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RIAA Mischaracterizes Letter Received From AOL
NewYorkCountryLawyer writes "In Elektra v. Schwartz, an RIAA case against a Queens woman with Multiple Sclerosis who indicates that she had never even heard of file sharing until the RIAA came knocking on her door, the judge held that Ms. Schwartz's summary judgment request for dismissal was premature because the RIAA said it had a letter from AOL 'confirm[ing] that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed.' When her lawyers got a copy of the actual AOL letter they saw that it had no such statement in it, and asked the judge to reconsider."
...but what in god's name does the defendant having MS have to do with anything? Granies, children, the infirm...c'mon. Leave the heart-string pulling crap out next time.
IANAL but frankly I don't see the 'mischaracterizes' part of this whole story. From what I can tell, AOL matched one or more IPs directly to the defendant - name, street address, state and ZIP. If they didn't have an account with AOL how did they know that information?
Looks like the RIAA has probable cause to continue litigation because AOL did in fact correlate an IP that downloaded the music to the defendant. It doesn't prove anything but the RIAA still should have the right to continue with the lititgation, as much as it pains me to say it.
Maybe I'm just not seeing the problem here. Maybe I need someone to clear it up or just put on the 'Evil RIAA' blinders that I guess I'm supposed to wear when reading slashdot.
"Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?" - Patrick Henry
because the RIAA said it had a letter from AOL 'confirm[ing] that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed.' When her lawyers got a copy of the actual AOL letter they saw that it had no such statement in it, and asked the judge to reconsider.
To say that something "confirms" something is not the same as saying that it has a specific statement. If they have a witness who can testify as to how the internet works and that packets were received from that IP address at that time, then guess what?
You guessed it, the letter would then "confirm that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed."
Jeez, you'd think we were biased against the RIAA or something.
I believe it is relevant and I'll explain why. The RIAA's interest in this case is not the rewarding of compensation for any damages they have suffered - their interest is in representing to the public (not the courts) that 1) copyright infringement is the same as theft 2) if you steal from them they will come after you and 3) when they come after you you'll not like it at all. The RIAA hopes that after enough of these lawsuits no one will bother with downloading their material because of fear of personally devastating law suits. If this is the case (and I've got to say that I have made AT LEAST one error before in my life) then the RIAA is clearly involved in a public relations campaign - the outcome of individual cases themselves is of little concern. Considering all this, if you find yourself opposed to the RIAA tactics and current IP law in general it would behoove you to make the RIAA out to be a bunch of heartless villains who prey on the disabled. The more terrible they seem the more ground they loose in the PR realm and the more likely they are to protect their IP in a manner more condusive to everyone's long term benefit (e.g. a new business model not so hampered by DRM).
Don't worry about the mule, just load the wagon.
I think the mischaracterization comes from RIAA's claim that AOL's letter shows that the defendant not only had an account with AOL, but was downloading copyrighted information with it. The letter shows only the first part - the second part is a separate claim by the RIAA.
Those who can, do. Those who can't, sue.
Why should we permit this kind of practice. I can understand the greed of record companies, but lawyers are officers of the court and MUST be required to be truthful and respect the legal process, even at the expense of their clients. The tactics used by the RIAA lawyers are calculated to deprive a reasonable defense to victims of these actions. Lawyers who represent these kind of actions are not fit to practice.
Is anyone else fed up with this phrase? Nearly everything on the Internet is copyrighted. Everything on my website is copyrighted. The Xen kernel I just download is copyrighted. The ISOs of FC6 I just downloaded consist of thousands of copyrighted programs.
My webhost, for example, displays a warning every time I ssh in that says it's a violation of the terms of service to store "copyrighted materials" on the server. Like a smartass I emailed them a few times and asked if that meant I would have to release my songs in the public domain and why they violate that by storing/using copyrighted tools (the Linux system, Apache, etc), but didn't get any replies.
This almost pisses me off as much as calling copyright infringement "piracy".
</rant>
"It ain't a war against drugs.it's a war against personal freedom" --Bill Hicks
Look at the former profession of most of those who make our laws. That will answer your question.
The RIAA is claiming this lady is putting musicians out of work and wrecking the entire economy (which is irrelevant), so the lady brings up equally irrelevant stuff (I have MS).
