RIAA Defendant Cross-Sues Kazaa And AOL

NewYorkCountryLawyer writes "In what appears to be a first, RIAA defendant Michelle Santangelo, the 20-year old daughter of Patti Santangelo, has made a motion for leave to serve a third party complaint against Kazaa and AOL, as well as against someone who installed Kazaa software, in Elektra v. Santangelo II. Her proposed third-party complaint (pdf) alleges that any injuries plaintiffs might have sustained were the result of the third party defendants' "negligence and breaches... in the defective design of Sharman Network's program, "Kazaa" which was a dangerous instrumentality in its each and every use as it existed in 2002-2004; the trespassing and reckless installation by Matthew Seckler [the person who allegedly installed the software without authorization] of such program; the failure to warn by AOL and Sharman; the failure to block the downloading of such files by AOL; the improper blocking of alleged (RIAA) warning messages by AOL and Sharman; and, the secretive file sharing system of and by Kazaa.""

Comments

Oh I get it

[Anonymous Coward]

In addition to stealing these poor musician's music, they are going to directly take their money. Very nice.

Re:Oh I get it

[anagama]

Perhaps you are in school. That 10 page paper you wrote after spending 10 hours in the library, 5 hours in writing, and 3 in revising, is worth about 0.7 cents per page in paper costs ($3.50/500 page ream) and 1.14 cents in toner per page ($200 cart @ 17.5k pages) for a grand total of 1.84 cents per page. Your paper is worth just over 18 cents. That means your time is worth 1/100th of a cent per hour. In a few years, you might graduate and your work might be worth 2 or even 3 times as much.

Re:Oh I get it

[Yez70]

Interestingly enough, thats actually more (18 cents) than an artist gets per song.

The RIAA, record companies and their distributors get the rest.

Re:Oh I get it

[kakofb]

Score:-1, Insightful

Re:Oh I get it

[nightcats]

Henry VI, Part 2. Act IV, Sc. ii. "First thing we do..."

Re:Oh I get it

[dmpyron]

In the late Sixties, it was "Comes the Revolution ..."

Just different pigs. As I've matured, cops have, for the most part, garnered more respect from me, while the RIAA and MPAA have lost more.

Re:Oh I get it

[Mister Whirly]

The artists have nothing to do with setting the price of the CD, distributing them, collecting revenues, etc. These actions are all controlled by the labels. Don't disparage the people who make the music when you should be disparaging the people who sell the music. Your average artist will generally make well under $1 for every $15 CD sold. On any given label there is usually 1 money making artist for every 20 ones that don't make any money. So only the very top artists make any real money by selling CDs through their label. The real money is made by selling concert tickets and merchandise.

Re:Oh I get it

[Anonymous Coward]

And these artists are somehow blameless despite doing their part to perpatuate this crooked system? I don't see a whole lot of artists decrying the labels' tactics. I don't see them explaining to those newcomers who are trying to decide whether to sign up or stay independent that they will be signing away their souls.

The only way to take down this dinosaur is to attack it from both sides - it's time more artists stood up and did their part if they're really unhappy with their lot. Otherwise, if they're happy to keep up the status quo, they don't even factor in the argument.

Re:Oh I get it

[Mister Whirly]

The artists have two choices - take the crappy deal the label is offering, or do it all yourself. Not many have the capital to take the second route. It would be difficult, and possibly a breach of contract, for artists to "decry" their own labels. Most bands know that signing with a label is "shaking hands with the devil" so to speak, but as of now there are not a lot of alternatives. You can blame a number of different people for the flawed business model of the music industry, but it is not the fault of the artists.

It wasn't me, it was the software

[QuantumG]

Take responsibility. Stand up and declare your rights.

Don't weasel out by blaming the other guy.

Re:It wasn't me, it was the software

[Anonymous Coward]

The one defendant was 10 years old at the time. Yeah, he knew what he was doing.

Re:It wasn't me, it was the software

[DamnStupidElf]

Take responsibility. Stand up and declare your rights.

Don't weasel out by blaming the other guy.

This is pretty much the perfect argument. She owns the computer, but she didn't install or use the software. Who is guilty? Can she prove that this other guy installed it, and will he even admit to it? When it something is essentially shared property it can be very difficult to tie blame to an individual. Probably to the point that any RIAA suit becomes almost impossible to litigate. The "owner" of a computer has almost no meaning when everyone who sits at the keyboard has local admin privileges and a wide open internet connection. Unless you never have guests in your house, the idea that you are solely responsible for or have control over what your computer does is just silly.

Re:It wasn't me, it was the software

[ookabooka]

What rights? The right to violate copyright law? Before modding me troll, keep in mind that what most of these people do is copyright violation even though most people wouldn't think it is that big of a problem. What needs to happen is jury nullification or legislation to change to catch up to the new information age.

Re:It wasn't me, it was the software

[QuantumG]

This reminds me of people who leave their bong in the lounge room or other "communal area" in share accommodation. If the cops burst in they can't prove who was smoking the pot, so they can't arrest anyone, right?

Well, no. The cops just charge everyone with possession and when they try to pull that communal area crap in court they get laughed at by the judge.

Re:It wasn't me, it was the software

[QuantumG]

Yes, the right to copy and communicate whatever we please, even if it violates someone's copyright.

Re:It wasn't me, it was the software

[Brian Gordon]

Yes.

Re:It wasn't me, it was the software

[countach]

So you get put in jail even though you never saw, heard about or touched any pot? What makes me think you're talking nonsense?

Re:It wasn't me, it was the software

[QuantumG]

It varies from state to state. In most, though, you're looking at a fine, not jail time, and common areas are considered everyone's responsibility, not no-one's responsibility. Obviously if they find drugs in your roommate's room, not in yours, then you're clear.

Re:It wasn't me, it was the software

[Architect_sasyr]

If it is in a communal area you would nearly have HAD to have been on some form of drug not to notice it.

My interpretation of the law reads similar to the 'accessory to the crime' ruling where you get charged even though you didn't actually murder the person.

Re:It wasn't me, it was the software

[Bombula]

The interwebs made me do it! They made me do it!

Re:It wasn't me, it was the software

[alisson]

How *is* AOL not an accessory in this case? If I buy some crack, but it's not me; it's for a friend, i'm still guilty.

Also is she really taking it to court? How many legal battles has the RIAA won in court again?

Re:It wasn't me, it was the software

[Anonymous Coward]

That is the worst analogy I've ever heard* on slashdot.

You just wanted to get that story about the bong in the lounge room off your chest didn't you? If your housemate's bong habits are annoying you, then move. Stop whining on slashdot.

*yes, yes, I'm aware of how many god-awful analogies we see on slashdot - but this one is beyond belief.

Re:It wasn't me, it was the software

[Arthur Grumbine]

Hey now! I've seen the movie preview ads! I've watched the "Christian Rock Hard" episode of South Park! These kids should know everything!! No excuses! You show the little bastards what they're doing to Master P, Britney, and Lars Ulrich!!

Re:It wasn't me, it was the software

[Redneck Hacker]

She may not be guilty, but neither is AOL. The idea that an ISP is responsible for what its clients do is even sillier than the idea that a computer's owner is responsible for what other users do.

Re:It wasn't me, it was the software

[aztektum]

I dunno, if this gains any traction (I'm not a lawyer so I have no idea how likely this would be), but I could see it leading to laws where the government says ISPs need to monitor all our traffic when we logon, in order to proactively alert us to shifty dealings on our computers. Of course the NSA will also get copies of that data to support the "War on Terror".

Or they could pass laws regulating what type of traffic is on the Internet in general. P2P is gone for the aforementioned reason. The need to "protect" witless users from intentional or unintentional copyright infringement.

But I'm tired so perhaps I'm just not able to make much sense right now.

Re:It wasn't me, it was the software

[mrbcs]

Or until somebody straps on a set of nuts and takes responsibility and claims the dope.
No sense in having 3 guys get charged for the 1/4 lb of hash.

/got arrested, charges dropped
//buddy claimed it was personal for the three of us
/// got a $500 fine.. and we lost the hash of course.
//// pretending I'm on fark

Re:It wasn't me, it was the software

[rockout]

This is an interesting point of view, and I'm wondering how it would apply in a case of file-sharing that would more closely resemble the situation you describe.

Let's say I have an open wireless network from my home (which I do) and my neighbors are free to access it as much as they want. If one of them goes hog-wild on Oink and downloads and then shares 50 different torrents and uploads a few GB of music, I would get the letter from the RIAA demanding $XXXXX and then allowing me to settle for $XXXX. If I choose to fight 'em in court, and I demonstrate in court that I have an open network, and my neighbors are accessing the internet from it, is the burden of proof then on the RIAA to show that I was actually the one with the offending files on my computer, and that my computer was doing the distributing to the people around the world?

Re:It wasn't me, it was the software

[QuantumG]

Recent cases have suggested that yes, they do. Thing is, they can get the court to demand you turn over your hard drive and get forensic experts to look for remnants of the files. If they're successful, you'll be the one paying the forensic expert's bill.

Re:It wasn't me, it was the software

[justinlee37]

Thing is, they can get the court to demand you turn over your hard drive and get forensic experts to look for remnants of the files

*Hands the feds my recently-formatted boot drive (not the big one with the actual goods)* "No sir, you won't find anything in there ..."

Later, in court: "Isn't it true that your install of windows was only one week old?"

"Ha! Well you know, that is true sir. Have you ever heard of a trojan horse virus?"

*Insert 15 minutes of knowledgeable rambling about computers here, probably during re-direct since a confident response will likely cause the cross-examiner to drop the subject*

*Insert the defense lecturing the court about reasonable doubt in the closing statements*

*profit*

Re:It wasn't me, it was the software

[Sj0]

I thought it was a hooka.

Re:It wasn't me, it was the software

[sumdumass]

I had a long fight once where I was at a house visiting a friend, a knock came at the door and the guy came in to split some coke up that they bought together. Literally 3 minutes after he walked through the door, they were passing it back and forth looking at it and three knocks came to the door followed by it bursting open with about 6 officers running in telling everyone to get down. IF you weren't on th floor by the time they reached you, they put you on the floor and I don't mean helping you either.

In the commotion, the 8ball got tossed onto the floor and everyone got arrested for it. Including me and another friend I was riding with.

It took 10 months of fighting in court and almost 5 grand to get out of it. Evidently, the guy who came in, bought it from a undercover cop and they followed him home instead of busting him there because the two (who were splitting it) were actually talking on the cell phone trying to haggle the price when the one got it from the cops. I had both of them saying I wasn't involved and it didn't matter at all. This was about 12 or 13 years ago during an election year and they were tough on crime.

Sometimes you will be in just as much trouble just being there until you can prove your innocence. The cops kept saying they were going to take my cars and sell them and all that shit. Fortunately, My job easily payed enough to cover my "lifestyle" and they couldn't find anything indicating I was selling drugs to support it. And yes, they had my banking records and frozen my accounts for 2 months when my lawyer was finally able to got them back. They charged me with conspiracy, trafficking, possession with intent (which was part of the conspiracy) resisting arrest (because I wasn't on the floor fast enough), then they attempted to say I could plead out to on charge of possession and get 5 year probation. Of course I refused and fought it but the guy who drove me there took the deal and got hit for being in the wrong place at the wrong time. I was still out almost $5000 though and had a bunch of checks bounce when they froze my accounts.

My advice, if you see it happening, throw it out or move out yourself. Maybe breaking it a couple of time would force them to keep it locked away. It just isn't worth it if your not doing it "too". Pot alone is a little more relaxed then an 8 ball of cocaine and a few quarter bags. But I could easily see a cop being an ass and trying to make an example or something. My lawyer said if it wasn't an election year when it went down, I would have probably been let go the day it happened.

Re:It wasn't me, it was the software

[sumdumass]

The interesting thing in your scenario is that you knew enough about computers to be completely knowledgeable about open wireless connections and trojans but failed to secure access to your network and let someone else cheat the system by using your Internet from another residence.

I would skip the ramblings about being infected and knowing innocent until proven guilty and find a friend willing to do it for you after you complained about all the trouble you were having with it. It would sound less orchestrated and take the blame away from you for the formating which could be hiding it. And if the forensics don't find a trojan, your probably getting called on it. Especially after you got some RIAA letters.

Re:It wasn't me, it was the software

[bzipitidoo]

If there wasn't any copyright law to violate, then we could copy and communicate whatever we please. No one would get hurt. All the supposed damages from copyright violations are hypothetical. However much hypothetical damage is caused by disobeying copyright, seems to me there's greater hypothetical damage caused by obeying copyright. People dying because life saving medical techniques, in addition to all the other delays, are being held up until publication and registering of copyrights and the making of some determination about the patentability. Doctors discouraged from discussing ideas among themselves for fear of letting slip something that could become "valuable" intellectual property. Publicly funded research being locked up under copyright in very expensive, privately held journals ($10 or more for a 10 page article?!). And not being indexed thanks to the absurdities of trying to figure out appropriate fees for and legalities of such usages (witness the troubles Google Book Search has had). Or crucial details kept quiet for fear of someone popping up who smells a chance to score off a lawsuit or the threat of a lawsuit. Or being bought, "NDAd", and buried by some organization that wants to eliminate some competition. Even if doctors have the money (and they surely do) to buy the articles, they can't learn of the existence of relevant research because they can't search it, or discuss their work with their fellows.

