is this so unreasonable?

[Anonymous Brave Guy]

OK, I think I understand all of that, but in that case, I think my earlier question remains: if the ex parte mechanism is being used only to ask a court's permission to find information via discovery that can then be used to take legally proper action against a named individual who can properly defend themselves against the subsequent action in court, how is this unreasonable? (I assume that in order for the discovery order would only be granted by the court if the RIAA can demonstrate reasonable grounds for needing the information to be discovered, such as that they have other information to bring a full-blown case against that individual once they're identified.) If you can't seek basic and necessary information to bring a proper court case, via lawful discovery under judicial oversight, how on earth are you supposed to get that information and protect your rights under the law?

If the ex parte actions were to result in an individual actually being ruled against without due process where they could defend themselves, that would be a whole different ball game, but from what you've posted and what I've read elsewhere, that doesn't seem to be the case here.

Similarly, I'll be the first person to object to the whole dodgy settlement offer thing that often seems to follow the discovery of the name, but that again is a separate issue.

Please correct me if I'm wrong on either of the above points.

Re:what the fuck

[BrynM]

Right now the RIAA is the only person...

Never say that.

alternate link

[Anonymous Coward]

http://www.p2pnet.net/stuff/atlantic_does1-25_ziaf fidavit.pdf

wrong wrong wrong

[geekoid]

" Chances are the majority of accused John Does are guilty..."
at best, they can nly see that there are music files on a computer.
Who put them there? are they legal? How many people use that computer?

Re:wrong wrong wrong

[mi]

"Chances are the majority of accused John Does are guilty..."

at best, they can only see that there are music files on a computer.

The GP is talking about actual (as in known to deities) guilt. You are talking about RIAA's ability to prove it.

Yes, maybe 1 out of the 25 John Does wanted to share new Debian CD-images, but had her computer hijacked by the evil mp3-sharers. Chances are very good, however, every one of them was illegally sharing the protected works knowingly.

Objectively, RIAA is being wronged here. The answer to someone's zeal in protecting their works from copying is in not buying them, not in buying and then distributing them anyway (illegaly)... The burden of proof is on RIAA, of course, but we should not be cheering the people, getting off on a technicality, too much either.

Re:wrong wrong wrong

[Anonymous Coward]

Who put them there? are they legal? How many people use that computer?

Anonymous ISP here again... funny story to share about the "who put the file there" comment.

About a year ago summer, the customer service manager referred a customer issue to me (I get all the fun ones that deal with policy issues as CSO). I should mention the process we use - we actually (hold onto your chair) presume our customer is innocent first. The process we developed (and reviewed with counsel) does the following when we get either a DMCA inquiry or an internally-generated incident request from NIDS monitoring (usually from P2P server operation or serious P2P client over a threshold).

Step 1. Collect basic data and confirm from traffic flows. We're PPPoE throughout our network into an MPLS fabric, so it's pretty easy for us to redirect a stream for analysis from anywhere in the network to an analyzer. We don't go into the traffic other than looking at what it is and confirming/rejecting the information of P2P flows. (Always, always document these processes too - it'll save your ass someday since courts and judges do give a bit of discretion to those who exercise diligence in their practices).

Step 2. Contact the customer via phone (with followup email for legal requirements - just to CYA). We let the customer know what's going on. Like I said previously, it's almost always a minor child who's installed P2P. Occasionally I have an adult who I have to explain the issues of P2P server mode being like driving 110 MPH in a 45 zone per getting attention. Simply downloading won't get our attention, but they do need to be aware that it can get the RIAA's and if they have good evidence and comply with the notification provisions, we will have to pass along the customer's info. (Hint: Be discrete and don't be a P2P pig! Drive with the flow of traffic!!!)

So anyway, we had one of the server type incidents and helpdesk called and notified a parent. I got the call back from the mom, demanding to speak with a company officer about our behavior. Figuring we had someone unaware of DMCA and just needing to talk with, I called mom up.

Mom proceeded to tell me that she had talked with her 15-year-old son after she investigated the PC and found gigabytes of porn on the family hard drive. However, the son explained that the ISP put it there, since that's the "only way it could have gotten there." I was actually being threatened with lawsuits from mom about our allegedly hacking in and forcing her 15-year-old kid to watch all this stuff.

I kindly (holding back the laughs) told mom that if she really believed this to be the case, we'd need to have authorities immediately take the PC as evidence and conduct a forensic audit on the contents. Of course, if it was determined that her son put it there...

As always, you can help most people out but occasionally you get a nut!

Re:wrong wrong wrong

[Halfbaked Plan]

Yes, maybe 1 out of the 25 John Does wanted to share new Debian CD-images,

Or maybe they were sharing CD images of a new Operating System derived from the Debian source code, but without providing, in fact refusing to provide, the source code.

People should be careful about setting up legal precedents where anything-goes distribution is the norm.

Re:wrong wrong wrong

[drinkypoo]

The answer to someone's zeal in protecting their works from copying is in not buying them, not in buying and then distributing them anyway (illegaly)... The burden of proof is on RIAA, of course, but we should not be cheering the people, getting off on a technicality, too much either.

Yes, we should. the RIAA is an unethical group that bitches and moans about people behaving unethically. Fuck 'em. Anyone who socks it to the RIAA to any degree is okay by me.

Re:wrong wrong wrong

[mi]

RIAA is an unethical group that bitches and moans about people behaving unethically.

Nope, the correct version of the above statement would be: RIAA is an unethical group that bitches and moans about people behaving illegally.

