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."

Comments

Sounds like....

[bchabot]

Sounds like they're going down the same road as Chief Justice William Stoughton's acceptance of spectral evidence...

Re:Sounds like....

[Paul Jakma]

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.

Re:Sounds like....

[Ritz_Just_Ritz]

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

Spare me. When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight. If you can't be bothered to do that, then you've got no business taking your case to court. We're not talking about some farmer assuing his neighbor of stealing horses here. This is a big fat well-funded group that has the resources and teams of lawyers/investigators to gather the evidence correctly.

Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?

Re:Sounds like....

[cpt kangarooski]

Well, it may be indicative of something. It's not very good evidence, but it is evidence. The degree to which it is belivable is up to the jury. Clearly, if you were on the jury, you wouldn't believe it. But so long as a reasonable juror might believe it, there doesn't seem to be anything wrong with taking it to them. It's their job to decide this sort of thing.

Besides, even if they downloaded a file and had it, it's difficult to prove that that file came from the defendant's computer. It still largely comes down to how trustworthy a jury would find the RIAA witnesses and evidence to be.

Re:Sounds like....

[cpt kangarooski]

When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight

Well, this is a civil case, so as it happens no one is trying to prove anyone guilty of any crime. I guess they dodged a bullet there.

Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?

Sure. And a jury can decide which of the two possibilities is most likely to them (since that, and not the stricter 'beyond a reasonable doubt,' is the standard here), and then whichever possibility they find to be most likely is true, for the purposes of the case.

So if you were a juror, and you were being fair to both sides, and they asked you what you thought the file was based on the name, which do you think it probably would be, even if that probability was only a 51% likelihood?

Re:Sounds like....

[NewYorkCountryLawyer]

Yes they do flood the internet with junk files which look like song files but aren't. The only way to tell if it's a real song file is to listen to it from beginning to end. See Reply Memorandum of Law at pages 2-4. As you can see from the deposition testimony excerpted there, the company that 'investigates' for the lawsuits and the company that floods the internet with junk pseudo-song files is the same company.

Re:Sounds like....

[betterunixthanunix]

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

Undeniably correct? Which accusation are you referring to, because I know it wasn't the part about their business being significantly damaged by file sharing. In fact, that claim is undeniably FALSE, as this study points out: http://www.unc.edu/~cigar/papers/FileSharing_March 2004.pdf#search=%22file%20sharing%20record%20sales %22. Notice, in the abstract: Downloads have an effect on sales which is statistically indistinguishable from zero, despite rather precise estimates. This would seem to make sense, as most of us should be familiar with the sales reports from Kazaa's high point, which showed the CD sales had more than recovered since Napster's debut -- and Kazaa had far more traffic than Napster, further weakening the claim that the RIAA would be bankrupted by file sharing.

Perhaps this theory would help: most people who use file sharing networks would not have purchased the album in question anyway, so no actual sales were lost. Think about that statement, and think about who is using file sharing networks. Before Napster came out, were college students out buying hundreds of CDs (the equivalent of the thousands of MP3s that some had downloaded and shared)? Certainly not, most cannot afford to spend upwards of $5000 on album collections. So downloading those tracks should not be counted as a lost sale, any more than sharing CDs in a dorm building should (but I wouldn't put it past the RIAA to count it that way). This is why I am always skeptical of economists who say that millions of dollars per year are lost to piracy, because I am forced to ask whether or not the people using pirated music, movies, books, or software were actually going to buy these things to begin with (especially with software, especially when it costs more than $100). The problem is that basic economics does not apply here; the fact that music is available for free does not mean that people will automatically flock to the free stuff, as we learned that they should in economics 101, and the reasons behind this are still being studied.

Re:Sounds like....

[cpt kangarooski]

No. First, mens rea is not an element of copyright infringement. Infringement is a strict liability offense. At most, mens rea is only relevant in computing damages. Second, intent to infringe is not infringement or any other offense. There must have been actual infringement to support the case. So the contents of the file are crucial to the case. If the file contents were the plaintiff's copyrighted work, then that helps the plaintiff. If not, then that helps the defendant, since there is nothing wrong with sharing a misnamed file which is otherwise lawful to share, even if it's done unwittingly.

However, so far as we can discern what the contents were based on the name, which is a jury question, it's still possible to win a suit without actually showing what the contents are. But I wouldn't like to have to do that, since it's not a strong position.

download them

[managementboy]

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?

Reverse it

[LiquidEdge]

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?

stupid court system

[JeremyALogan]

If I were them I'd really like to beat my hands against my chest and cry "innocent until proven guilty, mother-fuckers", however this is civil, so they basically don't have to prove anything. We have a broken legal system.

Evidence

[Toba82]

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.

Continuing the spread of crap...

[Tsuki_no_Hikari]

"Our investigator saw a screenshot of an IP address we traced back to them."

"We used a reverse DNS lookup to find out that this was the computer used for the downloading."

"Our investigator downloaded a perfect copy of the file downloaded by the defendant in a process of reverse spectral resonance."

"We figured 'To hell with it' and crossed the beams. Once we realized the universe didn't end, we found a burn mark that resembled the offending computer's IP address."

What new wonders of the universe will the RIAA educate judges on next week? :D Oh, I can't wait!

Re:Continuing the spread of crap...

[TERdON]

The swedish Antipiratbyrån already has got people convicted with screenshots as the only evidence. You'll better hope they won't teach **AA that...

Re:WTF? Copies? Files?

[larry bagina]

The lady was using eDonkey or whatever. The RIAA downloaded 11 songs from her and filed a lawsuit. They have a screenshot showing that she was sharing 27 songs and want all them included in their lawsuit, even though they didn't actually download/verify 16 of the songs. That's my understanding, at least.

Re:Lack of evidence...

[DRJlaw]

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.

if a screenshot is the only prove

[aitan]

Well, I'm safe because right now I've made it very clear that I'm not sharing anything with copyright. A screenshot would look like this:
This is not Metallica - Enter sandman
This is not Madonna - Confessions On A Dancefloor
This is not King Kong (Peter Jackson)

Re:Lack of evidence...

[penix1]

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.

It goes to damages. The damages are determined on a per-violation basis. The RIAA is arguing that they don't need the actual files to be obtainable to prove damages. I have evidence that says that they do:

From:

http://blogcritics.org/archives/2002/10/04/081226. php

In one case, Warner Bros. demanded a particular subscriber be disconnected for illegally sharing the movie "Harry Potter and the Sorcerer's Stone." But the computer file identified by Warner Bros. in its letter indicated that it wasn't the "Harry Potter" movie but a child's written book report.

and...

Another letter, to Internet provider UUNet, wanted a subscriber cut off because they were sharing songs by former Beatle George Harrison. But some files were not songs at all. One was an interview with Harrison, and another was a 1947 photograph of a "Mrs. Harrison."

So yes, they need the actual files given this track record especially when they are seeking $150,000+ per file.

B.

This is a fine idea

[goldcd]

We locate the spam-seeder - take a screen grab of the file names - report them to the RIAA and watch them sue themselves.