Maybe copyright is hypothetically keeping artists from starving. Copyright is also hypothetically killing people. Stop talking as if copyright is sacred. Its purpose is as the Constitution says, to promote the arts and sciences. And these days, copyright serves its stated purpose poorly. Some people call a copyright infringer a "thief". If that's ok, maybe this "Godwinning" is not too big a stretch: "Copyright Nazis are murderers!"

Re:It wasn't me, it was the software

[sumdumass]

AOL had the security addition and all that. Most ISPs don't make any warrants outside getting service. I don't think it would be that big of an issue when tried with other ISPs. AOL took on a responsibility by claiming protection and all as well as taking steps to restrict certain traffic already (Virus). I don't see it gaining any traction.

Re:It wasn't me, it was the software

[QuantumG]

You are aware that we're talking about a civil case, and you don't get to say anything in court and if the judge thinks you've tried to tamper with evidence he can just lock you up for contempt and you don't even get a trial, right?

Re:It wasn't me, it was the software

[justinlee37]

And if the forensics don't find a trojan, your probably getting called on it.

The argument isn't that the trojan virus downloaded that stuff, at least not explicitly -- the argument is that to my knowledge it was never downloaded from my IP at all (and no one can prove that I'm lying).

Besides, even the knowledgeable get the occasional virus -- antivirus providers don't get everything, all the time, because they're fighting a perpetual code war with the blackhats, and they're at a natural disadvantage because they have to react to the viruses after they're produced. The only difference in my case (the reason the trojan isn't still on the computer) is that I knew what I was doing after my firewall failed, and what the cure was -- a full system reformat and a fresh install of windows.

The reformat is why the forensics team won't find any traces of a virus -- and yes, I'm aware that they scan the drive physically for ghost memory, and I will run a wiper to remove that -- while the forensics expert will lecture the court about how the nonsensical ghost memory on the HD is a telltale sign of someone who ran an advanced program and has something to hide, I'll just respond that I know what I'm doing, I'm very thorough, and that I don't take chances with worms and viruses.

Re:It wasn't me, it was the software

[justinlee37]

My law background is exclusively in criminal-styled Mock Trial competition, so, that could definitely skew my ideas about what would be feasible.

However, it'd seem to me that you'd have quite a hard time proving intent, especially if cleaning up the system was the first thing I did after receiving their letter, and testified that it was an ongoing problem before the RIAA contacted me.

Of course, maybe a better idea would just be to keep an old junker computer around the house, running, and do all of your legitimate word-processing on that. After all, if the RIAA get any IP it'll be your router IP ... which shouldn't be terminal-specific. You'd get to turn in a squeaky-clean system, with nothing but a bunch of word documents showing what a productive student/lawyer/doctor/lab assistant/teacher you are.

Re:It wasn't me, it was the software

[QuantumG]

Ya don't get it do ya? They come to your house and they take all your computers. If they can't find the one they want, they come back. If you kick up a stink they bring in private security, or they enlist the help of local law enforcement. As for intent, if you've just done a normal deleting of files, then the forensic guys will still be able to find remnants of them. If you've gone to some trouble to do "secure deletion" then the forensic guys will be able to see that you have done that too. Unless, of course, you're telling me that you're an expert in computer forensics yourself and know how to beat them at their own game.

Re:It wasn't me, it was the software

[justinlee37]

They come to your house and they take all your computers.

Really? The media description of all the cases leads me to believe that what they'll do before going to that length is send me a scary letter in the mail, demanding money in an out-of-court settlement.

Re:It wasn't me, it was the software

[justinlee37]

I probably don't have to worry about this, anyway, my music library isn't exactly brimming with a bunch of hot-ticket RIAA acts, I ... don't like shitty music.

Re:It wasn't me, it was the software

[Warbothong]

"Obviously if they find drugs in your roommate's room, not in yours, then you're clear."

Forgive me for stating the obvious, but don't roommates share a room?

Re:It wasn't me, it was the software

[QuantumG]

heh. I suppose. Let's say "housemate" instead.

Re:It wasn't me, it was the software

[arkhan_jg]

I believe AOL is on there because they didn't forward the RIAA's 'we have your IP and you're screwed unless you cough up' emails/letters.

Re:It wasn't me, it was the software

[p7]

You're scenario would likely hurt you much more than help. Civil cases aren't as cut and dry as criminal cases. To win the damages, they only have to convince the jury that it is more likely than not that you were infringing their copyrights. Your formatting the hard drive after receiving a letter, may even be enough to cause the jury to find the case against you. The RIAA has alot going for it in these cases. First off, the offer of a settlement for a few grand. It would likely cost you more to mount a defense (The Foster case asked for $114,000 for attorney fees.) So right there you have to decide that if it is worth it to risk going to court. Now if you go to court they waive the settlement offer and now you are looking at full damages, which will likely be in the five figure range. Now even assume that you win your case, you probably won't get the RIAA to cover your legal costs (So far we know of only one case where legal costs were awarded and at least five where they were denied.) In other words the likely outcome if you are targeted by the RIAA, is you are going to be out a fair amount of money.

The second system might work, but it would require you to perjure and that could come back to bite you if they somehow found out you had another system. And of course, you would still likely be out legal fees.

Re:It wasn't me, it was the software

[Stanislav_J]

The interesting thing in your scenario is that you knew enough about computers to be completely knowledgeable about open wireless connections and trojans but failed to secure access to your network and let someone else cheat the system by using your Internet from another residence.

Knowing and acting are very different things. How many people do you know who were more than aware of the need (and methods) to constantly and systematically bck up their data, then cried boo-hoo when they lost it in a crash?

Re:It wasn't me, it was the software

[ultranova]

So you get put in jail even though you never saw, heard about or touched any pot? What makes me think you're talking nonsense?

Your incorrect assumption that laws have anything to do with justice, as opposed to simply being tools for enforcing order ?

Re:It wasn't me, it was the software

[Anonymous Coward]

He did say it was "open" like the road I drive my car on is open to where ever I want to go. If I choose to drive through the wall of a bank, are you saying because people who build roads are smart enough to know how to build roads should errect fences too?

I think you are confused about the definition of "open."

I would almost welcome an RIAA debate on such topics. I am quite confident I could bury them on the details but who really has that kind of time, will power, inclination or money. Not me but it would be interesting to get more of these facts out to the public.

Re:It wasn't me, it was the software

[flewp]

"Obviously if they find drugs in your roommate's room, not in yours, then you're clear."

Forgive me for stating the obvious, but don't roommates share a room?

Sure..... they share the living room, the kitchen, the dining room, and often the bathroom. Seriously though, here in the USA at least, you'll more often than not hear people refer to the people they live with as roommates as opposed to housemates, etc.

Re:It wasn't me, it was the software

[Anonymous Coward]

That is the worst analogy I've ever heard* on slashdot.

Your just upset the analogy didn't involve a car. :P

Re:It wasn't me, it was the software

[moj0joj0]

A similar situation happened to me, I was discussing CounterStrike tactics with a friend at a party and another "friend" overheard and called the police. They charged me with conspiracy to commit capital murder. It took 3 years and over $13,000 in legal fees and $25,000 for bail. Don't be fooled, the phrase isn't innocent until proven guilty beyond a reasonable doubt, it is guilty until proven innocent beyond a shadow of a doubt. It eventually worked out for me, but within six months my buddy plead out and took a felony and 5 years supervised probation. We have never played a FPS since then and I never talk to people about those games in a public environment.

Re:It wasn't me, it was the software

[neersign]

This is definitely an example of "grasping at straws" and wreaks of desperation. I'm sure there are cases where it is completely legitimate to blame a 3rd party, but I don't think this is one of those instances. If the truth is that some one else installed the software and downloaded the music, then this girl should have nothing to worry about and her defense would stand up on it's own merrits. I definitely do not think that blame should be assigned to the software or the ISP for providing access. If the RIAA wants to continue the trial and you are found to have done nothing wrong, then you sue the RIAA...there is no need to bring 3rd parties into this.

Re:It wasn't me, it was the software

[SCHecklerX]

Did the cops have a warrant? I don't think they are legally able to burst through your door without one. Of course, this is /. and IANAL.

Re:It wasn't me, it was the software

[MBGMorden]

There are certain factors (of which I'm not totally aware of all of them) that can allow immediate entrance without a warrant. Do you honestly think if they walk past a door and hear a woman screaming "Help he's killing me!" they're gonna respond "Hold on ma'am! We'll be right back with a warrant!". ;)

Re:It wasn't me, it was the software

[Anonymous Coward]

if(uid >= 938685 ) { ignorePost(); }

Re:It wasn't me, it was the software

[KingSkippus]

Well, damn. Every time I've been planning capital murder in public, I've always just said, "Um, we're talking about CounterStrike tactics here..."

I guess that excuse is shot. >:-(

Re:It wasn't me, it was the software

[bcharr2]

This is why your parents warned you about choosing your friends carefully.

I prefer the ones who don't get me busted incidentally.

Re:It wasn't me, it was the software

[D'Sphitz]

That's a pretty stupid statement. If someone uses your car in a bank robbery, are you going to take responsibility?

Re:It wasn't me, it was the software

[Anonymous Coward]

Ok, so everyone here should be generally smart enough to do this:

Create a Linux build using the distro of your choice.
Replace delete functionality with a wipe/purge function.
Configure your questionable software to use your "data" drive (possibly with encryption as an added layer).
Build a bootable CD of the distro and label it "questionable ethics".

Now, wipe your OS drive and install any OS of your choosing....when doing activities that you don't want tracked/traced, boot to your questionable ethics OS. Otherwise, boot normal. When you get that letter in the mail, yank the data drive and replace. Send the questionable ethics CD and the yanked data drive off to Upper Volta or Burkina Faso or whatever. Minimal evidence remaining for anyone to sniff.

AC

Re:It wasn't me, it was the software

[secPM_MS]

Judge Learned Hand, a noted jurist of a century ago once had a new attorney arguing a case in his court. After listening a while to the argument, he broke in on the new advocate's delievery with a statment "Sir. This is a court of law. It is not a court of justice. You must address matters of law.", or close equivalent.

Now what is law? It starts with the law as written by the appropriate legislature -- but nobody is really sure about what the words on paper mean, not the judges, not the attorneys, and not the prossecutors. It is only until the appeals courts have ruled on the meaning, that the legal interpretation is reasonably strong.

Large amounts of injustice are done when traditional interpretations hit new situations, and judges are in general not technologically literate, let alone following the latest fads. It is highly likely that a number of innocent people well have their lives ruined for the possession of illegal content about which they knew nothing. When the problem gets pervasive enough, defenses will arise and rules and procedures will change, but it is highly unlikely that anything will be done about the earlier ruined victims.

Re:It wasn't me, it was the software

[Strawser]

I believe the point of the 3rd party motion is to force AOL and KaZaA to enter the fight against the RIAA. The RIAA has a massive legal armada they can use against a largely-defenseless individual, but so does AOL (and probably KaZaA), so it will drive up the time & cost of the RIAA's campaign.

If everyone did this, it might put an end to the RIAA's battle plan of suing everyone on Earth.

Re:It wasn't me, it was the software

[Anonymous Coward]

It's called "probable cause." Basically it means if they have a good enough reason that something illegal is going down, they're allowed to go after it immediately. In this case it would be the guy who walked into the apt with a bunch of drugs.

IANAL, but I believe that if a judge rules that the police did not have probable cause (ie. their reason for busting in wasn't good enough) then all evidence that resulted from the search is thrown out.

At least, that's my understanding of how it works in the US.

Re:It wasn't me, it was the software

[sumdumass]

Suppose you have two people, the parent and the neighbor. Now imagine they are getting accused of using an Internet connection for stealing copyrighted works. One person who's only association is the other guy saying it had to be him says I don't know what your talking about. The other guy says it has to be the neighbor and BTW, I formated the drive not to hide everything and remove all traces but to get rid of a Trojan that your forensics team couldn't find a trace of.

Now, imagine you know nothing about computers other how to turn them on and your sitting on jury watching this unfold where one guy appears clueless and the other has an answer for everything. Who are you really going to believe? What do you think every one else it going to think? You don't need to close reasonable doubt in a civil suite. You need a preponderance of the evidence. You doing it all yourself might make you look guilty(er).

Re:It wasn't me, it was the software

[sumdumass]

The thing is, when you demonstrate that you know what you are doing and that you are very thorough you are dismissing the lack of forensic evidence as your proof it wasn't there. If you can manipulate the drive to totally erase a Trojan or virus you can do the same for copyrighted files. You are showing the court and anyone who is watching that anything associated with you and your computer isn't by accident. It could give more weight to RIAAs case in that "surely someone this knowledgeable about computers wouldn't accidentally leave a wireless lan connection unprotected."

I also find it interesting that you refer to the file left on the hard drive as "nonsensical ghost memory". I'm not sure anything is nonsensical about it and I never heard it called ghost memory before. When you format something or delete something, the computer doesn't normally remove the file, it just removes the hard drive's ability to find it. It would still be there in it's proper forms until something wrote over it. This wouldn't be a ghost or anything, it would be a proper file outside the directory trees.

Re:It wasn't me, it was the software

[sumdumass]

They supposedly didn't need one because they saw the drugs getting passed back and forth through a window they were looking in and they were looking in it because they followed a guy who purchased drug from an undercover officer. It went through the courts and I eventually got out of it. Whatever they did, there was enough evidence to keep it going. Well, that is until a couple months after the election and then it was just dropped. I ws given a letter saying that after a review the evidence doesn't point to my guilt and they weren't continuing the case. My lawyer had the judge pass a ruling/motion over of not guilty or something like that so they couldn't pick it back up later (double jeopardy).