Ethics are in the eyes of beholder... You don't approve of vigilante justice, do you?

Re:wrong wrong wrong

[drinkypoo]

Ethics are in the eyes of beholder... You don't approve of vigilante justice, do you?

I dunno. It would be nice to have some kind of justice.

Is there anything to stop people having anon conns

[Anonymous Coward]

er, anonymous connections?

As in the ISP activates a particular access key to a wireless network in an area of town assuming that X much money is deposited in Y postbox in a brown envelope.

That way the ISP ceases to have the names/addresses of it's subscribers however much they get subpeonaed for them.

Or is that illegal (since they won't have a proper paper trail for where the money is coming from).

Could they handle billing offshore so the data wouldn't be in the US?

Not get picky...but...

[redwoodtree]

programmer Zi Mei has slammed the investigation on which the 'ex parte'

No.... actually, progammer Zi Mei's LAYWER has slammed the investigation. Unless he's a lawyer and a programmer of course, in which case it should say "programmer and lawyer..." But I digress.

What I'm trying to say is, I'm no fan of laywers, but let's give them a little credit here and say that they've come up with a good way to defend this Mei guy. If anything Mei can afford a good lawyer, yay!

...........Anyway... back to digging for slugs....

Re:Not get picky...but...

[rodentia]

No, actually, Zi Mei is a programmer hired by lawyers for John Doe #8, party to Atlantic vs John Does #1-25, to investigate and give expert opinion upon the RIAA's evidence gathering. Mei hasn't been accused of anything.

Read before you pick.

Re:Not get picky...but...

[mrchaotica]

I didn't RTFA, just the summary, so I may be wrong. However, it sounds to me as if Zi Mei is not the John Doe, but instead is an expert witness or something (a third party, at least), who filed an affadavit saying that technically, the RIAA doesn't have enough evidence to file the ex parte orders.

Re:Not get picky...but...

[NewYorkCountryLawyer]

Zi Mei is not the defendant. The defendant is John Doe #8. His name has not been divulged. Zi Mei is a computer programmer who is assisting John Doe #8 by acting as an expert witness.

Re:Not get picky...but...

[NewYorkCountryLawyer]

Correct. Zi Mei is not the defendant, he is an expert witness.

Anyone able to get at those PDFs?

[TheSkyIsPurple]

I keep getting 0 bytes files... even from coral cache...

I really want to read what was filed for this

Re:Anyone able to get at those PDFs?

[SpinJaunt]

Yeah, I got teh source code:

ln -sf atlantic_does1-25_noticeofmotion.pdf /dev/zero
ln -sf atlantic_does1-25_ziaffidavit.pdf /dev/zero
ln -sf atlantic_does1-25_rogersaffidavit.pdf /dev/zero
ln -sf atlantic_does1-25_memooflaw.pdf /dev/zero

Re:Anyone able to get at those PDFs?

[autocracy]

Point: that would make files of an infinite length of zeros.

Perhaps linked to /dev/null? ;)

Re:Anyone able to get at those PDFs?

[Keeper]

Same here. If you look in the directory holding the files, they're all listed as zero byte. Wonder how long it will take them to figure out they foobared the upload...

Re:what the fuck

[InvalidError]

Some ISPs will not release customer information unless a court order tells them to... and this is how things should be.

To get these court orders, RIAA/MPAA/etc. usually have to file lawsuits. The *AAs know the ISPs have the customers' info but until they get the court orders, all they have to work with are activity logs showing people from certain IPs accessing illegal content at specific times. Once they have the order, the ISPs are legally required to tell them who owned those IPs at those specific times and amend the lawsuits with the actual names.

Which do you prefer? ISPs readily disclosing customer info to *AA leading the *AA to extort people directly or ISPs refusing to disclose info until forced by the courts during the normal discovery process? Following due process at least prevents the *AA from picking specific targets and also forces them to more thoroughly investigate each case they plan to file. Having to file formal lawsuits also prevents them from pretending it never happened when cases turn out to be dead-ends or backfire.

The *AAs fought long and hard to circumvent due process but they failed, now they're forced to sue Jon Doe by following due process... everybody should be happy that the *AAs are finally using the legal system the way they are supposed to instead of trying to work around it.

Word Salad?

[TubeSteak]

Fictional RIAA Victim: I paid my lawyer $200 an hour, still went to jail and all I got was a tossed salad.

Also..EFF

[redwoodtree]

Also, one more thing before I go back to the slugs...

It would have been nice to mention the Electronic Frontier Foundation and how much they deserve YOUR support (as well as mine... and everyone elses.) For it is through the EFF that we have even the slightest hope of regaining some sanity in the digital world.

Re:Is there anything to stop people having anon co

[Skreems]

Personally, I think that's a fantastic idea. There's this expectation in our society that everything should be traceable, but as far as I know (IANAL) it's not based on any solid legal ground. The hypothetical ISP you describe would probably still be required to provide FBI wiretapping capabilities, but if their structure is such that they themselves don't know their users identities, they might get away with it.

I'm sure they shred everything,

[soupdevil]

But this gives me an evil urge to do some RIAA dumpster diving, and then file some ex parte "littering/trespassing" lawsuits.

Atlantic vs DOES 1-25

[sorak]

IANAL, but for those of you who are, maybe you can help me...

This sounds like the opposite of a class action lawsuit. How is it that this is considered one case, instead of 25 different suits against 25 different people?