I'm not sure why the RIAA gets a pass on their outrageous claims of looking out for musicians...that's a complete fabrication since the RIAA does not work for recording artists, they work for recording distribution companies. But a lady with MS is pounded on?
But I do expect that corporations and officers of the court to tell the truth in a statement to the judge. The lady didn't lie when she had MS, but the RIAA lied when it said it had a special letter from AOL. And your concern is for the fact that the lady brings up MS? Maybe you want to tear into Michael J Fox, too?
I mean, separate the BS from the facts. Here they are as I read them:
RIAA: Hey lady, you committed copyright infringment
Lady: No I didn't, I don't even hook up to the internet the way you claim. Your honor, please throw this out
RIAA: Your honor, we have the actual proof from AOL
Judge: In that case, no.
Lady: Let me see the letter.
RIAA: Uh... here?
Lady: It doesn't say anything about me. In fact, it keeps mentioning something about a Wookie on Endor. What does that mean?
Ignore the MS part. This is what we have. If the judge threw the lawyer in jail for a week and sanctioned him, along with a few RIAA execs every time they lied, I suspect this kind of behavior would stop in about 20 seconds.
As I read it, that is a list of many customers, all of which are blanked out except one (the person under discussion).
I.e., RIAA gave AOL a list of IP addresses (they may also have given them a list of times, but I suspect not). AOL responded with a time that those addresses were in use.
So, RIAA *said* that AOL had confirmed that she was a file sharer. What AOL *actually* said was only that she used that IP address, once, at a certain time.
AOL may be able to correlate that to their own records, saying that a certain IP address was downloading material at a certain time. Or not.
Protoplasm. Quiet Protoplasm. I like quiet protoplasm.
Look, I appreciate the diligence with which New York Country Lawyer is trying to keep his name on the top of Slashdot...er, keep Slashdot up to date on the minutiae of his cases. But can the editors please stop accepting these posts? Seriously, the legal jargon may sound exciting, but there is actually nothing worth reporting in the details of the timing of summary judgment motions. Seriously, do I write in to slashdot with the minute-by-minute details of my job?
As for New York Country Lawyer's claim that the linked AOL letter didn't say what the RIAA said it did (that his client--who tragically, but completely irrelevantly has MS--was downloading music), the AOL letter identifies the client by her IP address. Now, if the RIAA has information (albeit from another source) that shows that IP address was downloading music, than that shows, at the very least, that there is a question of fact as to whether the client was downloading music. And therefore, the requested summary judgment is in fact not appropriate.
I disagree. Currently the RIAA activities are pretty much underground. Flip on FOX, CNN, or any of the talking-head shows or even the nightly news. Not a lot is mentioned of things like this. But I think all it will take is a slow week in the news. Imagine a day when Congress is out of session (like next week sometime) and perhaps a day when nothing terrible has happened domestically. Then, imagine you are a producer for one of the above networks and you come across this sad story of the RIAA suing a woman with MS. It would be a perfect segment, interview her, try and get an interview with the RIAA (I bet they will "decline to comment on current litigation"), and even bring up the statements of the record exec. whose son downloaded copyrighted music, whereupon the record exec. had a "stern talking" to him. Then, perhaps 60 Minutes or Dateline (both terrible news outlets by the way) will pick up the story. Then, in a matter of a week, the RIAA's tactics of behavior modification (which you mention above) will backfire. The results of their litigation will go from striking fear into the hearts of possible consumers to inciting anger and indignation into the hearts of same possible consumers.
Don't worry about the mule, just load the wagon.
Here is what the RIAA lawyer wrote in his letter
Defendant's October 28, 2006 letter also provides no basis for a motion for summary judgment. Defendant's Internet Service Provider, America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffs' sound recordings were downloaded and distributed to the public without Plaintiffs' consent.
AOL confirmed that the Defendant was the owner of the account. The rest of the sentence describes the account and is not a statement that AOL confirmed what the account was being used for.
This should be fairly obvious to most people who can read English.
Don't get me wrong, this I'm not making a claim to a legal fact, just that the status of the defendant is taken into account by the judge. It's perfectly reasonable to address that fact in the cour memos, since it draws sympathy, and it highlights the degree to which the practice of randomly selecting defendants with little or no concern to physical evidence of guilt is an injustice. That's a very important word to a court. Judges don't like injustice, and the constitutions of the various states (and of course the U.S. constitution) grant judges a wide array of abilities to limit, curtail, and disbar injustice.