Oh yea, I said a lot of "they can't do that"s too. But they did and I had to answer for them.

Re:It wasn't me, it was the software

[Anonymous Coward]

Don't hang out in drug dens and this shit wont happen. You admit you were watching and aware of a crime going on, and did nothing to stop it, and didn't even attempt to leave. You are lucky you got off. Don't cry about it here as you are guilty to a crime, if they decided to prosecute you or not has nothing to do with the fact you are admittedly guilty.

If you don't like drug crime laws, then work to end them, but until they are ended you are still committing a crime.

Oh, for the love of...

[Perseid]

Is everyone suing everyone for everything? It's getting to the point where if I hear about a lawsuit my first thought is that the plaintiff is trying to take advantage of someone. If that a sign that I'm an extreme cynic or that there's something really wrong out there?

Re:Oh, for the love of...

[Tomy]

"Tuez-les tous; Dieu reconnaitra les siens."

To paraphrase, "Sue 'em all, let the courts sort it out."

Re:Oh, for the love of...

[Nossie]

you are not the only one... :-|

I live in the UK, and I'm just concerned its gonna come over here more than it already has!

Re:Oh, for the love of...

[Doc Daneeka]

No, she's just trying to make a really strong and solid argument to build her case on.

1) Declare innocence
2) Blame some guy for installing alleged software.
3) Blame the maker of alleged software for working as intended.
4) Blame ISP for not informing her that she was using her bandwidth that she was paying for.
5) ???
6) Profit.

All in all, it's a fairly reasonable defensive strategy. I mean, who wouldn't want to shed doubt on their case's credibility early on in the proceedings?

Re:Oh, for the love of...

[fbartho]

The french version seems more appropriate here than your paraphrase. Is that wrong of me to feel that way?

Re:Oh, for the love of...

[QuantumG]

It's a civil case, "doubt" doesn't help anyone 'cept the lawyers.

Re:Oh, for the love of...

[Architect_sasyr]

Only if your local law enforcement realizes it was you ;)

Re:Oh, for the love of...

[eosp]

To translate literally, "Kill them all, God will recognize the sinners."

Re:Oh, for the love of...

[janzen]

Er, not quite; it's "...God will recognize his own", or "those belonging to him". "Sinners" would have been "les pécheurs".

The English version I've seen goes, "Kill 'em all and let God sort them out".

Re:Oh, for the love of...

[AbRASiON]

Sounds to me like she's been sued and trying to save her ass.

Re:Oh, for the love of...

[Acid-Duck]

You would of been correct in saying your seocnd statement is an analogy of the first one in a court setting, but it's definately not a translation. An accurate translation of your comment would be:

"Kill them all, for God knows his followers"

Re:Oh, for the love of...

[Anonymous Coward]

if(uid >= 938685) { ignorePost(); }

WTF???

[photomonkey]

The speedometer on my Jeep goes up to 100mph. Does that mean that if I get pulled over doing 100mph in a school zone that it's Chrysler's fault and not mine? Did Chrysler take measures to prevent me from speeding in a school zone?

Generally, I'm excited when anyone fights the maFIAA, but in this case, I hope she loses badly so she'll learn about pointing fingers.

Re:WTF???

[DaTFooLCaSS]

But if you boyfriend does it there is no reason for you to recive the ticket. Also there would also be speed limit signs and school zone signs to warn you of you soon-to-be demise

Re:WTF???

[cyphercell]

...the improper blocking of alleged (RIAA) warning messages by AOL and Sharman ...

This is the only line I see here that she should get to pursue to the end of time. If Chrysler made it impossible for her to determine that she was in a school zone then yes, she can sue.

Re:WTF???

[whoever57]

Does that mean that if I get pulled over doing 100mph in a school zone that it's Chrysler's fault and not mine? Did Chrysler take measures to prevent me from speeding in a school zone?

My first thought was similar, but the complaint has an interesting point: AOL offers parental controls. If those controls don't keep your child from using the computer in an illegal manner, are they defective and does this make AOL liable?

To use your car analogy (usually a bad idea), Chrysler sells the car with a parental control which they claim will keep your kids out of trouble and your kids are stopped doing 100mph in a school zone, does Chrysler have any liability?

Re:WTF???

[Opportunist]

My computer runs anything that is a valid Win32 executable. Does that mean if I get infected with a trojan after double clicking something sent to me called invoice.pdf.exe that it's MS's fault and not mine? Did MS take measures to prevent me from running just any kind of program?

Sorry if it sounds like mockery, but in this case it's actually the case. We blame MS. We blame the trojan writer. We do not blame the clickmonkey who can't resist double clicking everything he sees. Why is that so? Why is it excusable to use zero brains when accessing a computer, claiming it's "too hard" or "too limiting" to take responsibility and instead blame the manufacturer of the system?

You have no idea how hard it was for me to write this, since I do blame MS for a lot of things, many rightfully, but they are actually only partly responsible for the amoung of malware currently circulating. Until the advent of MPack, nearly all widely spread malware used user stupidity as the key attack vector, requiring user interaction and actual "help" from the user to infect a system. Why is the user not liable for stupidly clicking everything he sees?

Re:WTF???

[polygamous coward]

Only if you hit some kids.

Re:WTF???

[r00td43m0n]

By stating that AOL offers parental controls that should allow a parent to stop a child from illegally downloading music, are you saying AOL should stop children from sending viruses, using trojans and phishing tools?
I thought parental controls were ways for parents to decide what type of content your children have access to (porn, violence, etc) not if they choose to do things illegally. And to take things a step further is it right to allow AOL the possible control of things outside of it's software (not just the browser)? If you're suggesting that it have more control than simple content control, then their software isn't too far away from being a rootkit that allows total control of your computer.

Re:WTF???

[despisethesun]

But if you boyfriend does it there is no reason for you to recive the ticket.

Photo radar disagrees.

Re:WTF???

[Archangel Michael]

"Why is it excusable to use zero brains when accessing a computer, claiming it's "too hard" or "too limiting" .... "

Have you seen some of the users? This is really not too far of a stretch. Seriously.

Re:WTF???

[X0563511]

That's no excuse! A modern computer is one of the most complex machines known to Man, yet everyone expects to be able to use one without danger.

They make you test to get a license to use firearms, drive cars, fly aircraft, sail large ships, operate heavy machinery, work with volatile chemicals. But just anyone can hop on a computer, and damn if it's their fault something gets fucked up. Heaven forbid they freaking PAY ATTENTION to what the hell they are doing and use more than 3 braincells at a time! It's all insane.

Please tell me I am not crazy for thinking like this.

Re:WTF???

[sh3l1]

Again, everyone is trying to place outdated laws on technological cases. We NEED new laws for the tubes.

Re:WTF???

[TheVelvetFlamebait]

The speedometer on my Jeep goes up to 100mph. Does that mean that if I get pulled over doing 100mph in a school zone that it's Chrysler's fault and not mine? Did Chrysler take measures to prevent me from speeding in a school zone?

No. This partially why we have driver's licenses: to place the responsibility of your actions on the road upon you alone.

Re:WTF???

[wvmarle]

My first thought was similar, but the complaint has an interesting point: AOL offers parental controls. If those controls don't keep your child from using the computer in an illegal manner, are they defective and does this make AOL liable?

This totally depends imho on how this service has been advertised. "Parental controls", as such, doesn't say much. What is a "parental control", really? Does it limit times, who can log in, what they can do (which software to use), what they can download (file type, content type, from which source)? This all is not obvious nor can anything be considered "normal service" for such a service.

I also really doubt there will be anything in AOL's "parental controls" advertising or sales contracts or TOS that says "block children from doing illegal activities". Or even "stop children from downloading copyrighted content" - which would basically mean everything on the Internet. Including this post, of which I own the copyright, with implicit permission to Slashdot to publish it.

As another poster pointed out already, the purposefully blocking of warning messages, if that's true, would be the only thing Ms Santangelo can sue AOL and/or Kazaa for. And if true, it would be quite worrying to me and to AOL. As if so, AOL is apparently inspecting and arbitrarily refusing content, which makes it clear to me they are not a common carrier. And if so it's time for RIAA and their members to start suing AOL themselves, for at least assisting in infringements on their copyrights. Now that would be interesting.

Re:WTF???

[maalau]

The speedometer on my Jeep goes up to 100mph. Does that mean that if I get pulled over doing 100mph in a school zone that it's Chrysler's fault and not mine? Did Chrysler take measures to prevent me from speeding in a school zone?

No, Chrysler isn't responsible here, and yes they did take measures to prevent you from speeding. That's what the speedometer is for: it indicates how fast you are going, not how fast you are able to go.

Presumably you are a licensed driver. Therefore you are fully aware of the traffic laws, especially posted speed limits, as well as the consequences for breaking those laws if caught, or worse: cause personal or property damage. As a licensed driver you are instructed, or minimally directed, to use the speedometer as a tool to keep within the posted speed-limits. You are responsible for your speed.

If on the other-hand: the speedometer is faulty, either through defect or malicious design; or speed limits are not clearly marked, again either through defect or malicious design, that is another story. This seems to me to be akin to at least part of Michelle Santangelo's argument.

FTA:the negligence and breaches of the Third-Party Defendants named herein: in the defective design of Sharman Network's program, "Kazaa" which was a dangerous instrumentality in its each and every use as it existed in 2002-2004 and the failure to warn by AOL and Sharman

Re:WTF???

[Anonymous Coward]

Why is it excusable to use zero brains when accessing a computer, claiming it's "too hard" or "too limiting" to take responsibility and instead blame the manufacturer of the system?

There was a time when you could - in the process of training the "click monkey" - tell a user it is OK to press any key or click anywhere. That time has passed with MSFT products. More so, they make it exceedingly difficult to run their own products together in non-root mode (sometimes works, sometimes doesn't, almost always is needlessly painful to setup). This is still the case with the 2007 Vista. Education should only be a small part of security.

Re:WTF???

[Anonymous Coward]

Hey, you're on Slashdot, buddy.

You're supposed to write, "I hope she looses..." Not "loses."

Come on, get with the program.

Re:WTF???

[k01_f15h]

Clickmonkey, that word gives me an erection just thinking about it...

Can I have your babies?

Re:WTF???

[carl0ski]

It's been tried a few times in Australia
Cases and even a bill that would outlaw Speedometers that exceed the maximum speed limit (110 Kmp/h)
Obviously it has failed a few times.
I find it strange that a KC Ford Laser/ Mazda 323 speedometer reaches to 220kmp/h
The car can't possibly reach that speed without falling to pieces

Re:WTF???

[Eivind Eklund]

With regards "Why is the user not liable for stupidly clicking everything he sees?" - I have asked myself more or less the same question: "Why not make the owner of a machine responsible for the damage that machine does?" Actually, I know the answer: People are afraid of doing that change and feel it "unfair" to be held responsible for something they don't feel they control.

The consequences of holding the users responsible would be fairly small for the users in the end, though, though it might become large for software developers (and possibly be bad for open source).

The first consequence would be that everybody would "have" to have insurance if they wanted to go on the net, as there would be a risk of large liabilities.

The second consequence would that insurance companies started managing security properly, and took various levels of payment depending on how they estimated risk. This would mean that it would be too expensive to run around with an insecure system or with insecure practices.

The third consequence would be that we got software that actually was secure by design, because the liability ended up where it was supposed to go: At the point where the damage is possible to control. For the cases of complex software that the user don't control and the insurance company won't cover, this would have to be indemnified by the software vendor.

Overall, I feel this is the right model: Put the cost of the risk where the risk is possible to control, which is at the user level. This creates incentive for users to learn and behave, and through users and insurance companies incentives for vendors and software developers.

Eivind.

Re:WTF???

[Opportunist]

People are afraid of doing that change and feel it "unfair" to be held responsible for something they don't feel they control.

Isn't that scary? That people operate machinery they don't control? I mean, yes, this isn't a car with the potential to kill a person, but it is a computer which has, combined with the many, many others equally secure, to kill the internet and thus an important economic factor of today.

Insurances would be an important issue, but then, you can easily lower your rates with some basic security means. Buy a router, install some AV kit and your rate would drop. It's not like those things cost a fortune, we're talking about 30 bucks for a router and another 30 bucks a year for AV and support. Is that really too much?

Re:WTF???

[mcrbids]

To use your car analogy (usually a bad idea), Chrysler sells the car with a parental control which they claim will keep your kids out of trouble and your kids are stopped doing 100mph in a school zone, does Chrysler have any liability?

I like bad car analogies. They usually clarify a point that nobody intended to make, while hiding the fact that nobody has any clue what you are talking about. I think the analogy here would be more like:

Chrysler sells the car with a parental control which they claim will keep your kids out of trouble. But the kids use the car to listen to rap music and get bad ideas in their head. They go down the street and shoot the neighbors cat. The neighbor is a medical marijuana user, whose stash was just stolen, and is just itching to call the police, except that getting the police to enforce the theft of medical marijuana might be difficult.

And the neighbor across the street is an alcoholic, and everybody knows, but nobody says anything to the neighbor. Both drive an older Chevrolet, one blue, one green.

When they are both drunk or stoned, they sometimes get into the wrong car and wonder why their key doesn't work.

Sorry... what was the point again?

Re:WTF???

[Eivind Eklund]

Yeah, it's scary. Unfortunately, given today's technologies, it also seems inevitable.

