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Is RIAA's Linares Affidavit Technically Valid?
NewYorkCountryLawyer writes "In support of its ex parte, 'John Doe,' discovery applications against college students, the RIAA has been using a declaration by its 'Anti-Piracy' Vice President Carlos Linares (PDF) to show the judge that it has a good copyright infringement case against the 'John Does.' A Boston University student has challenged the validity of Mr. Linares's declaration, and the RIAA is fighting back. Would appreciate the Slashdot community's take on the validity of Mr. Linares's 'science.'"
The term "individual" isn't valid, but legally it may be close enough. IANAL. An IP address where files are available is identified, not an individual. That IP address may represent a single traditional computer system, a series of computers behind a router, or even an open wireless access point. The fact that you can trace activity to an IP address does not mean you can trace activity to an actual real person. You can figure out who pays for access to the internet using that IP address, but that doesn't necessarily mean that much. However, legally, it may, if the duty to ensure that an IP address is not used for illegal activities rests with the person who pays the subscription fee instead of the person who uses the address. This may be reasonable...those who pay for access are probably the least cost avoiders (actually, the ISPs may be the least cost avoiders, but we don't want them shutting down every service they can detect).
The biggest mistake is that they're trying to imply that an IP address is tied to a specific person at a specific point in time.
It is not.
It may be tied to a specific computer. Or a specific router / firewall. Or even a specific UNSECURED wireless access point.
But it is NOT tied to a specific person.
Their second biggest mistake is claiming (without any evidence) that each file being "pirated" represents a lost sale. So the courts need to work REALLY REALLY FAST to stop the money being lost.
Their third biggest mistake is that the machine with the IP address, that is associated with the "piracy" is 100% under the conscious, knowing control of the person who is being charged. As opposed to your neighbor using your unprotected wireless access point to download files without your knowledge.
Anyone have any others?
Of course P2P users can know each other really well and can know exactly with whom they are exchanging content they are fully legally entitled to, also in joining a specific P2P network, they are forming a new association, based upon shared expectations of what they mutually expect from this new relationship, an extension to that is the sharing of a part of their personal and private space i.e. a part of their hard disk drive storage space in their personal computer and their files that they have stored their, and upon a mutual understanding of not exploiting that trust and abusing that relationship by using it in a false, deceitful and fraudulent manner.
The second major lie is of course that 'users' can be identified by their IP address, and hugely misleading fabrication, the only way one user, human being, can be identified by an IP address, is if that IP address was embedded in a device inserted in their body, even then it would be impossible to say that the IP address response was not being generated by another electronic device that had no association with that user at all. An IP address provides a temporary, non fixed, transitory, addressing protocol, so that electronic devices can effectively exchange data across a shared interconnected network. Many devices can exactly the same IP address, they can even connect at the same time, but that will cause network problems for those devices and problems for any other devices attempting to communicate with them. However it terms of routing network traffic, many millions of devices a currently connected to the Internet with exactly the same IP address beyond the default IP address of routers. The lie is again carried over to where Media Sentry, identifies the 'individual' what a crock, this lie is even extended to the ISP, that somehow the ISP can identify who is using the electronic device at the time.
It would also seem that the RIAA claims copyright on file names, if heaven forbid, you have file names that in part, or whole, including misspellings, match with file names that the RIAA or Media Sentry might possibly association with works they are claiming protection for, you are somehow infringing copyright.
That closing bit is most telling, we have no idea who is committing the copyright infringement, finally the truth, but we want to prosecute somebody, anybody and everybody based upon a, we say so basis, and a temporary IP address issued by an ISP that is of sufficient security and legal documentation and verification of identity as is necessary to manage a $25 a month Internet account (seriously how much technical effort and expense do you put in to manage and record and track that cheap an account especially hundreds of thousands of them).
Chaos - everything, everywhere, everywhen
Free advice from a non-lawyer. Not only that, but I only have time to scan the document quickly, however here are some points that I think might be relevant:
1. The word "piracy" is repeatedly used. I don't believe this is a standard legal term (outside of naval encounters). The word is not defined in the document. I think the intent is to equate the term "piracy" with "copyright infringement", but to spin it imply other things. One could probably attack this term successfully.
2. Point 8 is a logical fallacy. Whether or not record companies authorize P2P distribution of music is completely unrelated to the conclusion that P2P networks are used primarily for copyright infringement. One would first have to show that the vast majority of content falls under the record companies' copyrights.
3. "Distribution" has a specific legal definition in copyright law (or it does in my country, anyway). P2P copying may or may not fall under that definition. This is extremely important. They are trying to imply that P2P copying is a more serious offense than copying in other ways.
4. Points 9 an 10 bother me slightly, but I can't put my finger on why. They are implying that the P2P users are anonymous and thus can escape lawsuits from copyright holders. This is probably an important point in their case. I suspect they are trying to show that P2P users are intentionally hiding because they are doing something they know is wrong. This is why it is OK to remove that anonymity. It is important to stress that whatever the motives of the defendant, it is the plaintif's job to show that an infringement occurred *and* that the defendant was involved before an injunction is granted. The anonymity of the defendant is immaterial to that point.