Part of the reason I am interested is because I have an interest in class-action lawsuits. Sure, they end up making small fortunes for the lawyers, and result in the wronged party receiving a coupon good for five dollars off their next defective product, but it is the only recourse the little guy has when the stakes are lower than lawyer's fees (like an iomega customer wanting his one hundred and fifty bucks back). I'm just curious how the law works when one company wants to sue several people who are not conspiring together, but who have simply committed the same tort.

Re:Atlantic vs DOES 1-25

[rodentia]

John Doe #8 has also moved to dismiss this aspect of the suit.

You are right, it is an inside out class action, formed under Rule 20(a) of the Federal Rules of Civil Procedure. Doe #8's lawyers essentially argue that any link between the 25 co-defendants is fortuitous and insufficient to grant the jointure. The rule is designed to collect partners or other's who jointly benefit from the transaction or actions at issue.

Re:what the fuck

[ZachPruckowski]

For all they know, they could be suing someone on their legal team, or even the judge!

Yeah, I'm waiting for them to sue someone awkward, like a celeb or someone in the gov't. I mean, with all the people pirating, it's almost a gaurantee that they'll get someone important sooner or later.

Albert Einstein

[Anonymous Coward]

Nothing is more destructive of respect for the government and the law of the land than passing laws which cannot be enforced. It is an open secret that the dangerous increase of crime in this county is closely related with this.
  - Albert Einstein

Re:Albert Einstein

[spiked_mike]

Are you sure that this quote can be contributed to Albert ? It has become more and more common to contribute a quotes to A.E. or another famous "thinkers" within that makes statements about things that are widely out of their respective fields, like the classic quotes about inteligence and such that gets sticked to A.E. eventhou he was a physicist, not a psycologist or such.

What language was that in?

[johnMG]

Did you ever read an article summary and just have no clue at all what they were talking about?

What is "slammed the investigation" supposed to mean?

Is Mei the midwesterner? Who's this "Atlantic" character? Is he the big boss?

Is there someone codenamed "Does 1-25"? Maybe that person is playing "John Doe Number 8" in the off-Broadway version of this article submission?

Also, I think that last sentence about about the RIAA's subpoenas could've used some parentheses in there somewhere.

Re:what the fuck

[Krach42]

Which do you prefer? ISPs readily disclosing customer info to *AA leading the *AA to extort people directly or ISPs refusing to disclose info until forced by the courts during the normal discovery process?

Neither. I want the ISPs to have the ability to refuse to disclose customer information to the RIAA unless they have been issued a court order. Note, this isn't EXACTLY what you said in the second part, because it allows that the ISP can choose to disclose the information, if upon their own evaluation the information is warranted.

If the ISP releases the information and it wasn't warranted or permitted, then you have the recourse of acting against them. Also note, this is the way it is now.

Following due process at least prevents the *AA from picking specific targets and also forces them to more thoroughly investigate each case they plan to file.

That's exactly the point. Who knows it's due process, until the court examines it. John Doe #8 is asserting that the RIAA has not sufficiently followed due process in their actions against him and the other 25 John Does.

It's all a legal battle. In court, everyone says their going to do something, and they try and make their case, and the court either agrees or disagrees, then they move on to the next matter.

The *AAs fought long and hard to circumvent due process but they failed, now they're forced to sue Jon Doe by following due process... everybody should be happy that the *AAs are finally using the legal system the way they are supposed to instead of trying to work around it.

Crap, wait... were you agreeing with me or disagreeing with me. Either way, I agree with this statement...

If you were agreeing with me, then it's all good, but if not... um... I don't know what to argue about since we both agree that it's a good thing that the RIAA is being forced to operate under due process.

Re:what the fuck

[Krach42]

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

Courts deal with "persons", which are actually legal entities. It just so happens that in the vast majority of cases, legal entities are confined in squishy tissue boundaries.

But there are a number of "persons" who can appear before court that aren't confined in squishy tissue boundaries. (btw, that's a real legal term... squishy tissue boundary...)

sorry, I just got totally sidetracked there...

Re:what the fuck

[E8086]

"or someone in the gov't"

like good olde Senator Hatch?

Don't get too excited

[Anon E. Muss]

The motion to sever the defendants may well succeed. In that case the RIAA will be forced to file separate lawsuits against each John Doe, costing them additional filing fees. This may slow them down for a few nanoseconds, but it won't stop them. They'll refile.

The motion to quash the subpoena is more interesting. Can the RIAA document the alleged copyright infringement with greater specificity? If not, the subpoena could be quashed, and this John Doe will skate. That won't stop the RIAA from suing other John Doe's using similarly flawed evidence. It will still be up to each John Doe to fight back, using their own time and money.

Remember, it's the legal system, not the justice system.

Re:what the fuck

[ZachPruckowski]

like good olde Senator Hatch

Problem: These are Senators we're talking about. You think the people who pass these sorts of ridiculous laws actually know how to turn a computer on? I mean, if they tried to fileshare, it'd be beyond their abilities to google "BitTorrent".

Represent yourself?

[TubeSteak]

Question: How does a 'John Doe' fight a lawsuit?

My guess: At some point, their ISP notified him, they retained a lawyer and the lawyer is making motions and appearing on his behalf.

This works, but only for people who can afford a laywer .

How are you supposed to represent yourself in a John Doe case?

Re:Represent yourself?

[ErikZ]

Have your name changed to John Doe?

Re:Represent yourself?

[Surt]

Hire yourself as a lawyer? Go into court, announce you are legal counsel retained by John Doe #X. If you wind up getting revealed in the real trial, then you've not lied to the court.

