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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."
Hey, I got a link directly to what AOL's letter said, Thanks editors, its more convenient than ever!
Some people encrypt by using rot-13 twice. I prefer the more secure method of using rot-1 a total of twenty six times.
...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.
Probably with the judge ruling in favor of RIAA since they most likely have the government in their pocket anyways. =(
Fighting over religion is like seeing whose imaginary friend is best.
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
Is there a reason they don't hold lawyers accountable for stuff like this under penalties similar to perjury? If not, why the hell not?
The theory of relativity doesn't work right in Arkansas.
Ms. Schwartz needs a stern talking to.
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 don't know about you, but it really scares me to depend on the technical expertise of AOL (or any ISP, but especially AOL) to keep straight which customer had which IP at which time. You don't have any opportunity to review how carefully they record who was using which IP or how accurate their clock is set on their logging system.
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.
Actually, it's all about creating an environment of fear for the common consumer.
Like a dog that has been beat for no good reason, less tech savvy computer users will simply follow the entertainment conglomerates bizarre rules out of fear and never consider that the Doctrine of First Sale still applies to their entertainment media regardless if it's in a downloadable package or not.
I've been thinking I should start a simple parent's guide to the Doctrine of First Sale so smart parents aren't teaching their kids stupid RIAA tricks. Yes? No? Is there one already out there?
http://www.maxineudall.com/2010/02/should-economists-be-sued-for-malpractice.html
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
My initial interpretation to that was that all the other IPs were not Ms. Schwartz. Wouldn't this put even more doubt as to the credibility of the RIAA's supposed evidence?
I wonder how the RIAA is expecting to get paid from a MS patient no matter how autonomous and able-bodied she is. Family? Friends? Loans? Give me a break. And honestly, I think the RIAA is losing money from all of these lawsuits being as long as they are.
Also, AOL only gave a list of names associated with IP addresses, so how does that translate to "This user downloaded music with these IP addresses at these dates"? Some justice.
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.
They think she is actually capable of downloading music? -_-
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.
"172.200.205.238" on "2005-11-25" at "04:03:44 EST" is:
happy to see that someone else actually appreciates the Joni Mitchell collection they've complied
"172.143.208.80" on "2005-11-26" at "01:48:14 EST" is:
wondering if MSgurl2459 is really as edgey as her taste in 3-6 Mafia seems to be. Wonders if MS stands for Microsoft (ooh a cute nerd chick!)
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).
It's the other way around. The more terrible they seem the more ground they gain in the PR realm (actually, fear campaign) thereby making it less likely that they will ever protect their IP in anything resembling a reasonable manner. This isn't about justice, it's not about protecting any goddamn artists (who, frankly need protection from that hideous collection of oligopolistic blood-sucking corporations known as "the music studios" much more than they need to be saved from the horrors of copyright infringement via P2P.) To the contrary, it is all about scaring people into a pattern of behavior (i.e., fear-stricken regarding P2P) more conducive to the RIAA's ultimate goal of world domination, er, I mean, regaining total control of media distribution.
The higher the technology, the sharper that two-edged sword.
Here's some helpful hints for the RIAA.
1. If consumers like you, they will buy more of your product.
2. If you stop suing consumers, they will hate you less.
3. If you create something new, consumers will be more inclined to buy your products.
4. If you create something that's not easy to steal, people won't steal it so much.
Here's something new that I (a consumer) would LOVE to buy. The tools for this idea are already widely available and used by almost everyone.
Take a Wii with that new style nunchuck controller (or whatever it's called. The thing you wave around in the air). Add a wireless dance pad. Create a dancing game that uses foot movements and hand gestures. You know, dancing. Then put an online store for ordering additional dance tracks, game accessories, etc. Make is so you can link several of these dance mats together at a party. Make international online tournaments with prizes, titles, and a televised championship. Put them in arcades. Put them in fitness centers.
