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Programmer Challenges RIAA Investigators
NewYorkCountryLawyer writes "In court papers filed today in Manhattan federal court, programmer Zi Mei has slammed the investigation on which the 'ex parte' orders obtained in the RIAA's cases against consumers are based. Armed with Mei's affidavit, a midwesterner -- sued in Atlantic v. Does 1-25 in New York City as 'John Doe Number 8' -- has asked the judge to vacate the 'ex parte' order on the ground that the RIAA doesn't have the evidence it needs to get such an order. If Doe wins, the RIAA's subpoenas to the ISP, for its subscriber's identities, will be thrown out."
You will be crushed by RIAA! Rocket-subpoena arms-- ACTIVATE!
Here is an explanation of "ex parte".
Sheesh, evil *and* a jerk. -- Jade
Right now the RIAA is the only person talking to the judge about this case, because the defendents are all "John Doe" and thus are unable to be identified and brought before the judge.
From the impression that I gett, I think RIAA is trying rigerously to get a finding against these individuals for copyright infringement, and then get their identity. More likely, they're using these ex parte appearances (where the defendent isn't present) to get the judge to authorize them to be able to obtain the names required in order to bring a proper suit against these people.
I'd say this is pretty similar to a situation where someone breaks into your house, and leaves a very weak trail, and the cops peeter out. So, you sue the person as a John Doe, then try and use that to find out who John Doe is.
Basically, it's like putting the cart before the horse to me. They're suing people before they even know who they're suing. For all they know, they could be suing someone on their legal team, or even the judge!
I am unamerican, and proud of it!
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.
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?
I absolutely disagree. I'm the registered agent contact for a regional ISP and routinely receive RIAA communications regarding their allegations of offenses within our address space. Here's a few aspects of my ongoing experience with the RIAA and other intellectual property protection parties (mostly publishers in my experience outside of the RIAA):
The appropriate response is a legal one, and mind you, a legal one that has a letterhead of partner names that spans the top of the piece of paper (meaning not a small private practice, but a large firm that is enough to scare the RIAA into understanding your counsel has deep resources that can counterclaim and hurt them).
Another strong recommendation is for all smaller ISPs to provide their upstream with a letter on the lawfirm's letterhead just briefing them on your compliance with the registered agent provision, requesting evidence of their compliance, and a subtle reminder that if they ever fail to follow the law, they'll get to know your counsel really well as you recover damages from business interruption, damage to goodwill and all sorts of exciting, expensive claims.
This letter will probably cost you $300 to $500 depending on your firm, but it'll save your ass. It has done so for us at least two times when the RIAA completely ignored the law and sent its night-school, white-shoe attorneys after our upstream carrier.
Oh... and in my investigation of the John Does, I've usually found P2P running in a bit more than half the cases with parents unaware that Bearshare was loaded by their minor child, and in about a third the cases, no evidence in traffic flows of any P2P (nor any historical data from NIDS monitoring). Not that we'd ever keep such data (don't and have a policy of wiping it weekly).
The real problem with the state of civil litigation is that corporations are allow to act as a "person". It's a matter of an inequity of resources. A corporation typically has enormous financial, and legal resources compared to an individual.
The real solution is to treat corporations as the commercial organizational entities that they truly are, rather than as persons. For that matter governmental organizational entities also ought to be treated as such.
There needs to be a change to the civil standard between individuals from *proof by a preponderance of evidence* to a more rigorous standard. Proof beyond a reasonable doubt is too strong a standard a civil standard between individuals, or between organizational entities. In a civil case between an organizational entity, and an individual where the organizational entity is the plaintiff, then the *reasonable doubt* standard ought to hold.
Part of the reason for the *proof beyond a reasonable doubt* standard in criminal cases is to prevent malicious prosecution. A high standard for burden of proof in criminal cases reduces the potential for false witness to be used as a means to 'get even with', harass, or intimidate individuals. The high standard lessens the potential impact of 'frame ups'.
"Oh drat these computers, they're so naughty and so complex, I could pinch them." --Marvin the Martian
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.
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.
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.