Re:what the fuck

[ademaskoo]

Why can't the ISP's simply stop keeping this data?

Re:what the fuck

[eric76]

Once they have the order, the ISPs are legally required to tell them who owned those IPs at those specific times and amend the lawsuits with the actual names.

That is not correct.

First of all, the first step is a subpoena, not a court order. A subpoena and a court order are two entirely different things.

If the ISP does not have that information, then they can't tell them. There is, to my knowledge, no law in the U.S. requiring ISPs to collect and store that information.

Once subpoenad, most ISPs, especially small ones, will provide the information at that point, if they have it. An ISP could, if they desired, fight the subpoena in court.

Once the court orders the ISP to turn over the information, the ISP must either comply or appeal to a higher court.

Disclaimer: I'm not a lawyer.

Gramm Leach Bliley

[TubeSteak]

http://www.ftc.gov/privacy/privacyinitiatives/glba ct.html

The Financial Modernization Act of 1999, also known as the "Gramm-Leach-Bliley Act" or GLB Act, includes provisions to protect consumers' personal financial information held by financial institutions. There are three principal parts to the privacy requirements: the Financial Privacy Rule, Safeguards Rule and pretexting provisions.

The GLB Act gives authority to eight federal agencies and the states to administer and enforce the Financial Privacy Rule and the Safeguards Rule. These two regulations apply to "financial institutions," which include not only banks, securities firms, and insurance companies, but also companies providing many other types of financial products and services to consumers. Among these services are lending, brokering or servicing any type of consumer loan, transferring or safeguarding money, preparing individual tax returns, providing financial advice or credit counseling, providing residential real estate settlement services, collecting consumer debts and an array of other activities. Such non-traditional "financial institutions" are regulated by the FTC. ...

I think the defining part of the above description is: financial products and [financial] services to consumers.

I'm not sure how this applies to ISPs in any way shape or form.

My ISP doesn't provide a financial service...

Re:Gramm Leach Bliley

[jrockway]

> My ISP doesn't provide a financial service...

Your online banking information magically appears on your computer, then? Funny... I thought it went over your ISP's wires.

Re:Gramm Leach Bliley

[Anonymous Coward]

I'm not sure how this applies to ISPs in any way shape or form.

Anonymous ISP here... good question! My understanding of GLB as explained by the law-speaking guys is that it doesn't usually apply, but we offer a package of enhanced services to community banks including managed VPNs and their auditors are pretty inclusive on who's doing what. It's like SAS-70 - I'd probably never initiate one myself but we have to do it since our customers (and their auditors) expect us to. You'd be surprised how many companies that have no business passing a SAS-70 manage to do so btw...

GLB is probably something good for an ISP to know if it deals with customers in the financial industry.

Re:Gramm Leach Bliley

[TubeSteak]

ISPs are common carriers you nimrod.

They no more provide financial services than my telephone company provides financial services when i call my bank to check on my accounts.

Summary:
ISP != financial service
Telephone Company != financial service

If you really want to parse words, my ISP provides a service in return for financial reward. But that is neither here nor there.

Re:Gramm Leach Bliley

[Surt]

Really, no financial service, they don't charge you money or anything? Where do I sign up?

Re:Gramm Leach Bliley

[Surt]

Absolutely, and I demand that the privacy provisions apply to them also!

This always happens....

[Djarum]

Around Thanksgiving I was having this exact idea while talking to a friend of mine.
I am quite a law buff and I was arguing that the "ex parte" orders were illegal and if someone were to challenge them they would win. The counter that "well the person is breaking the law", you would have to remember that even though you have proof of a crime you can not arrest nor charge another.

Lets say your neighbour is making drugs next door. You see crackheads walking in and out of the house. There is weird chemical smells, and empty bottles of chemicals around. Hell lets even say he tried to sell you some and have it on video tape. Can you go across the street, knock down his door, arrest and charge him with a crime?

No, of course not. You call whatever Backwoods Nazi Law Enforcement Agency you have, they will conduct their own investagation, and then if they have enough evedence they knock down his door, arrest and charge him.

Now if the RIAA would want to follow the laws put into place in the United States they would report the person to the FBI's Copyright Infringement division and let them do their own investigation and charge the person with a crime. Most likely the FBI would take a look at the 13 year old with 300 mp3's on their drive and file it away far, far away.

The person that said that the RIAA should be charged under the RICO Act is indeed onto something. It is a form of racketeering. Also the RIAA should have to be forced to show the actual loss in revenue from each song, and where do they come up with the numbers they sue people for.

Re:This always happens....

[JesseHathaway]

...the RIAA should have to be forced to show the actual loss in revenue from each song, and where do they come up with the numbers they sue people for.

This Harvard Business School/UNC-Chapel Hill study tackles this question of whether the RIAA's bellyaching is warranted, and is quite interesting.
To sum it up, it found that file-sharing actually increased the sales of albums which contained the most popularly downloaded tracks, contrary to the findings of an earlier study.

From the Oberholzer/Strumpf study (March 2004):

We consider the specific case of file sharing and its effect on the legal sales of music. A dataset containing 0.01% of the world's downloads is matched to U.S. sales data for a large number of albums. To establish causality, downloads are instrumented using technical features related to file sharing, such as network congestion or song length, as well as international school holidays. Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. Moreover, these estimates are of moderate economic significance and are inconsistent with claims that file sharing is the primary reason for the recent decline in music sales.