I know that I don't have complete control; and I've written parts of the OS I run on (including being part of the security team for it for a while), and hacked on most of the components I run. There's just too much code and the security model we run is too difficult to keep secure.

However, as I see it, this is solvable by re-allocating risk - so insurance solve it. And, as you mention, simple security measures will help bring the price down.

Deeper security measures could bring the price down more - so, there would suddenly be a good economic foundation for getting more secure code.

It'd be interesting...

Eivind.

Re:WTF???

[gnasher719]

'' That's no excuse! A modern computer is one of the most complex machines known to Man, yet everyone expects to be able to use one without danger. ''

Of course we do. A car weighs usually between 1.5 and 2 tons and often moves at a speed of 70 miles per hour, that is a lot of kinetic energy. A bullet has much less weight, but travels at much higher speed, and if it impacts, all its kinetic energy goes into a small area. A modern computer however weighs maybe 5 pound if it is a laptop, hopefully not more than 30 pound otherwise, and is sitting still. Hard disks are inside a case that should protect me. I hope that the CD drive is carefully designed so that it doesn't crack CDs and shoots out parts of them. Yes, I expect to be able to use a computer without any danger.

Re:WTF???

[Opportunist]

Basically I see the liability split between user and OS vendor, depending on, well, liability.

If you click on malware, if you run software from unknown sources, if you get informed that some software has the potential to do harm to other computers if you do this or that, it's your liability. If the user behaved as outlined in the manual, if he did take the precautions described by the manufacturer of the software, and yet a buffer overflow, a malformed packet or another exploit makes it possible to use your software as a launching point for malware and if your software allowed the computer to be infected, it's your liability.

Simple as that. Yes, that puts programmers in a very difficult situation. I know how hard it is to create bug free software (ok, how impossible it is). But it is a matter of responsibility. Unless someone is liable for all the malware circulating, everyone will ignore it.

Re:WTF???

[Eivind Eklund]

I agree that somebody should be liable for all the malware that is circulating.

End of the line, this liability has to "pass through" the end user's computer, as this is the point the rest of the world can see.

At that point, there are a few different possibilities.

One is that the liability strictly follows software unless the user has done something wrong. The user will probably still have to get liability insurance, and in some cases the insurer will be able to recover from the software maker. This option stop free software, as it is impossible to give away software without having a significant cost from insuring it.

Another is that liability strictly follow the user, and the user can get liability insurance wherever they want. This allows the software developer to provide insurance if they want to - and they're in a pretty good position to do so - and otherwise allows somebody else to pick up the insurance. This allows free software to continue, with the possible slight speed bump that it will be hard to get it certified (so insurance premiums may be higher).

The advantage of the first option is that it force quality everywhere. The advantage of the second is flexibility, including the ability to provide software for free.

Personally, I prefer the second option, as I find free software to be important, and I believe the trade off about what risks to accept (ie, cost of insurance) most reasonably can be taken by the end user. I also believe that insurance premiums will drive forth the choice of good software practices. With manufacturer liability, I think we'll just see a bunch of "shell corporations" going bankrupt when the software turn out to be buggy, and a lot of problems of finding out if "incident X" was caused by the user or by the software.

Eivind.

Re:WTF???

[Atrivis42]

I like the car analogy for a few reasons. First, you are licensed to operate the vehicle on public roads where others are operating their vehicles. The license proves (supposedly, but that's another story) that you have been trained on how to operate the vehicle and that you can operate that vehicle safely. It also proves that you have agreed to obey the rules that are involved with driving such as speed limits.

Which brings me to my point: you have to be licensed to operate a vehicle on public roads, why not be licensed to operate your computer on the public internet? Maybe you would have to take basic computer/internet knowledge test and possibly demonstrate that you know how to operate an already installed virus scanner or something. This is just a thought and I haven't thought through all the technicalities (person vs. residence license, state or federal, etc.).

I'm not actually a proponent of this, just something that came to mind while reading the car analogy.

Re:WTF???

[jedidiah]

It depends on the software.

Not everyone is cool with or even capable of being the computing version of Mr. Monk. While near-clinical paranoia is certainly a useful defense mechanism online, many people aren't up to it.

Re:WTF???

[jedidiah]

...nah. Just make people do their own tech support.

That way when the mother-in-law's machine implodes less than a week after we clean it up, then she is just stuck "off on the side of the road". The problem of "idiots on the freeways" self-corrects after awhile as all of the idiots end up crashing and taking themselves out of circulation.

All the people that bail out all of the idiots when they commence to shooting their own toes off help enable all of this crap.

Re:WTF???

[Opportunist]

Insurances don't care how secure something is. They can't really qualify that anyway. What they care about is statistics. If system X is insecure as hell but nobody but 10 people on the planet use it, it's secure due to the fact that nobody bothers to write malware for it.

The same applies for Linux, to some degree. There is no market for Linux malware, simply due to its lack of widespread use, especially amongst people who click everything presented to them. Not to mention that Linux is usually a bit more secure than the average Windows installation.

Re:WTF???

[Opportunist]

That's not even necessary.

When you look at malware, you will see two very distinct groups of malware: Those that require user interaction and those that don't. And the first group is overwhelmingly larger. This group requires the user to click on something, to start a program or to do something else that's simply and plainly stupid. Avoiding this kind of malware takes no special knowledge at all, it requires care. If you're not utterly careless when surfing the net and don't open every attachment sent to you, you're already safe.

Against 90% of the second group you can employ a router with a different OS than the machine behind and up to date patched OS and software, all things that don't require intimate knowledge of computers either.

What remains are things like MPack and other remote exploits that can bypass the security. This threat can be minimized by avoiding exploitable tools. I do admit that this does require that someone does at least read certain IT news pages. But I could just as well see a business idea here, where you could inform people for a rather modest fee about threats and how to counter them.

I mean, we pay mechanics a fortune to keep our cars in shape, to change our oil, check tires and electronics and keep them safe. Why is it too far fetched to ask the same for computers?

Re:WTF???

[jrumney]

So when the police came for the alcoholic neighbor, he claimed that he didn't remember shooting the cat, and tried to pin it on Chrysler, Jack Daniels, and the homeless guy who washed his windscreen for a dime while he was waiting at the traffic lights two days earlier.

Re:WTF???

[Reziac]

I had similar thoughts... and if this goes against AOL, one has to wonder what can of worms that opens up.

If "defective parental controls" get the blame, it could mean the end of ISPs providing said controls. (Probably a good thing, since parents ought to be responsible for their kids anyway.)

If *AOL* itself (as a "facilitating" ISP) gets the blame, it could be the start of severe ISP-imposed censorship, and the end of the concept of common-carrier immunity.

I can see how someone cursed with an RIAA lawsuit would be thrilled to shift the lawsuit to deeper pockets, but I'm not sure it's such a good thing for anyone else.

Re:WTF???

[Opportunist]

Well, just because they sue doesn't mean that they get the judge to side with them.

You may safely assume that AOL will press against it with all its might, since common carrier status means less money spent on crap like filtering technology and basically being not liable for anything transfered. If you're liable for what your lines carry, you're playing russian roulette. You cannot filter everything. There is no such thing as a perfect filtering tool. Proof: Spam.

I doubt that they will easily crumble. Personally, I guess the result of this suit, should it ever really reach a court to get a verdict, will be thrown out.

Re:WTF???

[Eivind Eklund]

Yeah, they care about statistics - that's the primary tool to them. What they really care about is what odds they predict of something going in each direction, and underlying security can change how they calculate those odds.

This is how you get lowered insurance premiums from installing an alarm system, and it is a primary force for various company investments in security (though as far as I know not commonly in computer security, as the present security models there are too simple.)

So, sure, they might change the risk assessment based on something being obscure; a smart insurance company would also change it based on something actually being fairly secure, as far as they could evaluate. It's just a question of how it is easy to evaluate - and it all end up as a selection of statistics, as that's what they end up with. It doesn't meant that the model underneath those statistics has to be naive - and remember, EVERYTHING is a question of statistics... Even the existence of the world, it just has very very good odds.

Eivind.

Re:WTF???

[NewYorkCountryLawyer]

Until now, AOL has been assisting the RIAA in the persecution of AOL's customers. Maybe this will be a wakekup call to them that they have some responsibility to protect their customers' rights too. Until now the customers have been voiceless.

Re:WTF???

[Opportunist]

That's exactly the point. They don't care how secure or insecure something is. They care about the chance of something bad happening.

I'd wager the premiums for using an OSS OS (Linux, BSD) would be lower than for Windows. Not because it is inherently more secure, just because the chance of getting a trojan is lower. It is simply and plainly a lower risk by the very nature of trojan writers, targeting the largest market. They will check cases, check chance and act accordingly. They do not care about security itself, they care about the results of better security.

Re:WTF???

[Reziac]

Well, there is that -- once the ISPs start seeing =themselves= as *victims* of the RIAA lawsuits, they're far more likely to resist on their own behalf what they would never resist on a mere customer's behalf.

What we need is bigger, meaner victims!! :)

umm, no

[cyphercell]

the failure to block the downloading of such files by AOL;

No, AOL should not block files that I am downloading at all.

Re:umm, no

[Propaganda13]

the failure to block the downloading of such files by AOL; the improper blocking of alleged (RIAA) warning messages by AOL

So which is it - AOL should or should not block?

Re:umm, no

[JamesRose]

I beleive what she is referring to is the fact that the kazaa software automatically lets people download FROM her, and knowing this, AOL should have blocked ports by default- or sumthing like that.

Re:umm, no

[cyphercell]

For her sake, I hope the judge doesn't bring that up.

Re:umm, no

[cyphercell]

Kazaa uses TCP port 1214 for incoming and outgoing connections. http://www.dslreports.com/faq/6845

Regardless, the last thing I want from an ISP is them deciding what I get to see on my computer.

Re:umm, no

[Opportunist]

For our sake, I do, too.

Being liable for downloads is the last straw required to get ISPs into a filter frenzy.

Re:umm, no

[644bd346996]

AOL should block the download if and only if the appropriate parental controls are enabled. It's that simple.

Re:umm, no

[Propaganda13]

How would that be determined? People changed file extension, compress, and do a million other different things. A smart kid would have a Linux flash drive or live cd and bypass anything their parents put on the computer anyways.

Re:umm, no

[MacDork]

No, AOL should not block files that I am downloading at all.

So you would prefer AOL monitor your usage and then sue you for what someone illegally downloads on your account as they did in this case?

This would set TERRIBLE FUCKING PRECEDENT

[karmaflux]

I hope this chick loses. If she wins this idiotic suit, it would set legal precedent that it's the ISP's responsibility to police its users. That's just about the worst possible idea ever.

Re:This would set TERRIBLE FUCKING PRECEDENT

[xigxag]

Don't get all panicky. Not every stupid legal result becomes "precedent," particularly not at the trial level. Furthermore, trying to implead KazaA isn't really stupid even if it's wrong. It sounds like she's got decent legal representation. The best result for her is that there's no liability to begin with. But her lawyer wants to be prepared for that theory failing, so in the alternative, it was really KazaA's /AOL's fault to begin with. I'm sure he's also prepared to argue that even if there was some liability, there were mitigating circumstances and/or there were minimal damages, etc. Otherwise, she might as well just come out and say, "YOU GOT ME NOW! YOU FIGURED ME OUT! YOU CAUGHT ME RED HAINDED!" and let them monetarily rape her.

Re:This would set TERRIBLE FUCKING PRECEDENT

[Killer Gentoo]

No, It is already NOT the ISP's responsibility, as ISP's have common carrier status.

I'd love to not only see her lose (she will), but AOL and Sharman may very well sue for damages, that'd be hilarious, her mistake could get 3 unsavory corporations on her back.

Re:This would set TERRIBLE FUCKING PRECEDENT

[dana340]

The law is only as good (or as bad) as the lawyers arguing it. This only becomes a piece of case law of other lawyers are smart enough to argue it in the future, and other judges apply in such a way that it causes ISP's to change. (cost of policing users

Think of it this way, if the movement for the XXX TLD can cum as far as it does, then it COULD set a precedent. however I think it will be very unlikely due to the structure of the agreements that accompany using your ISP.

Re:This would set TERRIBLE FUCKING PRECEDENT

[shutdown -p now]

No, It is already NOT the ISP's responsibility, as ISP's have common carrier status.

Unfortunately, in the USA, they do not.

Definition of EULA (from the complaint)

[whoever57]

1 "End User License Agreement," a contract of adhesion, abominably long, written in tiny print, which no one reads.

Re:Definition of EULA (from the complaint)

[Opportunist]

At least she's not lying in court. Everything in this sentence is painfully true. Though she omitted "kept in legalese so nobody with a sane mind can understand it, even if he did read it".

Re:Definition of EULA (from the complaint)

[orkysoft]

contract of adhesion

You mean they use it to stick it to you?

Rights Based Society

[Vader82]

We've done a very good job of engineering a rights-based society here in the United States. But unfortunately for us, there has been little-to-no mention of any kind of responsibility. And as the legal profession has slowly figured that out our society has grown more and more responsibility averse.

There is no motivation to take responsibility for anything since you aren't forced (or even encouraged) to. By freely granting all rights without associating any responsibilities we've created a system that doesn't have enough incentive for good behavior. And we're reaping it with every frivolous lawsuit that bogs down our legal system.

I hope either we eventually figure this out and evolve to a system with a good rights/responsibilities balance, or after our country eventually declines that future generations will take the lessons we've learned to heart and not make the same mistakes.

