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RIAA Backs Down Again in Chicago
NewYorkCountryLawyer writes "The RIAA seems to have a problem making things stick in the Windy City. It has once again backed down in BMG v. Thao, after suing a misidentified defendant. Same thing occurred last October in Elektra v. Wilke. In the Thao case, the RIAA based its case on information that the cable modem used to partake in file sharing was registered to Mr. Thao. However, it turned out that Mr. Thao was not even a subscriber (pdf) of the ISP (pdf) at the time of the alleged file-sharing, and therefore did not have possession of the suspect cable modem at that time."
Realizing you are suing the wrong person is not 'backing down'.
I love seeing these cases where RIAA has been shown to be a bit skimpy on their evidence. Hopefully it will make more people fight back.
... they get stuck with Thao's legal fees. It's really far past the time for the RIAA to start paying for all their mistakes.
More like 'oops, wrong person'. Not their fault they were given the wrong information.
---- Booth was a patriot ----
Sigs are too short to say anything truly profound so read the above post instead.
Is there anyway to at the very least get your lawyer fees covered? Or do you have to file your own lawsuit to get those?
This is getting fucking ridiculous!
This will severly damage the RIAA's crediblity in the courtrooms. Stuff like this weakens the RIAA's stranglehold and now the law is starting to see things how they are.
RIAA... the new SCO?
Make SELinux enforcing again!
I remember back when the RIAA lawsuits first began. While they didn't stop a lot of people from file sharing, it did disquiet a lot of people. The idea of the RIAA sniffing the P2P networks and logging everything you did was frightening, and people imagined itemized lists of dates and times their downloads were completed.
Now the only disquieting thing is that the RIAA seems inclined to sue anyone and anybody, regardless of whether they have anything to do with it or not. The more cases they pursue, the more obvious it is that their ability to locate and pursue anyone is pathetic. Feelings of Big Brother subside, and now we can rest easy knowing that if the RIAA does sue you, it's because they think you're someone you're not.
Thunderclone: ONE MAN ENTERS! TWO MEN LEAVE! ONE MAN ENTERS! TWO MEN LEAVE!
The RIAA seems to have a problem making things stick in the Windy City.
Well, there's only so mush shit you can throw at a wall before it stops sticking.
You are still innocent until proven guilty. What's changed is what they do to innocent people. - notnAP, #26891325
They don't got it in their pocket or their shoes
Chicago you know has Always had The Blues.
I guess this time was RIAA's turn to lose.
--
Any good blues chord progression should do it, repeat to fit in 12 bars. Prounounce the acronym as a word. Play it until you run out of alcohol or your brains fall out your ears, or both.
Do not mock my vision of impractical footwear
The only way the RIAA is going to stop harassing people through the courts is when it costs them so much that they can't sustain it anymore. That won't happen simply by suing for court costs and attorney's fees -- the RIAA (through its members) is much too wealthy for that.
Use 'slashdot stuff' in the subject line in any email you send me if you want to get past the spam filter.
While I am all for RIAA getting it in the kisser, something is fishy.
:)
The letter from the guy back to Earthlink states that offending IP was identified on Feb. 15 2004 (sorry, writing dates from memory). However, the letter from Covad shows that he was a customer from October 2002 till July 2004. So, in February 2004 he was very much a customer of Covad (which, I assume, is an actual provider for Earthlink DSL service). So, I am not sure how the defense of "wrong time" might have worked here. I guess he has a REALLY good lawyer
I highly think it's time laws are made to correct the use of FUD through lawsuits. Maybe a quota as to the number of lawsuits that can be filed per year by an organization? With provisions that this quota be dismissed in rare cases of course.
I'm sick of following my dreams. I'm just going to ask where they're goin' and hook up with 'em later.
BMG (Sony BMG) is Bertelsmann. A German company that committed Nazi atrocities in the 1930s and 40's. Info HERE
Just in case anyone actually needed another reason to hate the RIAA, or enjoy their failure.
Only buy music directly from the artist, or second hand.
The law suit was dismissed without prejudice which means they can sue him again... and he wasn't offered costs! His lawyer should have asked for costs and should also ask the case be struck with prejudice.
1. Why would defendant accept dismissal without prejudice? Does the evidence not clearly show that the facts alleged in the complaint are without merit? Why should plaintiff have the right to refile?
2. Again, why would defendant agree to accept a sharing of court costs? Are the costs so small that litigating further would not be worth it?