TFA:
http://www.nber.org/~confer/2004/URCs04/felix.pdf
For those who wish to read it in a non-annoying format:
http://scholar.google.com/scholar?hl=en&lr=&q=cach e:u2jUjTCu3-0J:www.nber.org/~confer/2004/URCs04/fe lix.pdf+author:%22Oberholzer%22+intitle:%22The+Eff ect+of+file+sharing+on+record+sales:+an+empirical+ ...%22

Re:This always happens....

[Anonymous Coward]

Its called a citizens arrest and in most states it is quite legal and depending on what state you live in it is your legal obligation to arrest that neighbor.

http://www.constitution.org/grossack/arrest.htm
http://www.ou.edu/oupd/selfarr2.htm

Re:This always happens....

[travisty]

Lets say your neighbour is making drugs next door. You see crackheads walking in and out of the house. There is weird chemical smells, and empty bottles of chemicals around. Hell lets even say he tried to sell you some and have it on video tape. Can you go across the street, knock down his door, arrest and charge him with a crime?

of course you can't, b/c only the government can charge him with a crime. you could likely bring a civil action against him for any number of potential causes though, much like the recording industry has done...the copyright act contains both criminal and civil components, and quite frankly, criminal copyright actions aren't generally considered the highest priority...accordingly, it falls to the owner of the property rights to enforce them directly, which is why you hear about the riaa going after people a lot more frequently than you hear about the government criminally prosecuting a copyright infringement...

The person that said that the RIAA should be charged under the RICO Act is indeed onto something. It is a form of racketeering. Also the RIAA should have to be forced to show the actual loss in revenue from each song, and where do they come up with the numbers they sue people for.

as for the bit about the RICO Act, i'd be interested to hear an explanation about what criminal enterprise the RIAA is seeking to further by its use of the legal system...i think what most are really saying is that the RIAA should be held liable on claims for abuse of process, though quite frankly, considering the number of cases that have been filed (and in turn, the number of opportunities individuals have had to raise that kind of claim), the fact that i haven't heard of a single example where that argument has been successful makes me skeptical about its merits...in the overwhelming majority of instances, such a claim is likely to be viewed as sour grapes over getting caught doing something that everyone knows is illegal, but that no one thinks they're going to get called on...

with regard to "where they come up with the numbers", it's statutory, and one of the benefits granted upon registration of work...under the copyright act, the holder of a registration has a presumption of injury and can opt to receive damages in the amount provided in the statutes, without providing evidence of actual injury or the amount of the injury tied to the infringement (i.e., they only have to show that their work was infringed in some way)...it's intended to encourage registration and to deter infringement; whether it's successful in those regards, or the best way of achieving those ends is another discussion entirely, but that's the current state of the law...

Re:This always happens....

[Surt]

http://www.constitution.org/grossack/arrest.htm
http://www.kevinboone.com/citizens_arrest.html
http://oldweb.uwp.edu/academic/criminal.justice/ci tarr.htm

  Note: varies from state to state.

Re:This always happens....

[drinkypoo]

In California, you may place someone under citizen's arrest for a misdemeanor you have witnessed, or if you believe they have comitted a felony. If they resist, it is legally equivalent to resisting arrest by a police officer. If you turn out to be wrong, you can certainly get nailed for false arrest, which is fairly serious. Also, even if you turn out to be right, it won't stop you from potentially getting drilled with a .44 in the process of trying to arrest them.

Thus, it's not the smartest thing to do, necessarily, but you CAN do it.

Re:This always happens....

[chawly]

Agreed.

Re:This always happens....

[Djarum]

In terms of the lawsuits the RIAA is commiting acts of extortion and blackmail. They file lawsuits against people with little real proof of any wrong doing. They try to get them to settle for thousands of dollars or deal with a long drawn out legal battle in which they will spend as much if not more money to prove their innocence. It's a racket same as any organized crime unit, and honestly a good one.

As you said the discussion of copywrite laws are a completely other subject, but the current actions being taken by the RIAA is honestly for lack of a better word "slimey". I am very glad to see that musicians such as the Arctic Monkeys and others are developing huge fanbases without the need or help of a major label. I was reading a story today about how the labels are fearing that the day when they are needed is nonexhistant. If this is how they want to treat consumers then I can't wait for them to become irrelevant.

Re:This always happens....

[travisty]

Heh...there's a thin line between legitimate attempts to make use of the courts and abuse of the process. But again, in my opinion, the solution is for a "wrongly accused" party to file a counterclaim against them based on the supposed abuse, rather than to just make blanket suppositions that the riaa shouldn't be allowed to make use of the system b/c they've purportedly accused some people incorrectly. I notice that most people that have been sued don't bother with the "it wasn't me" claims, likely b/c the overwhelming majority know what they were doing. Most of the ones who argue that they aren't liable throw out ridiculous (read: generally legally irrelevant) arguments like, "it must have been my children, but i didnt know what they were up to"...

I saw the article you referred to...good read.

RIAA & Due Process?

[TubeSteak]

You and the GP seem to be making the mistake in assuming that the RIAA is working according to the letter of the law.

The news is only reporting the number of John Does being sued.

I think it would be naive to assume that there aren't a fairly large number of people who got turned in by their ISP & settled instead of being sued first.

Does everyone speak gibberish

[Anonymous Coward]

"Mei is the programmer whose affadavit the midwesterner wa "armed" with."

The original poster had it right. It is gibberish.

