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RIAA Victims Bring Class Action Against Kazaa

Posted by Zonk on from the playing-right-into-their-hands dept.

NewYorkCountryLawyer writes "In Chicago, Illinois, a Kazaa customer has filed a class action against Kazaa, Lewan v. Sharman, U.S.Dist. Ct., N.D. Ill 06-cv-6736. The lead plaintiff, Catherine Lewan, was a Kazaa customer who was sued by the RIAA for her use of Kazaa, and paid a settlement to the RIAA, and she sues on behalf of others in her position. In her complaint(pdf) she alleges, among other things, that Kazaa deceptively marketed its product as allowing 'free downloads' (Complaint, par. 30); it designed the software in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37); and it surreptitiously installed 'spyware' on users' computers which made the shared files folder accessible to the Kazaa network even after the user had removed the Kazaa software from his or her computer (Complaint, par. 42-45)."

31 of 288 comments (clear)

  1. Of course I don't support copyright, but... by dada21 · · Score: 5, Insightful

    ...I also don't support using the courts to try to decide who is a victim and who isn't. For me, I'd rather buy optional insurance to protect my transactions than worry about suing someone.

    This is another case that reminds me of so many court cases and other reasons to ask the State for help:

    "It wasn't my anger, your honor, it was the gun!"
    "It wasn't my inability to stop eating, your honor, it was the pill!"
    "It wasn't my irresponsibility to save for the future, your honor, it was commercial society!"
    "It isn't that I refuse to learn a trade and stick to it, it is just fair to pay a living wage!"

    Sheesh. Yet another waste of time that will only make the lawyers wealthier and the State more powerful.

    1. Re:Of course I don't support copyright, but... by SatanicPuppy · · Score: 5, Insightful

      Welcome to the land of no accountability. We don't hold anyone accountable for what they do here, not our politicians, not corporate CEOs, and definitely not morons who hurt themselves or break the law.

      It's always someone else's fault.

      --
      ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
    2. Re:Of course I don't support copyright, but... by dada21 · · Score: 4, Interesting

      I've received at least 5 short contracts because of slashdot -- contracts that have paid at least 5 figures each.

      Almost everything I get from slashdot is worth more than the time I spend writing on it. People respond to my posts, and I use those responses to better understand various topics and items -- politics, tech, lifestyle. This is my business, so the input I gather here helps me cultivate a better product for my customers, thereby raising my income. I would say that I probably receive more out of the responses here that I would doing any continuing education or external study. Whereas most educations are antiquated and take years to catch up, slashdot is NOW and tells us about the current "geekthink." I don't think one can spend their time better if they're consultants. You'd also be shocked at how many employers read slashdot regularly, and take steps to hire those who have interesting viewpoints.

      A fool with his money is the fool that doesn't think about their return on every purchase -- whether a financial profit, emotional profit or even time-savings. For me, I receive the education and opinions of thousands. For $10 and an hour a day of time invested.

    3. Re:Of course I don't support copyright, but... by Kelson · · Score: 5, Informative

      The spyware claim (keeping the shared folder shared even after uninstalling Kazaa), if valid, is the only one that might have any merit.

      Everything else, though, smacks of "Look what you made me do!" blame-deflection.

      I sued Home Depot
      'Cause they sold me a hammer
      Which they knew I might drop on my toes
    4. Re:Of course I don't support copyright, but... by elrous0 · · Score: 3, Insightful
      I somehow suspect the RIAA itself may be behind this lawsuit.

      -Eric

      --
      SJW: Someone who has run out of real oppression, and has to fake it.
    5. Re:Of course I don't support copyright, but... by gt_mattex · · Score: 3, Insightful

      Or outright profit for that matter.

      --
      "No doubt one may quote history to support any cause, as the devil quotes scripture." - Learned Hand
    6. Re:Of course I don't support copyright, but... by wawannem · · Score: 4, Insightful

      Although you may be right, I think there may be some merit to her case. Do we punish the owners of the masses of infected/infested PCs who spew out tons of email? We assume that everyone understands technology and legal issues the way we do, but in fact, I would say that it is very possible (even likely) that most people don't understand the ramifications of using Kazaa. Imagine a teenager showing a grandparent the library of music available online through Kazaa. Having never used the software, I can't say whether or not there are warnings about the dangers of trading copyrighted content, but if the warnings are obscure and not prevalent (like the warning labels of cigarettes) then maybe they should be held accountable.