This mis-identified defendant issue is a bit worrying. I mean, let's say you're tracking information on a p2p network. Now, you write your own client, and sit there tracking what IP address sends you data from downloading a specific file(that is supposedly copyrighted). At that point, you have the data block(s), and can compare them against the final downloaded file, which you can verify with it's file hash. And you have the IP, and the date/time you got it from them.(Let's assume this is a p2p protocol where the client you get the data from is definitely the one that actually has the data purposely shared, and not one like say Freenet, where it's passed often by other clients)
:P(which would garner them insanely bad press, and make judges in courtrooms very, very angry with them)
Then you go to the ISP, and query who had that IP address at that time. For bonus points, you ask if they have any traffic logs that will verify the IP address was participating on the appropriate ports for that p2p network.
All that data seems enough to validly go to court. You still have to link a person successfully to the ip address, but the base level identification is enough to have a valid name to at least start with.
So the overwhelming question for me, is how they can get it so wrong? If this is the wrong person, and they are not even a subscriber to a comcast cable modem, how is their name in the RIAA's possession? I'm throwing out the wacky idea that they are suing via random selection in the phone book
Obviously you have to treat each case on it's own merits, and making assumptions about guilt/innocence is a dangerous thing indeed. Also, we are not counting the times when an adult is the target in court, but it turns out it's the child of the adult who is the infringing person. But still, these *completely* erroneous identifications are very worrying. Just who are the RIAA getting their information from?
I hate Illinois Nazis...err...I mean Illinois RIAA
Seems like a serious enough problem that you'd want to expose the judge in question and get himher removed from power.
My turnips listen for the soft cry of your love
Wikipedia has a comment about this:
Let's name the actual companies involved: Sony, Universal, Capitol, KGB Records, Synapse Films... We might even make up a new acronym for the coalition.
404555974007725459910684486621289147856453481154 in hex is "You sank my Battleship?"
[GPG key in journal]
As if those independent pirate-friendly artists could ever concoct music as brilliant as K-Fed's "Playing with Fire"
My turnips listen for the soft cry of your love
I begin to wonder how long it will be before someone drives a truck full of explosives up to the RIAA HQ and kills the lot of them.
People share files.
RIAA should be required to show evidence that a particular person rather than just a particular peace of hardware was involved in file sharing to start a lawsuit. If you have kids visiting your house, it's possible and likely that one of them will do a quick download. And, given that there is no requirement to even secure GUNS kept at home, I don't see how we can require people to keep their gaming box under lock and key. Difficult, I know. But we want one to build a good case to abridge someone's freedom by dragging them to court.
On the ISP side, it is not their job to have forensic quality logs that can stand up as evidence in court. ISPs keep logs for their own internal purposes. So, to some extent, the data which ISPs are being required to provide via subpoena is being misused. I do not see any reason that the ISPs should have to keep data of sufficient quality to satisfy third party needs, particularly without being compensated for it. Having had to implement tamper and fraud and time change and dropped record and system failure and etc. resistant logging for a client, I can tell you it adds an order of magnitude of expense. This expense is of no benefit to the ISP.
When I was in the position of handling abuse reports in the past, I would not respond with user details unless absolutely forced to. Instead, the policy was that if someone reported a possible abuse of the TOS and provided their own logs sufficient to investigate, I would then perform an internal investigation, which might include beginning additional logging on the account if it seemed warranted. If a TOS violation was supportable, I would then notify the user and let them respond. In this case, the user would have said "WTF: I wasn't your customer at the time!" and I would have said: "OS! Computer error, my bad!" (if I had screwed up that badly in the first place). If they could not deny the TOS violation, I would terminate the account. If the TOS violation also involved possible illegal acts, I would then turn over my logs and notes to the appropriate authorities directly, with any necessary caveats; the authorities could do whatever they needed to do with the information. I would *not* turn over confidential information to the original reporter, whose identity and authority I could probably not validate anyway. They can get the information from the authorities if they are authorized to do so. Bottom line is, though, provide the data as is, say how it is gathered, and take no responsibility beyond that.
Basically someone reporting a violation would have two choices: go through the hoops and get action quickly, or get a supoena/court order and get action slowly. People went through the hoops. Luckily I did not have to deal with this long or often.
I think someone that files suit should be automatically held liable for emotional harassment.
_Vishal www.squad9.com
maybe thats why it didn't stick
Too bad the legal system is as mucked up as it is, and the procedures that are used in it are difficult for the layman to understand.
What would be nice, is a RIAA-lawsuit toolkit that ANYBODY could use to be a Pro-se litigant, and using templates that would hold up in court.