There's a reason you're taught proper english in high school. Its so you may communicate with the widest variety of people possible. What was written was the equivalent of mumbled slang typed into a computer. What you end up with ugly and incomprehensible.

It was nice of you to try to interpret, but in doing so, you raise just as many questions as the original article.

I realize typing in all that information is difficult. I realize that it requires 5 minutes of thought before typing. But the result is a set of sentences and structures that even someone not as "hip" as you can understand.

You'll do better next time, sport. Thanks for trying though.

illegal search and seizure

[pinche cabron]

I'm sad to see some asshole modded your comment "flamebait." Probably just an RIAA troll.

Anyway, I agree that private entities should not be granted police / military powers. Which is why I was so pissed when those Blackwater mercenary thugs were given special treatment in New Orleans after Hurricane Katrina. Regular citizens were disarmed by police, in violation of the 2nd Ammendment, while Blackwater's forces were allowed to keep their weapons in order to protect corporate interests. Blech.

As Zi Mei's affidavit points out, the RIAA has no solid evidence any crimes were even committed! As someone else on this forum pointed out, the RIAA itself has planted bogus mp3 files on p2p services which would have looked the same as pirated mp3s. The evidence the RIAA does have is extremely flimsy, and would never compel a decent judge to make the ISPs hand over server logs.

Say someone in an apartment building had a birthday party, and at that party there was an unlicensed performance of the "Happy Birthday" song that a lawyer happened to hear while walking past the building. Then say that lawyer tried to have an ex parte order to get a list of all the building's tenants, to determine who had a birthday on that day. Would anyone take him seriously? And even so, would having a birthday on that day prove you had illegally performed the "Happy Birthday" song?

If you want a criminal rather than civil example, pretend it was marijuana smoke drifting out of the building instead of music, and that a police officer wanted a warrant to search every apartment in the building.

Re:Is there anything to stop people having anon co

[tom's a-cold]

There's this expectation in our society that everything should be traceable, but as far as I know (IANAL) it's not based on any solid legal ground.

It would really set the cat among the pigeons to agitate for a constitutional amendment that clearly spells out that individuals have a right to anonymity that can only be breached when very strong evidence of crime is presented. I'm thinking a standard like "probable cause." If you can't convince a magistrate it's a criminal matter, you don't get to snoop.

I would also like to see it made clear that corporations, as a condition of their being allowed to operate, have no such right.

It would be interesting to see if a "structurally" anonymous ISP would actually be allowed to operate. There has been pressure on ISPs, and collusion between telcos and the government, to allow taps. But, to my knowledge, there has so far been no legislation forbidding the protection of your customers' privacy through technical means.

If anyone in /.land knows different, I'd like to see chapter and verse.

Re:Ex Parte is not applicaple here

[Anonymous Coward]

He may well lose. But one of the issuses here is that the RIAA failed to present sufficient evidence that the named John(s) Doe were involved.

In your rental car analogy, Hertz would be compelled to release the renter's identity, but only if there was sufficient evidence to show the car was involved in the accident. However, this is an imperfect analogy for a number of other unrelated reasons.

Never take legal advice from someone who can't spell lawsuit or illegal.

That's fucked up

[Silkejr]

What a horrible-sounding law!

can u demand all $$ goes to artits?

[cheekyboy]

I think anyone who settles with RIAA, should demand 100% of the settlement goes to the artists, and NOT ONE CENT
goes to RIAA or the lawyers, and that you want proof with zero cost.

Then I would tell the RIAA, "Well If I loose $3000, im never going to buy CDs ever again in my life time, neither my children, parents, friends,
we will find alternative music sources with zero trace, ie CDR swapping at home. So you may gain the $3000 today, but loose $30000 over 50 years."

Suck on that RIAA.

Real artists make money from clubs/live performances, and selling CDs at the venue.

Re:can u demand all $$ goes to artits?

[TapeCutter]

"I think anyone who settles with RIAA, should demand 100% of the settlement goes to the artists, and NOT ONE CENT goes to RIAA or the lawyers, and that you want proof with zero cost."

Ever faced a judge? They don't take too kindly to the other people demanding things in their court.

Re:what the fuck

[Quiberon]

Well, it may or may not be illegal. For one thing, it is possible that the user of the IP address in question may have permission to distribute; Sony surely have permission to distribute the CDs they are selling, and they sell distribution rights too. For another, it is possible that the human paying the bill for the account may be unaware that his/her IP address is being used for the purpose. It's not criminal ... I think ... only distributing 'Star Wars' before official release is criminal ... though I would defend the right of you Americans to have any law you want to vote for, so you could make 'copyright infringement' criminal if you wished (and were prepared to have taxpayers fund the bill for the prison food for th guilty).

This sounds great!

[adolfojp]

How can we help :-)

The Empire

[dwandy]

I can only hope that one day the US threats will become void, since the rest of the world will happily trade with each other and not need the US at all, i.e. the situation reverses and the whole world except the US have trade, and the US becomes isolated and poor.