5. Point 11 states that Media Sentry can identify files being offered. It can not. It can only identify the *names* of the files being offered. The name of a file does not constitute anything more than circumstantial evidence that the file contains what they think it contains.
6. As has been stated numerous times before Point 12 is just false. An IP address identifies a machine, not a user. Any number of users may access that machine. Other machines may route through that machine and masquerade as it. The owner of the machine may not even be aware that someone else is using it for this purpose.
7. Point 13 doesn't make any sense at all. They indicate no mechanism for Media Sentry to identify copyrighted works. Or even if one assumes that all the works available through the P2P network are copyrighted, there is no mechanism for determining who the owner of that copyright is. The document seems to imply that all users of the P2P network can do this and since Media Sentry uses the same mechanisms, it can do it too. But users can not generally do this. They would have to provide some explanation for the mechanism they are using.
8. Point 16 states that the IP address can identify where the infringement occurred. This is incorrect. It merely shows one step of the way. In order to identify where the infringement occurred, they would also have to show that the packets were not then transferred to a third party. This information is not actually stored anywhere on the computer, so it might be impossible in practice to say for sure where the infringement occurred.
9. Point 17: How is Verizon's concession in any way relevant to a judges decision? Does Verizon get to make precedent?
10. In point 18, they use the terms "distribute" and "make available". Again, these have very specific legal meanings. They have not described how the alleged actions of the defendants are equivalent to these legal terms. Even if they have documented copying, this is different than the above terms (at least in my country).
11. Again point 18, they have stated that the Defendant made illegal copies available. They have no way of determining this. They merely suspect that the Defendant's computer was used to *relay* copies (or pa
The last sentence of point 7 is false. In the days before Napster, a variety of other means were used. One was to submit a list of files to a centralized search engine, which would allow users to find materials on the computers of others. Modern P2P programs provide substantial improvements around usability and performance; however, the functionality that they provide was available and in common use pre-P2P boom.
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Item 8 states that the majority of the traffic on P2P is pirated material and also implies that the "vast majority" of content shared via P2P is pirated audio. Is there data to back this up? I suspect that video, photos, and programs (e.g., games) makes up a large amount of illegal P2P traffic. It feels like a rhetorical device used to paint the RIAA as a tragic victim.
Item 9 is incorrect. The ISP can not know who the infringers are. They can only know whose account is attached to that IP number. NAT routers are a possible workaround. Also, some services allow for multiple simultaneous IP addresses. For example, Telus requires that visible MAC addresses be registered.
By registering 2 MAC addresses, Telus will let users have two IPs at once. If Alan has a single NAT router connected, that leaves 1 free registration slot. If Bob, someone completely unknown to Alan, were to get the username and password for Alan's account, it would be possible for Bob to register his NAT router to Alan's account. If Alan only uses 1 device (i.e., 1 IP), there is a good chance that he'll never discover that Bob was piggybacking his account. If Alan needs the second IP, then he'll probably overwrite Bob's MAC without noticing there is a problem. Even if Alan notes that there is a problem, it's unlikely the MAC address could be traced to Bob because Bob could change the MAC address on his device and because of the difficulties of tracking the MAC address of a device from manufacturer to end user.
Item 9 also feels like a rhetorical device used to paint the RIAA as a tragic victim. The scope and value of piracy is hotly debated. http://arstechnica.com/news.ars/post/20070212-8813
Item 11 implies that searching is sufficient to tell if a file is a copyrighted song. This is not always the case; unless the file is downloaded, its contents can not be known. I think that "examines" needs to be rigorously defined. (This ties in with the parent's comments on item 15.)
Item 12 assumes that computers are single user. This is not the case with most modern OSes. It would be possible for someone to log into an unsecured computer and use it for sharing files over P2P. The IP of the computer used to share via P2P may be known but the user can not be. It also assumes that the computer has not been compromised via malware.
Item 14 states that files are downloaded. However, it does not provide any methodology for determining if the files contain copyrighted audio. Metadata can be falsified. How are logs created and handled? Are they screenshots? (This ties in with the parent's comments on item 15 again.)
Item 16 states that "...the infringer's ISP quickly and easily can identify the computer from which the infringement occured...". It may be able to provide an IP address but that's not a sure thing (there have been past incidents where the wrong person was identified). They definitely can't prove that a MAC address belongs to a computer that is owned and controlled by the identified account holder. The MAC address is configurable. It's not possible for an IP address alone to be capable of identifying a computer, even if the IP is static.
Adam decides to open his own business selling socks online and decides to house the server in his home. He upgrades his account to a server account with 1 static IP and sets up his business on that IP. After 3 months with no sales, Adam packs it in and downgrades his account after downloading the complete discography of NKOTB