Re:Rights Based Society

[NoMaster]

I'm normally one of the first to shout 'grow some balls and take responsibility!' when things like this come up, but she does have a couple of points:

• the improper blocking of alleged (RIAA) warning messages by AOL and Sharman: This is interesting. If AOL (or, somehow, Kazaa/Sharman Networks) prevented her from receiving warning messages which may have caused her to stop, then any infringement after those messages were sent may be at least partially down to them. If so, they they should take some of the liability.
• the secretive file sharing system of and by Kazaa: This is a goodie! Any normal & reasonable user expects a program to stop running when you click the 'close' button, right? Kazaa kept running in the background ! If a user takes reasonable steps (i.e. clicking that 'close' button) to stop infringing, and yet the program continues on infringing, whose fault is that ? The user has tried, in good faith and to the best of their knowledge, to avoid further infringement - but the program decided that it knew better...

As I said, interesting...

Re:Rights Based Society

[StikyPad]

It's hardly secretive though. The icon is in the system tray at least. Windows file and printer sharing is a lot more "secretive" than that. If the application didn't close when intended, the cause is ignorance on the part of the user, not "secretive file sharing" on the part of the application.

And it stinks that she's trying to blame the person who allegedly installed it for her in the first place. Words would not describe the anger I would feel if someone tried to blame me for something like that. There's no way she didn't realize the program was installed, especially if she supposedly knows who installed it.

Trying to bring in a bunch of third parties to a lawsuit is clearly indicates that this young woman is trying to avoid personal responsibility. As much as I think the RIAA's lawsuits are BS, I wouldn't try to use other parties as a shield.

The possibility that e-mails were blocked by AOL is interesting, but the rest of it is utter crap. Of course, that's the typical way lawsuits go: Throw a bunch of shit and see what sticks.

Re:Rights Based Society

[NewYorkCountryLawyer]

she does have a couple of points: * the improper blocking of alleged (RIAA) warning messages by AOL and Sharman: This is interesting. If AOL (or, somehow, Kazaa/Sharman Networks) prevented her from receiving warning messages which may have caused her to stop, then any infringement after those messages were sent may be at least partially down to them. If so, they they should take some of the liability. * the secretive file sharing system of and by Kazaa: This is a goodie! Any normal & reasonable user expects a program to stop running when you click the 'close' button, right? Kazaa kept running in the background ! If a user takes reasonable steps (i.e. clicking that 'close' button) to stop infringing, and yet the program continues on infringing, whose fault is that ? The user has tried, in good faith and to the best of their knowledge, to avoid further infringement - but the program decided that it knew better... It is a fact that Kazaa was full of adware, spyware, viruses, and all sorts of trick devices, and studies have shown that most Kazaa users did not know if they were sharing, or what they were sharing; many of them were sharing every single file on their computer and didn't even know about it. See, e.g., RIAA November 15, 2004, testimony at Federal Trade Commission, exhibit A to reply affidavit of Zi Mei in Atlantic v. Does 1-25 and November, 2006, report to US Patent and Trademark Office, set forth as exhibit B to Answer in Atlantic v. DeMassi.

Re:Rights Based Society

[number11]

It's hardly secretive though. The icon is in the system tray at least.

The average user (who doesn't read /.) doesn't have a clue what all that crap on the system tray is. Take the average consumer computer that comes with all those convenient preloaded programs, it's got about 25 tiny inscrutible icons down there, the only one they've figured out is the clock. Maybe. So they ignore all that stuff.

And half the time Windows hides those icons anyhow.

Re:Rights Based Society

[RealGrouchy]

As I said, interesting... According to you, maybe.

According to the /. mods, it's only 20% Interesting. Luckily for you, it's also 50% Insightful and 30% Informative, though!

- RG>

Re:Rights Based Society

[file terminator]

Any normal & reasonable user expects a program to stop running when you click the 'close' button, right? Kazaa kept running in the background ! IMHO, this is a non-point. I have never used Kazaa, so I can't claim personal experience, but if it minimizes to the system tray as another poster claims, only the most clueless of individuals could possibly claim ignorance. That's no longer a "normal & reasonable user." There are several programs that minimize to the system tray that normal users can be expected to have encountered, and be at least passingly familiar with. Software firewalls, anti-virus software, Skype (and probably Windows Messenger, although I don't use that either), the volume control and probably "safely remove hardware" as well. I really can't see this as anything else than an attempt to avoid taking responsibility.

If AOL (or, somehow, Kazaa/Sharman Networks) prevented her from receiving warning messages which may have caused her to stop, then any infringement after those messages were sent may be at least partially down to them. Somewhat more relevant, but still. "I'm downloading music files from... I have no idea from where, actually, but somehow still believe that it is OK and perfectly legal." Seriously. Any time you go to the cinema, you get the "music piracy is a crime" pseudo-trailer thrown in your face (or at least you used to). It's hard to accept that anyone above the age of, hmm, ten maybe, is going to be unaware that there are some sort of issues involved, even if common sense somehow fails to tell you that.

People should stop using the "I'm stupid, which absolves me" excuse for everything. If you're that stupid, you should not have a computer; you should have some sort of restricted-access restricted-function system that lets you surf the Web and read your e-mail and use some sort of instant messenger, but does not allow you to install anything. Or at most, install programs that some external entity/company is willing to take legal responsibility for, since you are too stupid to do that yourself (meaning trivial and safe stuff). Hmm. Having written that, maybe that is the point of Windows Vista, and the current direction of Windows; protect the stupid user from liability. And protect Microsoft, of course. Because, you know, that is the next logical step: "Why does Windows allow me to install programs that let me break the law? They are responsible for this, not me!"

Re:Rights Based Society

[Anonymous Coward]

And half the time Windows hides those icons anyhow.

Ah-ha! So it's Microsoft's fault after all! I am so suing Balmer...

Re:Rights Based Society

[Alsee]

it's got about 25 tiny inscrutible icons down there, the only one they've figured out is the clock

Holy shit! Those little numbers in the corner are a clock?
Daaaaamn! You're right! The numbers in the corner of my computer are almost the same as the numbers on the front of my cable box! That's neat!
I'm really starting to get into this computer stuff. I learn something new almost every month.

-

Re:Rights Based Society

[TEMMiNK]

Just because somebody is improperly trained or doesn't understand the full workings of a device (in this case a personal computer) doesn't mean they are not responsible for what that device does. Examples: Guns, Cars, Fireworks, anything you like.

Re:Rights Based Society

[Kijori]

If someone shoots you because the switch they thought would deactivate a weapon actually caused it to fire, would you hold them fully responsible? Even if that switch had been designed to look exactly like a standard safety, despite actually doing nothing? How about if they run someone over because their car was designed so that pumping the brake makes it go faster instead of slowing down? (Pumping deliberately chosen because it's something people expect to be a good way to stop, but isn't a standard check when you start your car - just like a close button on an application).

And what if the user couldn't tell that those actions hadn't stopped the gun/car?

If the user presses a button whose standard function is to stop what the program's doing, and the program goes away without any warning it's still running, I don't think it's unreasonable for them to assume it has in fact quit - that would be my assumption, and I wouldn't check the system tray if I didn't know it would be there.

Re:Rights Based Society

[NewYorkCountryLawyer]

If the user presses a button whose standard function is to stop what the program's doing, and the program goes away without any warning it's still running, I don't think it's unreasonable for them to assume it has in fact quit - that would be my assumption, and I wouldn't check the system tray if I didn't know it would be there. By the way, the defendants here are a 16 year old and a 20 year old, who were 12 and 16 at the time of the alleged "infringement".

Re:Rights Based Society

[Razed By TV]

The numbers in the corner of my computer are almost the same as the numbers on the front of my cable box! The numbers in the corner of your computer screen keep flashing 12:00 12:00 12:00?

Re:Rights Based Society

[Alsee]

Duh, silly! Don't you know anything about technology?
Cable boxes have built in clocks.
VCR's have built in 12:00 flashers.

I dunno why VCR's have 12:00 flashers, I like the cable box clocks much better.

-

This could be more interesting than it looks

[Opportunist]

Sure, sounds silly. You have Kazaa on your computer, so who's responsible for the downloads?

If Kazaa was a trojan, it wouldn't be the user. So I'm quite interested in seeing how this turns out. Is ignorance a defense? It is usually in the case of computer malware, where you can act as irresponsible as you want and click on anything and everything. You're not liable for it, whether you become the spamchucker of the week, another drone in a DDoS attack or a launching point for more malware, you're off the hook. You're too dumb to understand it, so you're not liable.

I'll be waiting for that verdict. Is ignorance an excuse? Are you responsible for your computer's actions? I could well see this becoming an interesting turning point in the question who's liable for your computer's actions.

Re:This could be more interesting than it looks

[Anonymous Coward]

If it turns out that you are responsible for your computer's actions, shouldn't the user have a right to see all the code whose behavior they are liable for?

Re:This could be more interesting than it looks

[cez]

Agreed. It will also be interesting to see how the "think of the children" card plays out as well. At what age would we be able to hold her responsible? After she had her sweet 16? She was a minor at the time, that shifts focus to the parental figures/filters that would have been expected/available with an AOL account.

Re:This could be more interesting than it looks

[Duhavid]

Depends on who put it there, and what was told her about it.

Of course, assuming that someone else put it on there and said
something like "yeah, download what you want, its all free, no
worries" only really means that the installer is also liable
( not liable instead of ).

Re:This could be more interesting than it looks

[Opportunist]

You think you get a malware writer to send you his source code?

That's actually not really necessary, as long as the software does what it is supposedly doing. I don't know how my car works, I also couldn't "reverse engineer" it even if I had the skill. I have to believe the manufacturer that the car slows down when I hit the breaks. If it does not, the manufacturer is liable. In turn, if the software does something it should not do according to its creator, the liability of the user ends and the liability of the creator starts.

Well, should start. You know those "use this software at your own risk, I'm not responsible for anything" we get to read in pretty much every EULA.

Re:This could be more interesting than it looks

[Opportunist]

Well, a quite interesting question. Does AOL give any guarantees that their net-nanny works? Blame AOL for giving a guarantee they simply cannot uphold. If not, blame the parents.

They don't know jack about computers? Sucks for them. Ignorance is no excuse, though. You cannot replace responsibility for your kids with technology. It didn't work with the TV as a babysitter, it didn't work with school as a replacement for raising kids yourself, it doesn't work with blocking and filtering software instead of checking what your kids do online.

Re:This could be more interesting than it looks

[Anonymous Coward]

Then it seems that a company could deliberately place a trojan in their product and use a standard EULA to deny all responsibility, since it is running on the customer's computer.

Re:This could be more interesting than it looks

[Anonymous Coward]

If Kazaa was a trojan, it wouldn't be the user

If Kazaa was installed by someone other then the computer owner and it allows other people to access files on that computer as well as download files without the owner's permission, then how is it not a trojan in this respect? This would be somewhat similar to someone placing a "legal" keystroke logger on your computer and configuring it for open access. While AOL and Kazaa should be able to defend themselves here they should also file papers in support of the young person vs. the RIAA, if nothing else it would be good publicity for them as well as a chance to publicly put forth the related facts. Technically if no one was downloading music deliberately onto this person's computer and they only passed through the computer, then truely the computer is no more responsible for transfers then any router out there which had the data passed through it. If someone broke into your house, hooked into your electrical service, ran wire down the street and used it to electrocute someone, should you be held responsible? Should the electric company? The electrician who wired the house? The manufacturers of the electrical components? The courts wouldnt even consider such nonsense for long. However this seems to need to be established in court that perhaps in this case the computer was nothing more then a pass through device and the owner should not be held responsible. If this is the case and they find the owner of the computer responsible then they should also find the ISP and Kazaa responsible because they acted as transfer agents too. The person that alledgedly installed Kazaa on the computer though may find themselves in a bit of hot water.

Re:This could be more interesting than it looks

[bwcbwc]

Actually, I think in this case ignorance IS an excuse. Not ignorance of the law, but ignorance of the fact that infringing activity was occurring. IIRC, copyright infringement requires that the infringement occurs knowingly and intentionally. On the other hand, IANAL.

Re:This could be more interesting than it looks

[Opportunist]

Well, technically that's what adware and spyware-bundled-software does. It gives you some tool for "free", in exchange for your surfing habits or for showing you obnoxious ads all the time.

It also gives AV vendors a headache. Technically, it behaves like malware. But may you find it? It is after all software that told its user clearly (well, as clearly as an EULA gets) what it will do to him.

Personal Responsability.

[cyanyde]

When will people learn, they're responsible for their complex devices, and all the EULA's the come with them. When will they wake up and understand that the machine they own is their own. It's a sad day when we have to advocate for other people to own our things, so we no longer have to bare the burden of taking accountability of it's use.

Re:Personal Responsability.

[Opportunist]

When will they wake up and understand that the machine they own is their own.

Maybe only after they realize that the machine they have bought isn't in their ownership anymore. For reference, see TCPA, DRM and the DMCA. The first two ensure you don't run what you want, but only what you're allowed, the third ensures that you break the law should you dare thinking about removing the first two.

Re:Personal Responsability.

[X0563511]

In which case I will break said law without remorse or consideration.

Re:Personal Responsability.

[Opportunist]

A law that's unenforcable is bound to be broken. How do you want to enforce a law like this? Yes, you can enforce the ban on selling copyright-circumvention tools. But the use? How do you want to keep me from using it? By making my computer report what tools I use? How do you want to keep me from blocking those reports or tampering with them?

