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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."
... 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.
Sigs are too short to say anything truly profound so read the above post instead.
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
Exactly. My wife's best friend clerks for a federal judge and as part of her job writes decisions. It shocked the hell out of her to see that her work was not just used as a distilled reference for the judge's own decision but were read word-for-word and unedited in court the same day she wrote them without any review. It is frightening that a 20-something from a tier-3 law school is literally interpreting law with no oversight. So far she has decided computer, pharmaceutical and telecommunications cases with no experience in any of these fields. And according to this clerk it is common and accepted.
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?
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
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.
It seems that today's judges are the looniest of all. This Judge is a plaintiff in a RIDICULOUS case, where he is suing a dry cleaner who lost his pants... To the tune of $67 Million. Simply amazing.
Appended to the end of comments you post. 120 chars.
Duh. Have any of you ever Met a Judge?
You do not become a Judge by being the smartest or wisest person of the land.
You become a Judge by having lots of money, knowing lots of people and making people know you.
Either elected or appointed, your skills, integrity, or knowledge means nothing. Who you know and who knows you is EVERYTHING.
I have installed Theaters for Judges, Many are incredibly dense and after talking to them Frighteningly inept.
They are 100% identical to a mayor, congresscritter, or president. There is NOTHING special about a judge other than who they know.
Do not look at laser with remaining good eye.
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?
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.