    7. Re:Of course I don't support copyright, but... by Thansal · · Score: 3, Informative

      ummm, IANAL, but isn't the POINT of suing to recoup losses?

      Justice is for criminal law, civil law is for reperation of damages/lost income/etc, etc. Not for "justice". The only place "justice" comes into is paying some one for their "psycological truama" or "pain and suffering", and those I tihnk are just rediculous anyway. If some one HARMED you then what they did is almost always illegal, and thus is covered by criminal law.

      I guess that is just my oppinion on law, probably I am wrong.

      --
      Do Or Do Not, There Is No Spoon, There Is Only Zuul. Everything in the above post is probably opinion.
    8. Re:Of course I don't support copyright, but... by poot_rootbeer · · Score: 4, Insightful

      I also don't support using the courts to try to decide who is a victim and who isn't.

      What, then, do you think the courts are supposed to be used FOR...?

      And did you really need to construct FOUR strawman arguments that may never have actually been argued in a courtroom? Wouldn't one have been enough to support your fallacy?

    9. Re:Of course I don't support copyright, but... by dada21 · · Score: 3, Insightful

      What does paying for slashdot give you that you couldn't get with a free subscription?

      Very little. My reason for subscribing is (in order of importance):

      1. To support the site with my money, showing that it has value.
      2. To generate a tiny level of respect for those who also subscribe or give a subscriber bonus to their own personal mod modifier.
      3. Receive the chance to read articles before they're slashdotted.

    10. Re:Of course I don't support copyright, but... by cnelzie · · Score: 3, Interesting

      "It isn't that I refuse to learn a trade and stick to it, it is just fair to pay a living wage!"

      This last strawman argument you have made is highly disingenuous of you.

      Yes, it is fair to pay a living wage and not every single person has the opportunities to put themselves into a position for which they can begin to learn, let alone stick to a trade of some sort. Sometimes, this is simply because someone was born with less intelligence than someone else. Sometimes this is because the environment they were raised within handicapped them, with either parent's who cannot read or are simply "busy" with other things.

      A living wage allows a person the opportunity to advance him or herself and raise him or herself out of the situation he/she lives within. This is better for all of society, because it brings greater potential for people to earn more and thus purchase more expensive items, thus bringing the price of such items lower for all, while simultaneously increasing the profit margins of the manufacturers and retailers of those goods due to the economy of scale.

      --
      If you ignore the other uses of a tool, does that make the tool less useful, or you less useful?
    11. Re:Of course I don't support copyright, but... by sumdumass · · Score: 5, Insightful

      It is not Kazza's duty to inform it's customer base of the various laws that cold be broken. Ford or toyota do not place warnings on the stering wheel or fuel tank's cap warning about driving too fast for conditions or speeding or having a valid drivers license or even insurance before operating. In most states/areas. you don't even need a valid drivers license to buy a car. Try getting out of a ticket by claiming the manufacturer never warned or instructed you about the laws. Try going back after them when you gte busted for breaking a law they never informed you about.

      It is the consumers obligation to know what they are using and how it to be used. As with almost everything else, Kazza, cars, kitchen knives, ropes, chains,/whatever can be used in a way that isn't legal. Furthermore, It could be not legal in one area but legal in another. Or under certain circumstances were maybe downloading an audio file of the garage band next door is and downloading three doors down might not be. This is just like driving a car down the street isn't illegal but driving a car down the street without a license might be.

      The only merit I can see from this suit is were it says the shared folders still shares files after you try to remove the software and the software makes it appear that you did. The difference in this and small label on the tobacco packs is that the tobacco companies were force to place the warnings there and actively campaigned to deny the health risks. Kazza has always claimed downloading and sharing someone else's copywriten material without there permission was not legal. They kust claimed that there are legal uses like open source software or situations were the copyright hold places the files online to the shared.

      In contrast, that would be like the tobacco companies claiming that cigs make good cleaning agants when used in a certain manor instead of claiming the surgeon general warning were bunk and smoking is healthful.

    12. Re:Of course I don't support copyright, but... by mangu · · Score: 4, Interesting
      Do we punish the owners of the masses of infected/infested PCs who spew out tons of email?

      We should.

      We assume that everyone understands technology and legal issues the way we do, but in fact, I would say that it is very possible (even likely) that most people don't understand the ramifications of using Kazaa.