Re:Personal Responsability.

[sexybomber]

"the machine they own is their own"

Noooooo, when one buys a computer (at least a Windows computer, IIRC), they are not, in fact, buying the actual, physical object. They are buying an invisible, non-corporeal license to use said physical object.

At least, that was my understanding of it. Or am I way off base? (coffee hasn't kicked in yet)

Both companies already offered to settle!

[Anonymous Coward]

Kazaa offered vouchers for free spyware and AOL offered an unlimited supply of install CDs, but they wouldn't accept the deal.

This bitch better lose

[normuser]

If this ashat wins were all going to be paying for it.
with all the DRM, "trusted computing", and ISPs monitoring / logging your activity. Adding this to the mix would bring us to the point of either losing all our rights to a "nanny state" or having to physically fight to keep them.

Tagged 'killthebitch'.

Re:This bitch better lose

[BronsCon]

or having to physically fight to keep them
This would be the best case scenario, as we would not only keep our few, remaining, rights; we would regain all of those which we've lost in the last several years.

Many people I know, including myself, are waiting for widespread support for just this.

Re:This bitch better lose

[Lobster Quadrille]

Funny that I'm typing this thoroughly high on gin, (considering your sig), but I'm with you on this. Thomas Payne wrote that it's just common sense for the people to revolt when they no longer are in control... America is getting lazy, cause they have had very little control over the last hundred years. I hate violence, but there's a time and place for everything. The legal system won't fix America.

Unlike the previous posters to this thread..

[GeneralEmergency]

...I think this is an interesting legal strategy. This appears to me to be a tactic to grow this case exponentially in size and thus cost, complexity and duration.

Let 'em litigate this for 3 years.

I'm only surprised that they didn't assert that the plaintffs are partially liable for continuing to publish DRM free CDs long past the point when they knew that tools and techniques existed which permitted these tracks to be ripped and shared.

Hmmm...I'm still wondering if that last paragraph of mine is a joke or not.

With lawyers involved, I suppose you never can tell.

Re:Unlike the previous posters to this thread..

[Reziac]

Well, that is a good point... the suit has dire implications about ISPs and censorship (and personal irresponsibility), but AOL has the resources to potentially make the RIAA turn tail and run. And if nothing else, the spreading ripples will get attention where the RIAA suits hadn't been noticed before.

Hmm... Best case: the RIAA chucks a suit back at AOL, and they proceed to beat one another to death.

She forgot....

[toppavak]

to sue Microsoft because Windows allowed the installation of software such as Kazaa and the manufacturer of her computer for allowing the installation of a Windows that allowed the installation of Kazaa and the local power company for permitting the operation of a computer which allowed the.... oh you get the point

Re:She forgot....

[Opportunist]

Don't forget $computer_brand, for selling a machine that allows the installation of Windows, and Intel/AMD for running the code of that system. $MB_manufacturer for supporting the CPU used to run the system that allowed the violation, and of course $display_manufacturer for allowing her to see the ...

Uh... am I just advocating DRM?

Re:She forgot....

[Adambomb]

Uh... am I just advocating DRM? Pretty much, which is why I hope she loses.

The specifics shes complaining about would be TERRIBLE precedents to set.

Re:She forgot....

[Opportunist]

I feel kinda sick now. I just realized that I'd want the RIAA to actually win a case.

But ... but I don't wanna lose my geek license! It looks pretty with the Tux hologram!

Re:She forgot....

[Anonymous Coward]

While I am sure you were being funny - it's also true that this group is always against anyone (like Microsoft) requiring that code be signed by the OS vendor only. So it would be hard for this group to reconcile "well Microsoft shouldn't have allowed any old EXE to run. After all, we as a group here are against them blocking random EXE's, right? Otherwise we lose control of our machines to DRM, right?

Re:She forgot....

[fyoder]

to sue Microsoft because Windows allowed the installation of software such as Kazaa and the manufacturer of her computer for allowing the installation of a Windows that allowed the installation of Kazaa and the local power company for permitting the operation of a computer which allowed the.... oh you get the point

And don't forget the person who bought the computer in the first place and placed such a dangerous instrument in the home. They're in for a good suing. Talk about irresponsibility.

Re:She forgot....

[despisethesun]

It's like the tagline for Alien vs. Predator: "Whoever wins... we lose"

This is more interesting, though.

Re:She forgot....

[RazboiniKSS]

Her parents for those brilliant genes

RIAA should hire the wench

[Anonymous Coward]

She's obviously proved she has what it takes to work for the RIAA.

Terrible argument!!

[erroneus]

I know I'm probably being redundant here but so far it seems the best arguments are those that question the accuracy, reliability of the evidence along with the methods used in collecting it. When there is success by other parties in defending against the RIAA, other defenders should be paying attention to those successes and should use similar arguments. "Deflecting blame" rarely wins cases of any kind unless you're a politician.

All part of the master plan...

[RingDev]

1) Extend the trial
2) Sue for legal expenses
3) Gouge Elektra for $200,000 due to extra court costs due to motions
4) ...
5) Profit

Step 4 has something to do with getting the lawyer who just got a $200,000 paycheck to cut you in on the deal ;)

-Rick

Re:All part of the master plan...

[Opportunist]

Just make it 400k. If I learned anything from the trials surrounding the RIAA, then that damages needn't have anything to do with amounts charged.

Re:All part of the master plan...

[TubeSteak]

Just make it 400k. If I learned anything from the trials surrounding the RIAA, then that damages needn't have anything to do with amounts charged. Blame Congress for passing into law such excessively punative statutory penalties.

When you lose a civil case, the statutory penalty per infringement ranges from $200 to $150,000 + costs + attorney's fees.

If you decide to settle, the statutory penalty ranges from $750 to $30,000 per infringement.

That's a big stick for a copyright holder to have and it's normally a lot more than "actual damages and any additional profits of the infringer".

Confused?

[dwarfsoft]

the failure to warn by AOL and Sharman; the failure to block the downloading of such files by AOL;

So they are arguing against Net Neutrality

the improper blocking of alleged (RIAA) warning messages by AOL and Sharman;

And for Net Neutrality

and, the secretive file sharing system of and by Kazaa.

And against Intellectual Property, while this revolves around downloading somebody elses Intellectual Property. Seems like they are mightily confused about something.

Re:Confused?

[Anonymous Coward]

Hold up a second,

the improper blocking of alleged (RIAA) warning messages by AOL and Sharman; This is fairly important, if AOL screened the warning emails then that's a problem that should be addressed. Yes the RIAA sends out a ton of em, so maybe AOL got confused and blacklisted them, but still, that action has consequences.

The Kazaa people maybe, for setting up a structure or system to distribute often copyrighted works, that's a maybe, but they settled way back when for just that, so it's not that far-fetched.

Re:Confused?

[Opportunist]

Confused? No, just ignorant of the technologies used. I give them the benefit of doubt that they don't even know what they are arguing for or against, summed up it's just "We're not to blame, they all didn't keep us from doing this, so they are to blame, because we don't know how this internet thingamajig works".

Re:Confused?

[Andy_R]

Actuall, it's a brilliant win/win strategy.

Winning one "it's someone else's fault" case is enough to get the client off the hook, and they win one case if the judge comes down in favour of net neutrality, and the other one if he comes down against it.

Of course there's huge collateral damage to the legal system and the internet either way, but that's not the lawyer's responsibility...

Re:Confused?

[NewYorkCountryLawyer]

Actuall[y], it's a brilliant win/win strategy. Winning one "it's someone else's fault" case is enough to get the client off the hook, and they win one case if the judge comes down in favour of net neutrality, and the other one if he comes down against it. Of course there's huge collateral damage to the legal system and the internet either way, but that's not the lawyer's responsibility... There would be a lot more collateral damage to the internet by letting the RIAA continue to rewrite copyright law by stomping on the backs of defenseless civilians.

This way some of the big players are all in the same room. Kazaa -- the RIAA's new buddy -- is in the room. Maybe this will refresh Kazaa's recollection that when it made its own sweet deal with the RIAA it left its customers twisting in the breeze.

Kazaa has the money to defend itself. It will have its day in court. If it's innocent, it will win. But clearly Kazaa and AOL have a lot more money than the Santangelo kids do to hire lawyers and present their side of things.

This is not a new idea, by the way. It was suggested by the judge in Interscope v. Duty that this is what the Kazaa defendants should do.

Just when AOLers were starting to get some respect

[One Childish N00b]

they go and remind geeks everywhere that they are living proof that there should be a licence to use the internet. If you are incapable of preventing yourself from illegally downloading copyrighted material (whatever the RIAA do or don't do, and whether that's moral or not is irrelevant, whether we like it or not illegally downloading copyrighted material is illegal in the current climate), you really shouldn't be allowed near a computer because you're a danger to yourself.

KAZAA FORCED ME AT GUNPOINT TO DOWNLOAD BRITNEY!!!

[One Childish N00b]

AOL EXECUTIVES BROKE INTO MY HOUSE AND SODOMISED MY CAT UNTIL I PIRATED BILLY RAY CYRUS!!! OMFG!! SERIOUSLY!!! - Tell me, Have we really sunk this low?

Lameness filter encountered. Post aborted!
Reason: Don't use so many caps. It's like YELLING.

If she wins..

[mattydont]

we should just sue the internet instead, i mean with all those tubes you'd think someone would have clogged them to stop such terrible crimes being committed by now.

I disagree...

[EdBear69]

Take responsibility. Stand up and declare your rights.

Don't weasel out by blaming the other guy.

While I'm not sure what you mean by 'Stand up and declare your rights', I'll let it go and talk about weaseling for a second.

In this case, the defendant claims to have done nothing wrong and to be guilty only of the following:

• 1. owning a computer
• 2. having an aol account
• 3. allowing the computer to connect with the internet
• 4. not monitoring their computer to ensure it was not being used for illegal activity

Taken at face value, I don't see any weaseling going on. The only seemingly weasel-ish aspect is the way that the third party complaint spreads across so many defendants. This, however, is perfectly acceptable in the legal system if, again, you take the original defendant's testimony at face value.

The way I see it, Miss Santangelo is basically saying, "I didn't do it. It's not my fault. I don't know who is responsible, but it's probably one of these guys, let the court figure it out."

It's not that she's accusing aol and Sharman as much as she's saying that they had more to do with any infraction than she did.

Looking at how this looks for precedence, I'm interested to see how this turns out. We currently have laws that hold a bar liable if a patron gets a DUI on the way home. Bars serve alcohol, it's what they do. But they get in trouble if people use their product illegally. By the same token, aol supplies internet access. Should they be held completely harmless if people use their product illegally? If so, why is there a double standard between bars and ISPs?

Re:I disagree...

[Lesrahpem]

I think ISP's fall more along the lines of something like a telephone company. Does the telephone company get in trouble if you use their service to make prank calls? No, not as long as they assist the police when someone misuses their service.

Re:I disagree...

[wvmarle]

You're referring to "common carrier" status, no? This has been discussed here before, and as far as I know this has never been clearly established in USA nor in other jurisdictions (please correct me if I'm wrong here!).

One thing I do know about "common carrier" status (postal services is a good example) is that not only are they not responsible for what they are carrying, they have the obligation to carry all messages within only technical limits - e.g. weight and size for postal services, and maybe some restrictions on items like cash and dangerous goods, and in case of the telephone system obvious frequency limitations - and they are not allowed to check the content of those messages, unless asked to do so by subpoena.

The whole "net neutrality" discussion completely bypasses this "common carrier" issue. If an ISP inspects (and shapes) traffic, they are obviously not a "common carrier" anymore. Parental controls however I don't think fall in this category, as this has been explicitly asked for (and is often paid for) by the subscriber.

Re:I disagree...

[jeffasselin]

In theory, although I have seen arguments both ways, they're a "common carrier", like phone companies. As long as they're open to everyone, they can have this status. The phone company isn't responsible if you plan or operate a crime using their phone lines, just as the town isn't responsible if you use the road to flee after a bank robbery.

But as I said, this has not been clearly established, and such a status requires that they accept any business, i.e. not filter or favor certain business. If they block some illegal content, then they could be held responsible for letting some get through. This case might actually be interesting.

Re:I disagree...

[ajs]

Taken at face value, I don't see any weaseling going on. The claim that AOL should have blocked the downloads is the killer, here. That one needs to be shot down, and fast, otherwise you can kiss you nice fast Linux downloads goodbye, since ISPs will feel compelled to block all peer to peer traffic.

Re:I disagree...

[NormalVisual]

This has been discussed here before, and as far as I know this has never been clearly established in USA nor in other jurisdictions (please correct me if I'm wrong here!)

Title II of the Communications Act of 1934 dictates what constitutes a common carrier. Short answer - AT&T the phone company is a common carrier. AT&T the ISP (different company altogether) is not. There's not much practical reason for an ISP to try to claim CC status nowadays - the protections of more recent legislation (the DMCA, for instance) give most of the protections of CC status to ISPs anyway, without placing upon them the duties that real CCs bear.

I personally think that we'd benefit from ISPs having true common carrier status, but at present they don't.

Re:I disagree...

[Anonymous Coward]

As far as I know... if AOL serves me too much interwebs... I won't end up dead in a ditch in the middle of nowhere.

Re:I disagree...