Unfortunately, the system is stacked against pro-se litigants, but it would be nice to cause the RIAA to bleed money, but not defendants.
I'm sure the RIAA was much more likely to end it quickly if they had a NDA on how much their victim was compensated and was allowed to let it look like a draw rather than a humiliating defeat.
Apocalypse Cancelled, Sorry, No Ticket Refunds
The PDF of the motion cited Fed R Civ P 41(a)(1)(i) which I have quoted above. Note that although that's a North Dakota court link, the rules in question are federal. Assuming their lawyers are right, the defendants may not have had any choice in the matter because the case hadn't gotten very far before they dismissed it. They did something similar if not identical in the RIAA v. Merchant case, only to refile it against some John Does seeking discovery from Mr. Merchant, much to his lawyer's annoyance. Because of that, I'm not convinced this is the last of it, but I remain hopeful.
Finally, please don't take this as any kind of legal advice—I am NOT a lawyer, just some guy who knows how to Google legal citations, and you want to get a good lawyer and let them fight this crap for you if they come after you. It probably wouldn't hurt to ask for a referral from your local bar association, or maybe even from Ray Beckerman, for someone who knows how to fight the dirty RIAA tricks. A lawyer who knows their game plan from the start would probably be more able to counter the sneaky maneuvers they've been known to pull. Otherwise, you might end up like Mr. Merchant, a "non-party" from whom they seek discovery in ex parte fashion, in an attempt to root through your computer without giving you any standing before the court to complain about it.
On an unrelated note, I'd love to see Fed R Civ P 41(a)(1)(ii) come into play due to some accident in the RIAA's gamesmanship. Hopefully, some good lawyer can trip them up with something like that.
Yeah, lets see a newspaper pull that off. "But your honor one of our sources reported that Celebrity T was doing R bad thing at the time therefore we didn't slander them."
It's good to see you've discovered the internet since waking from your coma, although you may be disappointed to find out that along with television it's eating the newspaper industry alive. There have been some other changes for the worse during the last six years, too. You're not going to be happy with the state of the news media today. Not only can they pass along lies without facing the repercussions, but they refuse to reveal the identity of lying "anonymous sources" thereby protecting those liars from facing any negative consequences at all.
It seems time and time again that the RIAA should sue all Americans. This way they will be guaranteed to actually sue someone who owns a computer. Hey, if they do not know how to use it they must be guilty. The more the RIAA embarrasses themselves, the more times that can claim that they are winning.
That gets them to a house. A house with an account holder in it, probably. It in no way identifies the person performing the copyright infringment.
Come on, if the account holder isn't responsible then nobody is at all, ever. The Internet remains anonymous and without consequences for everyone.
Ever try to get someone to stop brute-force cracking attempts on a system? The ISP doesn't care, or at best will just warn them so they push their attempts through a proxy. Law enforcement doesn't care until there are significant damages. So any attempts to get a script kiddy to stop results in no action until they are in some serious and deep stinky stuff. Assuming they are dumb (and almost always are) and brag about it. Because once again, the Internet is anonymous and without consequences - unless you are stupid.
The answer to all of this seems to be "Wasn't me. Must have been someone else using the Internet connection. Come on, prove otherwise!"
When I first read the summary I thought they had tracked Mr. Thao down because he had registered his cable modem with the manufacturer (the warranty card) and they had gotten the ownership information from the manufacturer (it doesn't seem that far-fetched to me). But I guess he had an ISP-supplied device (a DSL router he wasn't buying outright) and since he was the person in possession of the router at the time the RIAA went looking for the owner, he was the one they sued, even though another customer had the router at the time of the infringement. I wonder if the RIAA can find out who that was. Do records of equipment leasing fall under the list of stuff ISP's are supposed to be keeping for a longer period of time now?
I went into more detail here, but if I'm right, this isn't the first time they've done this.
... inventive ... legal tactics.
Also, his lawyers had no choice. If they're correct in their application of the Federal Rules of Civil Procedure, they can simply dismiss the case any time before the defendant's lawyers file an answer or motion for summary judgment. Basically, they've done so little in that case that the Court has to let them slink away.
The only good news is part (ii) of the law that lets them off the hook. If I'm reading it right, and IANAL, they can't pull that trick twice or it ends up being an "adjudication on the merits." Assuming I can read the legalese, the second time you pull out of the same litigation like that, you automatically lose.