      They should. Robert Heinlein wrote in 1949 in his short story "Gulf":

      "If the average man thinks at all, he does silly things like generalizing from a single datum. He uses one-valued logics. If he is exceptionally bright, he may use two-valued, 'either-or' logic to arrive at his wrong answers. If he is hungry, hurt, or personally interested in the answer, he can't use any sort of logic and will discard an observed fact as blithely as he will stake his life on a piece of wishful thinking. He uses the technical miracles created by superior men without wonder nor surprise, as a kitten accepts a bowl of milk. Far from aspiring to higher reasoning, he is not even aware that higher reasoning exists. He classes his own mental proccess as being of the same sort as the genius of an Einstein. Man is not a rational animal; he is a rationalizing animal.
      For explanations of a universe that confuses him he seizes onto numerology, astrology, histerical religions, and other fancy ways to go crazy. Having accepted such glorified nonsense, facts make no impression on him, even at the cost of his own life. Joe, one of the hardest things to believe is the abismal depth of human stuipidity.
      That is why there is always room at the top, why a man with just a little more on the ball can so easily become governor, millionaire, or college president - and why homo sap is sure to be displaced by New Man, because there is so much room for improvement and evolution never stops.
      Here and there among ordinary men there is a rare individual who really thinks, can and does use logic in at least one field - he's often as stupid as the rest outside his study or laboratory - but he can think, if he's not disturbed or sick or frightened. This rare individual is responsible for all the progress made by the race; the others reluctantly adopt his results. Much as the ordinary man distrusts and persecutes the process of thinking he is forced to accept the results occasionally, because thinking is efficient compared with his own mauderings. He may still plant his corn in the dark of the Moon but he will plant better corn developed by better men than he.
      Still rarer is the man who thinks habitually, who applies reason, rather than habit pattern, to all his activity. Unless he masques himself, his is a dangerous life; he is regarded as queer, untrustworthy, subversive of public morals; he is a pink monkey among brown monkeys - a fatal mistake. Unless the pink monkey can brown himself before he is caught.
      The brown monkey's instinct to kill is correct; such men are dangerous to all monkey customs.
      Rarest of all is the man who can and does reason at all times, quickly, accurately, inclusively, despite hope or fear or bodily distress, without egocentric bias or thalamic disturbance, with correct memory, with clear distinction between fact, assumption, and non-fact. Such men exist, Joe; they are 'New Man' - human in all respects, indistinguishable in appearance or under the scalpel from homo sap, yet as unlike him in action as the Sun is unlike a single candle."

      ...


      "I confess to that same affection for democracy, Joe. But it's like yearning for the Santa Claus you believed as a child. For a hundred and fifty years or so democracy, or something like it, could flourish safely. The issues were such as to be settled without disaster by the votes of common men, befogged and ignorant as they were. But now, if the race is simply to stay alive, political decisions depend on real knowledge of such things as nuclear physics, planetary ecology, genetic theory, and even system mechanics. They aren't up to it, Joe. With goodness and more will than they

    13. Re:Of course I don't support copyright, but... by Vellmont · · Score: 3, Insightful


      So you want to subsidize stupidity?


      It kind of amazes me that this has become an argument. Just put the word subsidize in front of any form of funding and put people on the defensive.

      So you want to subsidize transportation?
      So you want to subsidize schools?
      So you want to subsidize the Army?
      So you want to subsidize the elderly?
      So you want to subsidize Africa?

      The basic premise seems to be "Why can't these lazy bastards stand on their own two feet and pull themselves up by their bootstraps!!"

      Which ignores the basic fact that no one stands on their own two feet. We're all dependant on one another. I'm a bit tired of the "self made man" fallacy.

      --
      AccountKiller
    14. Re:Of course I don't support copyright, but... by wawannem · · Score: 3, Insightful

      I never yelled "There should be a law!"

      I think you are completely missing my point. I agree that people know that stealing is wrong, but what I suggest is that many people may not realize that listening to music they haven't paid for is stealing. Before the massive ad campaigns, I think most people didn't realize that they could be sued for downloading music. I had to explain to a sister-in-law that napster/kazaa was a bad idea because they were stealing and their response went something like: "Well... I listen to it on the radio without paying for it, is that stealing? If not, how is it stealing when I listen on my computer?" This is an educated (master's degree) adult who was confused on the matter.

      I don't doubt that people don't steal because it is wrong, but if such a mass of people are stealing could it be possible that they don't realize they are stealing?