While I don't quite share your ill-will towards the US (simply don't wish ill on anyone) I do forsee a day when the American influence is severely limited from what it is today.
No empire is forever (ask the Romans, the Brits, the Egyptians, , , ) and so it's just a matter of time until this one also ends.
As a Canadian we've seen the double edged sword that is being the largest trading partner of what is now the largest economy on earth ... the threats of cutting off trade, the unilateral sanctions, their ignoring & perpetually appealing trade rulings that don't go in their favour are all part of the price of trading with the ferocious business beast called the USA.
So my predictions for the next super-power? The easy guess is China, and for my own personal sake I hope I'm not around to see how they flex their political muscle if it ever comes true.
The EU is another good guess and one I could be happy with, but I suspect it lacks the cohesion that China has (i.e. political bickering vs resolution to act on something). India and Russia are filled with a combination of promise and corruption that makes them wild-cards, but still unlikely. There's little in the way of economic growth or power in Africa, S.America or the middle-east, so unless there are some drastic changes no power is going to come from there anytime soon. Japan had it's day, though it will probably prosper (along with the rest of south-eastern Asia) if China becomes the next super-power.

Re:The Empire

[Ced_Ex]

It's really more of "when" rather than "if" China becomes superpower if it isn't already. The US has massive debts oweing to China because of the import surplus. Americans are purchasing more than they are selling to China. As I believe China holds US bonds in the billions of dollars.

As for not being around when China is a superpower I don't really think you will have much to worry about. China hasn't been known to stick their noses in other people's affairs like the US has. They don't have military bases outside of their own country, they don't send spy aircraft into foreign airspace, nor have submarines lurking in foreign harbours.

You might dispute that with Taiwan, but if you read history you'll find out that this place actually was once part of China. In fact, many of the people who claim to be "Taiwanese" are really not, and are just Chinese who immigrated to the island of Taiwan.

Anyway, China would only flex their political muscle domestically, they haven't shown any tendency historically to influence other countries.

There's a *FOURTH* Ammendment?!?!

[elrous0]

Not to mention the Fourth

I am sorry, but the number you have dialed:
"4th Ammendment"
has been suspended by the President due to wartime. Please hang up and try your call again in 3 years.

-Eric

They need a better expert

[Y2]

I read Zi Mei's affadavit, and if I were counsel for the plaintiff, his credentials as an expert witness would be shredded to dust. His points are generally valid, but he makes some technical errors, such as calling an IP address "a twelve digit code." Make no mistake, I'm defending the RIAA, but its opponents may have to do a bit better than this.

Re:They need a better expert

[Khyber]

"a twelve digit code." Technically that is correct. I can use 192.168.001.001 to access my router, just as well as I can use 192.168.1.1 to access the same router. Twelve digit is indeed proper.

Re:They need a better expert

[Nom du Keyboard]

he makes some technical errors, such as calling an IP address "a twelve digit code.

He is clearly speaking in layman's -- or in this case, Judge's -- terms. If he put it in geek speak no one other than another programmer would understand what he was saying no matter how technically accurate. You must speak to your audience.

Re:They need a better expert

[chawly]

My very best for the new year also. Can't agree with you, however. One should not speak to the RIAA for they are beyond reason. As for someone who defends them well ...... Bunch of twerps I tell you - and their defenders should be shot (and would be, except for an issue regarding the price of the ammunition).

Re:They need a better expert

[Nom du Keyboard]

One should not speak to the RIAA for they are beyond reason. As for someone who defends them well ...... Bunch of twerps I tell you - and their defenders should be shot (and would be, except for an issue regarding the price of the ammunition).

I believe you have misunderstood. Zi Mei has filled an affidavit against the RIAA's data collection and identification methods, showing how imprecise and prone to error they actually are. He argues why no court should rely upon them in something as important as a court case that will cost the defendant thousands of dollars no matter how he comes out.

He's on your side.

Re:They need a better expert

[chawly]

I quite understand the action taken by Zi Mei, and fully comprehend that he's "on my side". My fault - for I wasn't clear - the defender of the RIAA against whom I was contemplating drastic action was "Y2 (733949)" who's post is just a little later than yours in the list. If you want to read his post, you'll see that he specifically states that he defends the RIAA. I answered his post and, still angry, fell upon yours. Anger doesn't make for clarity (c'est connu) I apologise - but I still can't agree with you that one should try to talk to people like that.

you didn't see this one coming

[Prince Vegeta SSJ4]

Here is a definition for here.

Re:what the fuck

[Ced_Ex]

Problem: These are Senators we're talking about. You think the people who pass these sorts of ridiculous laws actually know how to turn a computer on? I mean, if they tried to fileshare, it'd be beyond their abilities to google "BitTorrent".

Which is why I propose this; should you choose to accept this mission we will disavow the existence of you.

We will need a crack team, one that consists of an expert driver to drive the getaway black early 80s GMC van, a former break and enter convict to bypass home security of a Senator's house, a computer nerd who can turn on the Senator's computer, google for a bittorrent client, install, and download music in the GBs, and lastly a leader who smokes cigars who can co-ordinate this squad who are illegally persecuted for crimes they did not commit in Iraq. We shall this team, the C++ Team.

Who's in?

Re:ex parte - and guns!

[Nom du Keyboard]

Tomorrow it may be my door that the US entertainment industry kicks down.

Does your country allow private lawful ownership of firearms? Kicking down a door, especially when you're not the police, can be quite dangerous in the United States.

Other countries clearly don't believe in lawful self-defence -- since they take away the very means to provide it.

I'm your driver

[DRAGONWEEZEL]

Current vehicle '99 pontiac Firebird 300hp o-60 in 5ish.

Only *cough* caught the one time i tried to run *cough*

Re:what the fuck

[InvalidError]

They are legally required to if they want "Safe Harbour" protection against liability for their customer's actions. At the very least, Safe Harbour requires keeping track of who owned what IPs and when, increasing the likelyhood of successfully tracking illegal online activity to its source(s).