Of course, the problem is that they may very well recycle their trick from RIAA v. Merchant and refile the case against various John Does, only to seek discovery from Mr. Thao. Of course, if this guy doesn't have a computer, I have no clue what they would be able to get out of him. In the Merchant case, the guy at least had a computer.
DISCLAIMER: I am not a lawyer. As RIAA v. Merchant proved, you NEED a good lawyer on your side to fight the RIAA's
See this comment at TFA which conjectures that RIAA offered to pay something to allow them to dismiss the case without prejudice and keep the deal secret. That lets the RIAA avoid the bad publicity and precedent that would result from losing a motion from the defendant to recover legal fees, and gives the defendant their money without further court battle, legal expense, and some uncertainty of winning.
What do you tell the RIAA who has two black eyes? Nothing it hasn't heard twice before. :)
In Belgium the way to go would be to sue an unknown person. It is then up to the court to demand evidence from the provider. No evidence or identity may be given to the suer, their lawer or anybody else. Only to the court by court order.
What has happend is that the Belgian *AA wanted to file many, many, many lawsuits. The courts said something like: go f*ck a duck. We are not going to harrass people who did just share. Please come back when you have people who are making money over it. Those are the people we will put money and efford in, but we are not going to sue the whole country.
Sounds reasonable to me and yes, they do that with other things as well.
Don't fight for your country, if your country does not fight for you.
Is it an accident that the RIAA seems only to go after ordinary people in these cases? Given the thousands of cases you would expect the occasional politician, lawyer, rich businessman to be accused.
Yet people who can barely afford the settlement costs seem to be the most common.
Not understanding home theater doesn't make you dense. Their business isn't electronics, it's the law. A judge doesn't need to be an expert in a field that they are ruling on. They need to be able to find, understand and interpret the law as written by the legislature. In fact, you don't want a judge to be a subject-matter expert. When they start understanding every facet of a problem and make a ruling that is wise but contrary to the law, they are "legislating from the bench."
People who think they know everything really piss off those of us that actually do.
I share files once in a while - friends' bands music (authorized), freeware (duh) and open source (GPL).
If they sue me, they're getting a countersuit for slander. malicious prosecution, defamation of character, and anything else my shyster can dream up. You can bet that he'll ask for enough punative damages to hurt them, as he gets a cut of the winnings.
I'm wondering why nobody else has sued for slander? The way they demonize P2P, calling someone a "pirate" is akin to calling them a drug dealer.
Sorry for the tone, but I see "BMG" is the one filing suit. SONY BMG. The same evil bastards that fucked up my computer when my daughter played a CD she paid good money for at the record store she worked for.
You can bet I hope the guy they're suing reams their asses with a toilet plunger.
-mcgrew
In a civil suit it's 'a preponderance of evidence' (51%) not 'beyond a reasonable doubt'. Now, the issue is still, if there is a likelyhood that the account is wrong, and there are multiple people in the house, how do you ever get to 51% that a specific individual is responsible for anything?
It also appears that Mr. Thao paid for all of his legal expenses incurred by RIAA's incompetence.
No offense, but that's a terrible analogy. And I should know; you would think terrible analogies are my bread and butter at the speed I churn them out. I like the pit bull, though, so lets go with that. Alright, your neighbor... lives in a cul-de-sac with you, and subscribes to a newspaper. And every morning there is a finite chance that the newspaper is missing. He knows two other people in the cul-de-sac don't subscribe to newspapers, so he decides, heck, he'll send his pit bull after both of them. One of them happens to be you. Turns out, though, that you didn't take his newspaper. He would have known this if he'd, say, gone over to your house and rang the door bell and saw the note on the door for the postman, "Please hold all mail... out of town from a week ago until a week from now." You couldn't have stolen his paper. But, instead, when you get home there is a pit bull prowling around that goes after you - and when your neighbor sees you yelping and running around with the dog slavering at your heels, he realizes that your oversized SUV is stuffed full of camping gear, and that you weren't home. So he tells his dog to heel, which it does, but glowers menacingly at you, because if you HAD been home, you might have stolen the newspaper. I mean, you live right next door after all. The thing is that in a neighborhood we wouldn't stand for that sort of antisocial behavior. We shouldn't stand for it from the RIAA either. If they are truly being hurt by this they have legal recourse - but only against those people damaging them. It is irresponsible for them to send their pit bulls against anyone and everyone that might remotely be in a position to wrong them - and if they're going to do that erroneously, it is not acceptable that they simply say, "Oops, my bad." Actually, if they went that far, it would be a great start.
[Ego]out