    15. Re:Of course I don't support copyright, but... by mangu · · Score: 5, Insightful
      They assume that they pay for tangible items, and that digital copies aren't stealing because there is no physical DVD or CD.


      I fully agree with this. Copyright violation is not stealing.


      But my point wasn't about this very important difference. My point, on which I extensively quoted Heinlein's opinion, is that being considered "intelligent, educated citizens" isn't enough if your education is limited to non-technical issues. This was already true when Heinlein published his story more than five decades ago, and it's much more relevant today.
       

    16. Re:Of course I don't support copyright, but... by mangu · · Score: 4, Interesting
      I always thought Heinelin was an arrogant twat


      Perhaps you have only read his later works, after 1975 or so, and then I agree with you. However, the story I quoted, written in 1949, is one of the most prophetic works of science fiction ever written.


      People always complain "where is my flying car", because they don't realize that science fiction isn't about technical details, but mostly about the sociological changes brought by evolving technology. "Gulf" was a fictional story set in an indeterminate future, but actually Heinlein was writing about the quickening pace of evolution of technology in the 1940s and how people were unprepared for that reality.


      How do you like one of the lines I quoted about how "political decisions depend on real knowledge of such things as nuclear physics, planetary ecology, genetic theory"? Don't you agree that that sentence is absolutely true today? Whoever knew what "planetary ecology" was about in 1949? Heinlein was a true prophet...


  2. In other news... by ScentCone · · Score: 3, Funny

    ... they will be serving Free Lunch at the trial.

    --
    Don't disappoint your bird dog. Go to the range.
  3. She might as well... by Fedorpheux · · Score: 5, Insightful

    ...sue the voices in her head that told her to download copyrighted material.

    --
    Somewhere between a super nerd and a rock star...
  4. Use Your Eyes! by nbannerman · · Score: 3, Informative

    If I buy a house, and then don't pay the morgage, they'll repossess the house. I can't use the argument of 'I didn't read the Terms and Conditions' to get myself out of the mess I'm in.

    Last time I installed a piece of software like Kazaa, it stated what it was going to do at each step, and clearly explained what would happen, and that I shouldn't share files to which I didn't own the copyright.

    Sueing for being stupid is... well, stupid.

  5. It's all there.... by emor8t · · Score: 3, Informative

    Read the fine print lady, all the stuff your sueing for is painfully obvious. Had you bothered to do any research on Kazaa, you would know it's issues! You got caught, sucks to be you. But it's not Kazaa's problem, they are simply providing a service.

  6. Ridiculous. by SatanicPuppy · · Score: 4, Insightful

    This is like smokers suing convenience stores because that's where they bought the smokes that gave 'em lung cancer.

    I bet these same people all felt like devious little rule breakers when they were doing all that copyright violation, secure in the knowledge that no one could ever catch them.

    I can kinda see how the record companies can win a suit against the p2p providers, saying that their software enabled all these people to violate copyright law, but how the hell can all these people expect to win a suit against a company whose software enabled them to break the law? Kazaa's EULA spelled out that the software should only be used for legal purposes, but even if it didn't this will die because there is a huge amount of precident in prohibiting companies from being sued when their products were used in the commission of crimes (hello, gun manufacturers).

    If only common sense were more common.

    --
    ad logicam Claiming a proposition is false because it was presented as the conclusion of a fallacious argument.
    1. Re:Ridiculous. by garcia · · Score: 4, Insightful

      This is like smokers suing convenience stores because that's where they bought the smokes that gave 'em lung cancer.

      It's more like suing your drug dealer after you go to prison for getting caught with a rock.

  7. Look, I hate RIAA as much as anyone by Anonymous Coward · · Score: 3, Insightful

    I hate RIAA as much as anyone, but this is just ridiculous. The person downloaded software and installed it, for the express purpose of stealing music. They knew there was no free lunch. Kind of like somebody approaching you and offering to give you a bunch of car stereo equipment out of their truck for $10. What's that saying? If it seems to good to be true, it is? In the latter case, you'd be guilty of receiving stolen property. In this case, you are guilty of copyright violation. End of case. Just another example of trial attorneys lining their pockets with reprehensible class action lawsuits.

  8. I have a lawsuit idea. by Lethyos · · Score: 4, Interesting

    I am going to buy a gun, completely ignorant of how to use it, and start playing around with it. If someone gets shot (including myself) I will sue the company that made it. Horray for logic!

