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RIAA Wants to Include Song Files it Can't Produce
NewYorkCountryLawyer writes "In UMG v. Lindor the RIAA is trying to include song files it doesn't have copies of as part of its 'distribution' argument. The defendant Marie Lindor is asking the Court to preclude them from doing that. She points to the RIAA's own interrogatory response in which the record companies swore that their case was based upon their investigator seeing a screenshot and then downloading 'perfect digital copies'. They produced eleven (11) copies of song files, but want to be able to prove twenty seven (27) other songs for which they can't produce the files."
How about starting that donkey and downloading them? A copy is a copy, isn't it?
Why don't they share with us what format they got the first few "perfect" copies... Monkey Audio?
How about someone sue the RIAA for having kiddy porn on the RIAA web server? No, I can't prove it. But I just said it was there didn't I?
Saving the World: One Drink at a Time
Evidence isn't needed when you aren't expecting to win. The RIAA doesn't care about winning the case, they care about scaring people. It still works.
I pretend to know more than I really do by mooching off google and wikipedia.
The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.
Don't they also pay companies to flood P2P networks with junk files?
I don't see how a filename is indicative of anything, other than the string concerned having been distributed. Not even on balance of probability.
I use Friend/Foe + mod-point modifiers as a karma/reputation system.
If on the other hand, the enforcers can maintain a suit without showing that they downloaded copies from the alleged infringer, then they really have no logical way of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.
I'm sorry, but there is a very logical way of establishing what the "p2p'er" was sharing was infringing, and it's called an inference based on circumstantial evidence.
Let's be quite clear
1. The plaintiff's agent, "the enforcer", obtained someone's IP address and a list of shared songs.
2. The plaintiff's agent actually downloaded 11 of the shared songs, so that the plaintiff was presumably able to verify that the songs actually corresponded to the file's name and/or metatags.
3. You have a list of shared filenames and quite possibly metadata tags, and concrete evidence that items on the list actually are what they purported to be.
4. You can quite logically draw the conclusion that the shared filenames really are what they purport to be.
The burden of persuasion on in a civil case is not "beyond a reasonable doubt," but a "preponderance of the evidence." If you can stand up before a jury or ordinary people and convince them that it really is more likely than not that each file downloaded from this source was really something other than what it claimed to be, then you need to start your own law practice. Also, the defendant in the case is arguing that they shouldn't even have to make that argument to a jury, simply because "the enforcer" did not download each and every file.
I'm reasonably sympathetic to the defendants in these cases given the haphazard manner in which the license holders are initiating their lawsuits and the excessive penalties, but one you get beyond matching an IP to a subscriber, the arguments that the defendants are making quickly start to become ludicrous. Open wireless access points are attractive nuisances. Children using the office computer to amass a thousand songs are negligently supervised. You can surely argue against these points if there is a de minimis infringement, but when someone is building a trading a library of a thousand songs, it's hardly tenable to argue that ignorance is an excuse.
Feel free to argue that you must have all the evidence you need to win a trial before filing a lawsuit, and to argue that you must have actual copies or physical specimens of each an every infringing work or device. When a corporation is a defendant, it will be more than happy to use those ludicrous arguments to its advantage to make it even more difficult for individuals to prove and obtain relief for copyright infringement, patent infringement, theft of trade secrets, and the like. It won't actually happen, and the defendants are going to lose these types of arguments, but the intellectual breadth of the typical Slashdot legal analysis continues to astound me.