Is that a perfect idea? Hell no. Is it something I would pay $600.00 for this Christmas? Hell yes.
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.
I was cremated, you insensitive clod!
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).
Exact wording from November 1st letter to the judge:
... sound recordings were downloaded" ... sound recordings were ... distributed"
...k tra_schwartz_061028anscounterclaim)
"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 Plaintiff's consent. Defendant does not dispute this fact."
Lawyers love to use long sentences that can be interpreted in multiple ways. The above actually contains several "facts" lumped together.
1) "Defendant's Internet Service Provider, America Online Inc., has confirmed that Defendant was the owner of the internet access account "
2) "the internet access account through which hundreds of
3) "the internet access account through which hundreds of
Number 1) is substantiated by the AOL letter, assuming that one accepts that having an IP assigned for a set time period (i.e. a few hours) to an account holder is equivalent to owning the internet access account in question. I doubt that number 2 can be proved, unless the screenshot giving the IP address actually showed the files being downloaded. The defendent could just as easily have uploaded them to her computer from CDs. Number 3 is a pretty straight-forward claim; however, it is not substantiated by AOL's letter.
Of course, the way the sentence is structured, all three claims are lumped together so that the sentence can be construed to mean that either the AOL letter confirms just the account ownership or that it confirms ownership AND downloading AND distributing. Such a sentence structure lets them give the wrong impression to the judge without saying anything that can be proven to be false (at worst, it can shown to be ambiguous). This gives an easy win if the Judge misunderstands and still allows them to claim that they didn't lie if they are caught-only that the sentence was misunderstood.
To top it off, the second sentence quoted above is a claim by the RIAA which basically says the defendant hasn't already said something contradicting the claim in the previous sentence (notice they say claim, not claims). This is bogus because they could claim that the lady committed murder and hasn't disputed it (which would technically be true until the defense hears the claim and can say how absurd it is!) Of course the lady's attorney disputed the misunderstood claim pretty much as soon as they got a hold of the AOL letter (that is what the article is about).
I suppose if the judge gets pissed, he can chew out the plaintiffs for sloppy writing and maybe even censure them for making misrepresentations, but not perjury.
Kinda funny though, how the article doesn't mention that the lady has a teenage daughter with friends who used the computer
(see counterclaim 27 at http://www.ilrweb.com/viewILRPDF.asp?filename=ele
science is a religion
Agreed, but I take exception to your .sig... Shouldn't it be "iMac so I don't have to think"? (Not a bad thing, if you take the 'computers should be tools, not ends in themselves' school of thought, but I'll go for the troll factor instead ;)
This comment does not necessarily represent the views and opinions of the author.
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
Now THAT is a great band..I wouldn't illegally download their songs. http://www.theheartlessbastards.com/
Pandering to the lowest common denominator would be less frequent if more people were prime numbers.
http://www.law.cornell.edu/rules/frcp/Rule11.htm
(b) Representations to Court.
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,--
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
I'm a lawyer, but not yours. I wouldn't represent someone who thinks taking legal advice from Slashdot is a good idea.
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)
I believe that Eddie Izzard asked it best, "Cake or Death"?
It must have been something you assimilated. . . .
Of course, the way the sentence is structured, all three claims are lumped together so that the sentence can be construed to mean that either the AOL letter confirms just the account ownership or that it confirms ownership AND downloading AND distributing. Such a sentence structure lets them give the wrong impression to the judge without saying anything that can be proven to be false (at worst, it can shown to be ambiguous). This gives an easy win if the Judge misunderstands and still allows them to claim that they didn't lie if they are caught-only that the sentence was misunderstood.
Seriously, this is exactly why lawyers and judge should debate in PROLOG, or any Turing complete programming language. Except Perl, it would make matters worse.
Maybe we deserve this world ?
>"American Online"
That is correct - they only have one customer left now.
I want a list of atrocities done in your name - Recoil
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