[fluffy99]

Bar are being held liable if they serve you too much alcohol when it's obvious you plan to drive home. IN theory, even if you're not driving they are contributing to your public drunkenness. The idea is that they are negligent by contributing to the crime when they should know better. Now, you could also make the argument that AOL should monitor their customers to make sure they aren't attempting to perform crimes (hacking, etc) using their product. Is it negligence that they don't block access to known kiddy-porn sites?

Re:I disagree...

[Anonymous Coward]

This sounds ridiculous. So lets say you stab someone with scissors, should they be able to sue the company who made those scissors? No, because they can't control what you do with their product.

Re:I disagree...

[ZachPruckowski]

AOL owned the copyrights to the songs supposedly downloaded. AOL/TimeWarner owns both AOL and the record label involved. The claim is that AOL was a party to the download and owns the copyright. I don't think this is going to worry Verizon or Comcast or whoever, since they don't own copyrights.

Re:I disagree...

[jrumney]

Does the telephone company get in trouble if you use their service to make prank calls?

Do the telephone company's advertisements prominently claim that your prank calls will go 100x faster through their new network than they do through the old one you've been using before now?

Re:I disagree...

[DragonWriter]

I think ISP's fall more along the lines of something like a telephone company. Does the telephone company get in trouble if you use their service to make prank calls?

No, they are protected as common carriers.That's also why they have all kinds of legal obligations to let people, including competitors, use their lines in a non-discriminatory manner.

ISP's, particularly the telcos, have fought very hard, and largely successfully, not to be burdened with the obligations of common carriers when it comes to internet service. They also, of course, always claim to be still entitled to the same kind of benefits and protections that go along with common carrier status, and haven't been entirely unsuccessful at lobbying for that position, either.

You forgot

[dunezone]

The modem and network equipment manufactures between her and AOL. Might as well throw in the NIC card to while were at it.

She sort of has a point. at least on some of it.

[Eskarel]

For one, if she didn't install or knowingly use the software it's questionable whether she's responsible.

Second Kazaa as it once existed tended to at least attempt(if you didn't actively tell it not to, which if she didn't install it she didn't get a chance to choose) to share pretty much every music file on your PC. If she had a legitimate music file on her PC Kazaa would have attempted to share it with the outside world leading to infringement. This was always bad design in every program tham implemented it(it's alright in a media player, but not in a file sharing utility, it'd be like having apache automatically make all your documents available.

Thirdly the RIAA is presumably alleging that they sent warning e-mails to this girl or her parents, and the girl and/or her parents are apparently alleging that they didn't get them. The suit against the ISP means that the ISP will be required to prove whether those e-mails got through or not and wether they ever got to them in the first place. If they did block them then there's a case there, if they didn't arrive then the RIAA loses their "she knew it was wrong and kept going" angle and look more like vultures going after a little girl who didn't know what she was doing.

Her suit about the ISP blocking the files is of course bollocks and should and likely will be tossed out(presuming that the ISP wasn't offering some sort of parental filtering service at cost in which case there's a case there too).

precedent already set?

[doug141]

Wasn't this precident set when tobacco companies were sued for lung cancer?
and fast food for obesity?
and gun dealers for crime?

Re:precedent already set?

[StikyPad]

Not exactly.

1) "Big tobacco" arranged a deal where they donate X billion dollars and promote an anti-smoking campaign, and in exchange they would be protected against future lawsuits.

2 & 3) To my knowledge, a lawsuit has never been won against either fast food or guns. I believe there are now Federal protections in place for gun manufacturers.

Re:precedent already set?

[rts008]

Dig a little deeper than 2003 (when your ref's happened). There have been many cases of firearms mfg.'s being successfully sued in conjunction with shooting trials over the past several decades.

Basically, anything that SHOULD fall under common sense is being taken to civil court to avoid personal responsibility during the past several decades.

If you look at civil/liability court cases from oh, let's say 1980 onward, you will find an alarming increase in what I call 'lack of common sense/personal responsibility' cases being brought to court.

The attitude of 'it's not my fault due to X' is taking over our society like stink on shit.

You can see this attitude all throughout the posts on this article...blame AOL, Blame MS, Blame Kazzaa, Blame other users, Blame Goatse, Blame God, etc.

I hope she gets her ass handed to her on a platter over this. Kazzaa, AOL, and my intro...MS are not to blame here. She either needs to restrict her PC access to trusted users, or learn WTF...just like driving a car needs a certain minimal knowledge and responsibility to use or loan out.

Too tough on the user you say?? Balderdash...look at the amount of articles that hinge on the fact that clueless PC users cause so many problems. Until this is dealt with, this kind of shite will keep happening.

No different than the mess that 'Product Warning Labels' have been causing due to the fact that as a society ALL humans deserve to cheat the Darwin's Awards, and lower our intellect as a whole.

Re:Just when AOLers were starting to get some resp

[Opportunist]

...illegally downloading copyrighted material is illegal in the current climate...

(nitpick mode on)
Illegally doing anything is illegal, in any climate.

MOD PARENT UP!

[Anonymous Coward]

I don't care that it's +5 insightful already, mod it to +10!

Re:Just when AOLers were starting to get some resp

[One Childish N00b]

Heh, gimme a break, it's 2 in the morning here, I was only trying to clumsily shoehorn an AOL gag into being somewhat on-topic.
It's a lot harder than it looks; I tell you, I've a whole new respect for the good people of bash.org

Re:KAZAA FORCED ME AT GUNPOINT TO DOWNLOAD BRITNEY

[Anonymous Coward]

Of course. Why else would anyone waste their time downloading Britney's crap?

what should be done !!!

[Anonymous Coward]

HACK them all!!! Hack the Planet HACK the RIAA!!! SHUT them down!!

Oh and lets not forget to include...

[xednieht]

the uncle's brother's cousin's (twice removed) baby-sitter's father's dog's groomer's great grandfather who forgot to wear his jimmy cap and thus led to the conception of someone.

Whoa!!!

[Simonetta]

Someone get this girl a prune before she explodes!

Poor move.

[WK2]

This is a poor move. The record companies don't like her. Here ISP, Kazaa, and her friend is not going to like her after she drags them into a senseless lawsuit. We don't like her. Friends are helpful in this world. Screwing over everyone you can think of to weasel out of a little trouble is not the right way to make friends.

Re:Poor move.

[NewYorkCountryLawyer]

This is a poor move. The record companies don't like her. Here ISP, Kazaa, and her friend is not going to like her after she drags them into a senseless lawsuit. We don't like her. Friends are helpful in this world. Screwing over everyone you can think of to weasel out of a little trouble is not the right way to make friends. Please tell me you were kidding. Please tell me you don't think Kazaa and AOL are these kids' friends.

Kazaa, after saddling its customers with all kinds of secret malicious programs, and a program that shared files even when customers didn't know it was sharing files, made a settlement with the RIAA that made no provision whatsoever for the RIAA to stop pursing Kazaa's customers. With friends like that, who needs enemies?

Re:Poor move.

[WK2]

Please tell me you were kidding. Please tell me you don't think Kazaa and AOL are these kids' friends.

I wasn't kidding. But I don't think that Kazaa, AOL, or the recording industry was this person's friend. The person who used their computer might have been. The community was. I was only pointing out that I felt that suing everyone but the kitchen sink, and claiming that her ISP was responsible for giving her access to the internet, was a bad move.

Re:Poor move.

[NewYorkCountryLawyer]

If you'd read TFA you'd have known that as to the defendant who was a "friend" -- the kid who came in and installed it on Mrs. Santangelo's computer without her permission -- he was only sued for $1.

Re:Poor move.

[WK2]

If you'd read TFA...

Are you lost?

It's the Media

[TheVelvetFlamebait]

It's the Media. Lawsuits, being one of the more interesting aspects of life, are widely publicised, giving us a false impression of ubiquity.

Slight tangent...

[Azari]

Really the 'ISP not passing along emails' bit seems to be the only sensible part of the whole thing, since you can tell when something like Kazaa is installed either by the tray icon or the fact your computer runs like a pregnant sow :P

Aanyway. A few people have mentioned the ISP not blocking the file transfer angle and it not being the responsibility of the ISP to monitor traffic and prevent anything (as it should be, being a service provider). Now I don't know about overseas, but here in Oz, many ISPs have implemented P2P traffic throttling, which makes me wonder how large a step it is (legally) to say that a company is monitoring and reacting to the type of traffic compared to being responsible for the actual traffic itself, and thus legally obligated to do something about it.

Re:Slight tangent...

[dana340]

Aanyway. A few people have mentioned the ISP not blocking the file transfer angle and it not being the responsibility of the ISP to monitor traffic and prevent anything (as it should be, being a service provider). Now I don't know about overseas, but here in Oz, many ISPs have implemented P2P traffic throttling, which makes me wonder how large a step it is (legally) to say that a company is monitoring and reacting to the type of traffic compared to being responsible for the actual traffic itself, and thus legally obligated to do something about it.

You know, it's sad, but this is really feasible, and the majority of America under 45 will be really pissed about it, but not do anything about it... in short if this describes you (any reader) go out and make a difference!

Re:Slight tangent...

[Tuoqui]

Maybe it was spyware and viruses? Who knows they could have put spybot on there hoping it'd get rid of it all.

No, ya don't. Elektra is AOL subsidiary

[MacDork]

Looks like entrapment by AOL. Elektra sues AOL for subscriber records... oh wait, Elektra IS AOL, or was at the time. Elektra is owned by Warner music, meaning owned by Time Warner, which as everyone knows, was bought by AOL during the dotcom boom... So, new business model:

Provide internet access.
Monitor usage.
Allow users to download music freely
Profit!!! (Sue users who download AOL music. Put competitors out of business with illegal downloads)

That's just dirty... By the way, before anyone says Kazaa is pure as the driven snow, keep in mind that the Grokster case pretty firmly established that it IS their responsiblilty as far as US law is concerned to police copyright infringement on their network. Also keep in mind that Kazaa is infamous for bundling malware with their product. If Kazaa was installed, who knows what kind of backdoors were left open by their "product."

Personally, I feel sorry for the kid. Too many lawyers and greedy bastards all the way around. If the kid had stolen a physical cd, it would have been a minor issue, not years of misery and thousands of dollars in court. Whatever happened to having the punishment fit the crime?

Re:No, ya don't. Elektra is AOL subsidiary

[MousePotato]

Personally, I feel sorry for the kid. Too many lawyers and greedy bastards all the way around. If the kid had stolen a physical cd, it would have been a minor issue, not years of misery and thousands of dollars in court. Whatever happened to having the punishment fit the crime?

What's 'justice' and what happens in a court room are, unfortunately, quite often two different things.

Re:No, ya don't. Elektra is AOL subsidiary

[harl]

By the way, before anyone says Kazaa is pure as the driven snow, keep in mind that the Grokster case pretty firmly established that it IS their responsiblilty as far as US law is concerned to police copyright infringement on their network. Your statement is not correct. What Grokster states is that: "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."

The key words here are "promoting", "clear expression, and "affirmative steps". The software rights holder has to take an active role. If the software rights holder promotes their program as a method of copyright infringement they are liable. If not they're not. No where in MGM vs. Grokster does it state they have to police content.

!Infringement: Kazaa: It can be used to share files!
Infringement: Kazaa: You can download music without paying for it!

Re:No, ya don't. Elektra is AOL subsidiary

[Tombstone-f]

By the way, before anyone says Kazaa is pure as the driven snow, keep in mind that the Grokster case pretty firmly established that it IS their responsiblilty as far as US law is concerned to police copyright infringement on their network. From what I understand, all the Grokster decision said was that a file sharing network couldn't advertise the ability to get download copy-written music for free. I haven't heard anything about them having to police their network.

Re:No, ya don't. Elektra is AOL subsidiary

[NewYorkCountryLawyer]

By the way, before anyone says Kazaa is pure as the driven snow, keep in mind that the Grokster case pretty firmly established that it IS their responsiblilty as far as US law is concerned to police copyright infringement on their network. From what I understand, all the Grokster decision said was that a file sharing network couldn't advertise the ability to get download copy-written music for free. I haven't heard anything about them having to police their network. GP is totally wrong. Grokster held nothing of the kind.

You're not exactly right either.

Here's (pdf) the case. If I had to sum it up I would say that what it says about the p2p software companies is that they can be liable for their customers' copyright infringement if and only if they affirmatively induce or encourage copyright infringement.

But read the case yourself; you really should.

Re:No, ya don't. Elektra is AOL subsidiary

[MacDork]

GP is totally wrong. Grokster held nothing of the kind.

Yes, I was wrong. Totally, completely wrong.

But now... since I do value your opinion, I have to ask: Any thoughts on the point I was trying to make? Isn't AOL responsible for knowingly allowing illegal activity to occur on their network?

I Hope She Gets Sanctioned

[watchingeyes]

I hate the RIAA as much as the next guy, but for her to claim that it is AOL's responsibility to monitor and prevent illegal downloads sets a dangerous precedent. An ISP should not be doing this.

I hope the Judge dismisses her claim against AOL and sanctions her for making ridiculous claims. She's no better than the RIAA in this case.

Re:I Hope She Gets Sanctioned

[Anonymous Coward]

The thing is that AOL tries to present themselves as a family friendly company. They try to get you to believe that by using them you are in fact safe from all kinds of things. At least before 2005 when the supposed file sharing took place.

One additional thing is that AOL is the closest example to non Net Neutrality* there is. People did not like their tiered internet and moved away from AOL. I remember when AOL only allowed a certain number of connections out of their system, everyone else stayed withing the AOL world. Many did not know there was anything outside of AOL. Once people became privy to this information many moved away from AOL.