If ISPs stopped logging IP allocation, they would no longer qualify for Safe Harbour and would be directly liable for their customers' actions. Such an ISP would get sued into oblivion by the *AAs.

Re:what the fuck

[InvalidError]

There is a law: the Safe Harbour provision in the common data carrier law. To be eligible for Safe Harbour protection against liability, ISPs must track IP address allocation (who owned which IPs and when) as an absolute minimum.

ISPs have to hold relevant records when they receive subpoenas but they may choose not to disclose anything to the requesters and there is nothing that the requesters can do about it in this case - this is privacy protection... I can imagine customers sueing their ISPs for breach of privacy and facilitating the *AA's targetted strong-arming settlement strategy. The only thing that should make ISPs disclose customer information is court orders issued by a judge after a formal lawsuit is filed and accepted so the *AAs would not get to pick their targets and pretend it never happened when they hit a tougher target than they bargained for. That would be the genuine Jon Doe due process - not getting to know the target until deposition day.

IANAL either... only an idealist.

Re:what the fuck

[eric76]

What section of the law requires ISP's to track IP address allocation?

As I understand it, the section this covers is Title 17, Section 512.

I've read though it without finding any such provision.

Re:what the fuck

[InvalidError]

It certainly exists in Canada... I thought the USA would have something like it. I'm surprised that it still does not after 9/11 to make terrorists who may coordinate efforts over the net and other such more potentially traceable, much to the friendly *AA neighbours's pleasure.

I bet it will happen sooner or later.

Re:They need a better expert (or somebody does !)

[chawly]

Neither a lawyer nor an American, but I find your post a little wonderful. An IP address is not a twelve digit code ? Well my IP address consists of 4 three digit groups separated by dots, as in 000.000.000.000 . For those of us who have difficulty with the arithmetic involved in the calculation of 4 times 3, it is perhaps easier to count the zeros in the (example) address give above. If faced with a problem after ten, the final two zeros are counted as "eleven (11)" and "twelve (12)". If, as you say, you are defending the RIAA, you are in good company my dear sir - a bunch of twerps who's idea of fun is to sue children.

Pretty Decent Job

[CaptainTux]

Personally, I think he does an excellent job at translating "Geek Speak" into ordinary lingo that both the judge and the other laypeople involved in the case will be able to easily understand. All in all, I think he also does a good job laying out why the RIAA's case(s) are generally flimsy and why this specific set of suites shouldn't ever see the light of a courtroom.

The only thing I somewhat disagree with him on is his assertion that an IP address, because of its dynamic nature, can't be used as an accurate measure of what internet provider account downloaded a certain file. If the ISP keeps decent records, it most certainly can determine which IP address was allocated to which user at any given time. The time the file was created on the users PC can be cross referenced with what user had that specific IP address at that specific time and it's pretty reliable. What *isn't* reliable though is WHO downloaded the file. Did "John/Jane Doe" themselves download the file or was the file downloaded by someone else via a hacked or unsecure WAP? Did someone visiting the person download the file without their knowledge?

Given the hodgepodge nature of the RIAA's prior suites and how technically flimsy they've been, I think we're very close to seeing judges start throwing these things out as a matter of course. It goes to prove that just because you have the money doesn't mean you always get your way.

No such thing as "Jury of your peers"

[pfleming]

Probably one could fix the entire legal mess in this country by requiring a jury of legal experts instead of a jury of one's peers. When one's peers are lagging behind some second and third world countries in math and english and reasoning scores, who on earth would want them on a jury? They'll buy the big flashy lawyer's story in a heartbeat, because obviously no one who looks and acts just like them could get the attention of such an obviously famous and important lawyer unless they had done *something*... I welcome the singularity, that's all I can say.

..."jury of your peers", that is we believe that we will be judged by a jury of our peers if accused of a crime. I wonder where that notion comes from. It's not in the US Constitution. The Constitution states:

"...an impartial jury of the State and district wherein the crime shall have been committed..."

That would appear to be a jury of impartial people. Why then does then idea of a jury of our peers permeate society? A jury of our peers would never convict anyone. Think about it. Some people get off sure, but imagine if OJ had a jury of former NFL playing, B-grade movie actors. What if Michael had a jury of face-lifted, bleached skin fading pop stars? Or if Martha had a jury of stock trading towel peddling home fashion divas? How about Scott Peterson having a jury filled with cheating husbands accused of killing their wives who were arrested with $10,000 cash on the way to the Mexican border? Jury of your peers indeed. The best you can hope for is an impartial jury. Stop saying "jury of your peers" because it doesn't exist or we would never convict anyone.

You are a pathetic human being

[flyinwhitey]

Nothing else, just thought I'd make a ridiculous statement of opinion in keeping with your post.

How sad and miserable people like you are, blaming an unrelated government for your own impotence.

See, if you weren't such a piece of crap, you'd stand up for yourself instead of jumping on the blame bandwagon. You know, be a citizen and actually hel run your government. But, you take the classic "blame someone else" tack.

What a disgusting victim mentality.

"Does somebody want to take a guess if I still like the US?"

Would you like to guess if any of us who lve is easily the greatest country on earth care about trash like you, or what you think?

Moron

[flyinwhitey]

"Well yes, the US puts a gun to everyones head, are you really that naive? The US tries to force it's values and political views on countries that it trades with."

And those countires can say no and deal with the consequences.

How spineless are you that you'll allow a country you apparently hate to rule your leaders?

Wait sorry, did I say spineless? I meant european, as they mean the same thing these days.