On a more practical level, the fact that this woman has MS is a public interest factor. You should pay attention because this poor woman has a crippling disease.. sympathy and empathy sell papers.
-GiH
Not a Lawyer (yet).
While we all in fact know that the MS is a defence play for pity and is honestly underhanded as it really has no bearing on the case, what the RIAA did is perjury. They lied about the letter flat out. Not only should the case be tossed, but the lawyer that lied should be dis-barred &&|| the non-lawyer that lied should be fined & jailed for 20 days.
(Here goes my karma, but...)
C'mon. What we're dealing with here is (deliberately?) bad English, where a left-out comma changes the meaning of a sentence.
What was written was:
"Defendant's Internet Service Provider, America Online, Inc., has confirmed that the Defendant was owner of the internet account through which hundreds of Plaintiffs' sound recordings were downloaded and distributed without Plaintiffs' consent."
What probably should have been written was:
"Defendant's Internet Service Provider, America Online, Inc., has confirmed that the Defendant was owner of the internet account, through which hundreds of Plaintiffs' sound recordings were downloaded and distributed without Plaintiffs' consent."
That comma changes the meaning radically -- in the latter sentence, AOL only confirms the account, and it's RIAA who claims what it was used for.
Yes, it's RIAA's fault, and yes, I think they're being bullies, but I also think that the defense lawyer in this case would recognise this and not misrepresent what's clearly a technicality.
Regards,
--
*Art
eg: The RIAA have tried to sue people who have never owned a computer or an Internet account for file swapping. Firstly, this would appear to be trivially-resolvable by any competent arbitrator, it most definitely does not need to be demanding vast amounts of time from an already-overloaded court system. Secondly, it is the understanding of us non-lawyers that the worst the RIAA can get for wasting the time and money of the legal system is a rap on the knuckles for a frivolous lawsuit - the defendant is most unlikely to be reimbursed for time and costs involved - which directly implies that it is cheaper to sue first and ask questions later.
Because the rewards are perceived to be high (whether they are in practice or not) and the risks are perceived to be low (ditto), the courts appear to have become the first resort, not the last resort. No matter how unjustified such a perception may be in reality, it is nonetheless the perception that has arisen and that is seriously damaging to the credibility of the system as a whole.
Personally, I would like to see the courts have greater power to call bull - whether by the plaintiff or the defendant - and greater flexibility in the handling of what can only be called abuse of court. That should include the ability to impose fines or jail time on plaintiffs (or defendants) even outside of the frivolous lawsuit mechanism or the final verdict. There may also be problems with the public defender system, as they have developed rather a bad reputation over the years. If the courts need to supervise such people, then they should be given the power to do so.
Does this impinge on a person's right to a trial? No. I'm not saying anything about denying a person a right to a trial, but rather that such a right does NOT imply a right to a trial first, OR a right to use the mere act of having a trial as a means of inflicting punishment on a person if that person is innocent, and certainly does not imply a right to use the courts for entertainment or get-rich-quick purposes.
(That second one is tough. Time is money. Even if all other expenses are either taken care of or reimbursed afterwards, if a person is in court and is not on the court's payroll, then they are not at work. For low-income individuals or individuals who don't have much of a buffer for whatever reason, this can make it impossible for that person to argue their case meaningfully or - in some cases - at all. I don't know how you can easily close that loophole, but this is essentially a denial-of-service attack, and the courts should never tolerate being used as a weapon. They are there to judge on matters of law, they are not there as a cheap alternative to hiring a hitman.)
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Well I know of one good way for the judges to reduce the amount of unnecessary litigation going on in the federal court system: shut the RIAA's illegal litigation campaign down.
Ray Beckerman +5 Insightful
If they made the false statement under oath it would be perjury and someone should be under indictment by now. If the statement was made by a lawyer without the letter being present why the F!@# didn't the judge ask to see the letter in any of the other cases!?!?! And the lawyer should be held in contempt of court.
So what we have here is 4 possibilities:
1) the RIAA committed perjury and will probably get away with no punishment
2) the RIAA lied to the court (not under oath) and will probably never be held in contempt
3) the judge is incompetent
4) the judge is complicit
This kind of thing really pisses me off, and I don't even steal music online!
-- QED