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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.
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.
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
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.
NewYorkCountryLawyer:
I'm not anywhere near knowing the law well (let alone U.S. law), but isn't there anything bad that can happen to RIAA for what they're doing? I'm speaking about something more than just losing a case. There were dozens of stories describing they're practices... I know that sueing someone every other Tuesday is your national tradition, but there have got to be some ways of scareing those bastards away.
I don't agree that suing someone every other Tuesday is our national tradition.
I do think that the rule of law is our crown jewel, and is the bedrock of our democracy, and that in our common law system the law evolves in part through judicial decisionmaking. Respect for law, to my mind, suggests that we should respect the courts, and not litter them with frivolous litigation as the RIAA has done.
I am hopeful that the judges will take action against these bullies.
Keep an eye on Capitol v. Foster, where the judge has the opportunity to hit them with a big attorneys fee award, and Elektra v. Barker, where the judge is considering whether the RIAA even has a sufficient claim to warrant filing a lawsuit.
Ray Beckerman +5 Insightful
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
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. . . .
Actually I love it. I'm an egalitarian kind of guy, who comes from a family where there was nothing we enjoyed more than a good argument. So I find it amusing when a Slashdotter tries to tell me I'm wrong when I've been in this field for more than 32 years, and the person telling me has never even opened a law book. And the funny thing is, I wouldn't mind it in the least if he or she were actually right, and could prove me wrong, or teach me something, or could actually back up his or her opinion with authority or information....
But I'll go back to what I said after my September Slashdot interview, and the rough-and-tumble "Q&A" that ensued, where I was viciously excoriated for (a) telling people that there was not yet a definitive answer to their question, (b) telling them that the law was contrary to what they thought it was, and (c) being 'short' with user ID's I suspected of use by RIAA trolls:
Ray Beckerman +5 Insightful