    --
    Why bother.
  9. Customer? by StarvingSE · · Score: 4, Insightful

    How can you be a customer of a company that provides Free as in Beer software?

    I call bullshit on the fact that the person claims she didn't know how kazaa worked. Its explained right here for cryin' out loud.

    All this person is doing is trying to get their money back that was extorted by the RIAA. Her lawyer probably weighed the difficulty of a counter-suit against the RIAA and suing Kazaa. Guess who won.

    I call shenanigans on this one. Tagged: Traitor

    --
    I got nothin'
  10. Any app that installs spyware should be sued! by ArcherB · · Score: 4, Interesting

    I'm tired of spending hours removing hidden spyware and addware from machines where someone unknowingly that crap while trying to install something else. For example, my uncle has to use a computer for work. His daughters would constantly download the app-of-the-week and every Christmas, I would spend 3-4 hours removing all that crap from his hard drive.

    Yeah-yeah, I know it may be mentioned in the license agreement, but do you guys read every license agreement that comes across your screen? Besides, if Ford put a note in the glove box of every car that said, "Vehicle will send adds to your TV set at random intervals, even after vehicle is sold." would that save them from lawsuits? Would it make you guys feel better if the government put a label on all phones saying that they might be listening?

    --
    There is no "I disagree" mod for a reason. Flamebait, Troll, and Overrated are not substitutes.
  11. Only in America. by jbssm · · Score: 4, Insightful

    Tss, tss, only such a stupid legal system as the American could lead people to do this kind of stuff.

    If you had a legal system of some righteousness, you would force someone that files a case against another person (unless for crimes that involve violence) to pay the defendant legal costs in case the defendant was found innocent... that way, all those stupid legal cases we see in America would never have been brought to justice in the first place ... much less find a jury stupid enough to actually agree you are right (yeah that's right you also have that idiot system in which you call a bunch off illiterate people from the streets, that know nothing about justice, and get them decide if someone is innocent or guilty).

    1. Re:Only in America. by Angst+Badger · · Score: 3, Interesting

      The problem with the "plaintiff pays" model is that even with entirely legitimate complaints, hardly anyone would be able to risk suing a company with deep pockets. Been wronged by Behemoth Industries? Are you sure you can win the case? If you're not 100% sure, you could get stuck with several million dollars in attorneys' fees. Even if the courts were 99% accurate in their judgments, do you want to risk the 1% chance that you'll end up as a pauper for life?

      Just as an aside, you might also want to consider that your complaints about "illiterate people from the streets" would carry more weight if you used complete sentences, correct punctuation, and proper capitalization.

      --
      Proud member of the Weirdo-American community.
  12. Is Ignorance Ever An Excuse? by blueZhift · · Score: 4, Interesting

    I know that many here on /. have already dismissed the person filing it as stupid. But I really think this case may help test the question of whether someone's ignorance of how computers and networks work can be held up as an excuse for copyright violations, etc.. At least in the case of automobile driving, all drivers are supposed to have valid licenses which were presumably obtained after training and passing the appropriate tests. But I don't recall any such requirements to operate a computer networked to the internet. I've encountered plenty of smart people in technical and scientific fields who don't really know what they're doing on a computer. So the average Jane, might be excused for not having too much of a clue about what is really happening on the machine. Of course the judge might still throw it all out because she should have read the licenses, but generally our legal system tries not to punish people unless they are competent enough to know what they are doing is wrong. Needless to say, it isn't always successful in this.

    --
    To the making of books there is no end, so let's get started
  13. I think you missed the point..... by Anachragnome · · Score: 3, Insightful

    While I am sure the person that is suing would be happy as a clam to get some financial gain from this, I think alot of you are missing the point.

    What this case is trying to do, in a round about fashion, is to set the stage for other actions.

    If this person wins this case it opens the doors for alot more. Once it can be shown in court that Kazaa either misled or outright lied to its users, it can then be shown that Kazaa was AIDING AND ABETTING the the criminal violation of copyright laws. Once that takes place, then Kazaa itself can be held liable for CRIMINAL actions.

    It would not surprise me in THE SLIGHTEST that the RIAA is behind this themselves. Its all about "precedence". Once you win a small case, its only makes it that much easier to use that small case as a foothold in larger, farther reaching and far more serious cases.

    While I believe that the person filing the suit, and everyone else that steals copyrighted material should be prosecuted, I also believe that anyone that made it possible for them to do so should be held accountable as well.