As far as I am concerned a tiered internet was attempted and failed. If people want their children to be safe then they need to go back to AOL and let them handle it. For the rest of us, we want the wild west of the internet back.

*I hate using the term Net Neutrality, so many people do not know which side to be on. I hope I used it correctly above. My definition of Net Neutrality is an open system. Nothing tiered. No one having their traffic held for ransom. I pay my access fees, the website I am visiting pays their access fees. That is that.

Re:Just when AOLers were starting to get some resp

[dana340]

I was just going to say "If you get in a car, and you crash it up because you don' t know how to drive it, are you still liable?"... An earlier post mentioned that KazAA doesn't end when you click on the close button (for real n00bs :the red 'X') that the program continues to run in the background. Thus the user tries to stop the illegal activity, but it is written to not listen you.. hmm. don't you think the blue and green "K" by your clock might mean something?

Net neutrality!

[kylehase]

If she actually wins against AOL, this could have a severe impact on Net Neutrality.

I'm already pissed at what some ISPs block. For instance, I can't email my parents through my ISP (sakura.ne.jp) because my ISP's SMTP servers IP addresses are on their ISP's (rr.com) spam blacklist. Yes, they blacklist all mail from many mail servers. The RR customers have no idea when mail gets blocked since it's blocked at the ISP level. I'm sure it's stated somewhere on their customer service website or contract but how many of their customer's actually read that. As much as I hate spam, I think it's wrong that ISPs completely block suspected spam but I digress.

Responsibility? Why start now?

[rajafarian]

If you're a believer in the Bible (which I'm not), look, you can see that people not taking responsibility for their own actions goes back a looong way. People should find better role models.

Genesis
8 Then the man and his wife heard the sound of the LORD God as he was
walking in the garden in the cool of the day, and they hid from the LORD
God among the trees of the garden.

9 But the LORD God called to the man,
"Where are you?"

10 He answered, "I heard you in the garden, and I was afraid because I
was naked; so I hid."

11 And he said, "Who told you that you were naked? Have you eaten from
the tree that I commanded you not to eat from?"

12 The man said, "The woman you put here with me. She gave me some fruit
from the tree, and I ate it."

13 Then the LORD God said to the woman, "What is this you have done?"
              The woman said, "The serpent deceived me, and I ate."

Re:Just when AOLers were starting to get some resp

[martinX]

Is that stuff running in the background? I just thought it was some icons that some programs put in so you'd have quick access to them. Seriously.

Look, I'm a Mac user by night and they make me use a PC at work and no-one has ever said "hey, these icons over here are services still running". (why is the volume control there?) and even if they did, I wouldn't expect anything untoward out of them. F'rinstance, iTunes still has a service (of sorts) running after I quit iTunes proper, but it's not at the store listening to music AFAIK.

Live and learn...

First....

[TJ_Phazerhacki]

And last time (hopefully) I ever cheer for the RIAA..... God, who can you root for here?

This is stupid.

[untaken_name]

This is about as stupid as if someone were to go and sue gun manufacturers for the way they misused the gun they bought. Good thing we don't have any of THAT going on, as well as this bullshit. Oh, no, someone broke into my house and installed crappy software when I was out of town! That's it, that's the ticket. I had NO IDEA what it was or what it did, and no idea how to remove it. I just HAD to keep using it to download nickelback crap, and they really should have stopped me from doing it. Yeah, that's the ticket.

Re:This is stupid.

[TehBrian]

This is about as stupid as if someone were to go and sue gun manufacturers for the way they misused the gun they bought. Good thing we don't have any of THAT going on, as well as this bullshit.

It took a federal law to stop cities from suing firearms manufacturers. http://en.wikipedia.org/wiki/Protection_of_Lawful_ Commerce_in_Arms_Act I don't know if any kind of law can stop people from playing the blame game.

Re:This is stupid.

[untaken_name]

I was going for irony, there...but good info. And true, it's always someone else's fault.

LOL

[Anonymous Coward]

Your UID is 938685 and you're attempting to be a UID snob? LOL

Signed,
Anonymous Coward whose logged in UID is much, much lower than yours :)

Trials OF THE FUTURE.

[Anonymous Coward]

Coming up next: Colleen Miller vs. The Big Bang.

Ms. Miller claims that her obesity was caused by the sudden existence of matter. Had there not been a Big Bang, there would not have been copious amounts of chicken wings and supersized fries for Ms. Miller to devour. Hence, the Big Bang is to blame.

Re:KAZAA FORCED ME AT GUNPOINT TO DOWNLOAD BRITNEY

[iainl]

No, we've reached the point where someone is saying "Some bloke installed Kazaa on my machine without my knowledge. I've no clue what it is, but the sneaky piece of crap is designed to serve up all my music files to the entire internet without announcing its continued existence. As far as I'm concerned, the bloody thing's a rootkit, and hardly my fault. Try suing some of these shysters"

Which sounds fine to me.

Wake up /. !

[Anonymous Coward]

Some posters are being very harsh and have neglected the important issue. What if Michelle Santangelo is cute?

Stupidity

[AkumaReloaded]

This woman should in fact be cleared of all charges simply because she used Kazaa. I mean anyone who actually uses Kazaa would be so incredibly stupid that it comes close to retardation. (As seen in Family Guy, this can be used as an excuse for almost everything) I mean there are far better applications out there for p2p use. DC++, Bittorrent, Newsgroups, FTP.

I for one use DC++ and Bittorrent which work perfectly for me. DC++ for everything, but also some rare stuff because Bittorrent largly supports new stuff that just was aired or showed in theatres. Anyways just a thought, use these applications instead of something stupid like Kazaa.

Re:Stupidity

[Anonymous Coward]

Hahaha, oh righteous nerd justice, who will you not look down on?

"You have used the wrong software and thus breached article 1337 of the basement act. Prepare to be terminated."

Re:She sort of has a point. at least on some of it

[Alsee]

it'd be like having apache automatically make all your documents available.

Gah! I wish people would stop making bad analogies.
It's more like if your car automatically tried to park in a handicap parking space.

On a slightly different note...
Thirdly the RIAA is presumably alleging that they sent warning e-mails to this girl or her parents, and the girl and/or her parents are apparently alleging that they didn't get them.

I'm just making a guess here, but no, I don't think that's it. I think the part of the counter suit about "improper blocking of alleged (RIAA) warning messages by AOL and Sharman" is about the fact that people realized that a user-to-user messaging system wasn't such a Great Idea on this kind of software, and that Kazaa completely removed the feature during one of the upgrade cycles. A user-to-user messaging system that the RIAA had hooked up to spam-blast software sending out thousands and thousands of automated legal-threat messages. I could probably check on that theory by reading the article, but this YARIAA story sounds like a boring read. So I didn't.

So if I'm not mistaken, the proper analogy for this "improper blocking of RIAA warning messages by AOL and Sharman" is like a law suit against a car manufacturer deciding not to include a CB radio in their new car models... which "blocks" any and all CB messages to new cars.

Oh... and ahh... it's like the car manufacturers sent out free new CB-less car models to everyone who had bought their older model cars. Ummmm.... and kinda like those older model cars were robotic and they automatically parked the new model car in the owners' driveway and then disassembled themselves into the garbage pails to be automatically hauled off by the garbage men.

Yeah. That's what it's like.

In any case, this part of the suit is almost as ridiculous as suing the ISP for not blocking naughty files.

-

Bullshit. You used it. You are reponsible.

[andr0meda]

Looking at how this looks for precedence, I'm interested to see how this turns out. We currently have laws that hold a bar liable if a patron gets a DUI on the way home. Bars serve alcohol, it's what they do. But they get in trouble if people use their product illegally. By the same token, aol supplies internet access. Should they be held completely harmless if people use their product illegally? If so, why is there a double standard between bars and ISPs?

That's just bullshit and you know it. You use a tool for good or bad. If you use it for good, you get tot take the credits (of course). If you use it for illegal purposes and something goes wrong, then suddenly the tool or those who provided it get blamed for it??

It's as if you are saying: everything I don't know about, I can't be held responsible for. Wrong. Make sure you do know what is in the EULA you pressed OK on, otherwise, YOU are in the wrong. This is a file sharing app, and you are sharing files, possibly copyrighted stuff. Get a grip on your life and act responsibly.

That said, fuck the RIAA and their cash cow copyright interpretation.

I think telco's are currently holding the ONLY key to a "free" society, and it should stay that way. Telelphone operators are (ab)used to harass people's life's, all in the "best interest" of the system. Same goes for newspapers and any other media outlet. But the Internet is currently the only place where every logged on person is essentially equal, where the human act and the digital tool are separated in terms of responsibility and execution. Of course any lawyer is going to try and mess up that factual balance, because that truth stands in the way of a profitable freak-law society.

This world, since ancient history, aims to reduce energy spend to come to "freedom". You can try to derail this temporarily with incorrect laws and political rubbish like in the parent post, but it's going to be useless in the end.

Nothing to do with Net neutrality!

[Anonymous Coward]

Net neutrality is about dinging Google http traffic because Google is making money from it. Net newutrality isn't about blocking p2p with Google and everyone else.

If my ISP blocks ALL VOIP then that's neutral. If they block all VOIP *apart from their own* then that's not neutral. And that scenario is what net neutrality is trying to keep from happening.

So all of you stop misrepresenting the net neutrality argument.

Re:Responsibility? Why start now?

[Anonymous Coward]

And that's just the bible, think of potential quotes from all the millions of other fictional works out there.

Bigger issue at hand

[doomedpr0digy]

What if the judge finds Kazaa and AOL responsible? Can you imagine what a mess that will create with ISPs like AOL having to filter EVERYTHING that comes through their pipes? It would kill the internet...at least the wat I use it... This biatch isn't doing anyone any favors by taking this route.

Re:Bigger issue at hand

[Anonymous Coward]

I don't see what the issue is. If you RTFA, and you bother reading some of the background in the case (something I see very few people here have done) you will come to a rather interesting point.

AOL is being held responsible because the defendant was allegedly using their parental controls. They are also being held responsible because allegedly, the RIAA sent e-mail asking to cease and it was blocked at the ISP level (as noted higher up on the page).

Kazaa is being held responsible because the DEFENDANT didn't install Kazaa, and as stated, its an icon and does rather strange things if you do not install it correctly (such as indexing ALL your music files to share -- something someone with no involvement in the computer would do to up their share score). As well, there was a business deal between the RIAA and Kazaa in the great ruling about how they should monitor their own network. There is a little fingerpointing to the tune of how the RIAA specifically doesn't want Kazaa in the case and this may be why.

The person who installed Kazaa is being called in to be held responsible. What is the world coming to with *that*?

As for ISP monitoring everything that goes through their pipes? Comcast, the great wonderful beast that it is, states that they already do it to enhance the quality of their service. As I have only 1 ISP to chose from (Comcast or Dial-Up, no real choice) I read their EULA from top to bottom. Random searches of your data traffic is only a minor thing that they do. Personally, I think it is quite stupid, as it completely negates their ability to claim Safe Harbor... which mind you if AOL was supposed to be monitoring (or states that it does) they are VERY much as responsible for not doing anything. They made their bed, they should get to sleep on it. Can't have it both ways, searching traffic but then claiming ignorance.

The fact the US ISP situation is completely fsck'd at the moment is part of the reason all this crap is going on. They'll bend over backwards for fellow corporate interest, but refuse to answer questions from their own customers or respond to their wishes.

The best part about this case is that the RIAA is now being forced to essentially go after its own clients because of how they manage their ISP branch.

-solaxyfox

supersize those fries, fatass

[kersten78]

This is no different than fat people suing McDonald's for making them fat... who forced you to eat the f'n cheesburger?!? It's pretty sure sign the legal system has gone awry when personal accountability is forgotten--how long until we see firearm manufacturers charged with murder?

Why stop there?

[nurb432]

Why not sue Microsoft, the cable company, hell even the power company for being negligent for providing power for this truly stupid user to operate a PC at all.

Geesh. I assume they will sue Ford if they ever get hit while driving a ford vehicle too.

Re:Just when AOLers were starting to get some resp

[dana340]

Time to get really freaky, there are other things that hide themselves too. At work try pressing ctrl+alt+del, go to the task manager (assuming it's not locked out) and go to processes..., yeah, iTunes runs on a PC all the time. Now if you're really brave press windows key +L and take a look at all the security features built into Windows. So now all of you KaZaa users, see if yu can find out how many extra processes are running on your computer. AOL users do the same, and if you run both, it's kinda surprising your computer still runs..... That's it: She can blame the computer manufacturer for building a computer that runs the two at the same time.

EULAs

[Nerdposeur]

EULAs and Terms of Service are, in my opinion, widely abused. "We're not responsible if we destroy your computer, you can't object if our product doesn't work, and we can change our terms of service anytime without telling you and there's nothing you can do about it."

"Agreements" like that - which are mandatory to use most software and a lot of other services these days - are a mockery of real trust-based business relationships. Not to mention that their length and complexity makes them incomprehensible, or at least annoying to slog through. Most people don't even know what they've agreed to, and even though people *should* read them before clicking "yes," I think companies purposefully make them too long to bother with.

Unless I'm feeling combative, I usually just assume I'm getting shortchanged, sigh, and click "I agree."

Someone's at fault

[DeanFox]

I'm all for taking responsibility for ones actions. There's nothing that bothers me more than someone falling from a ladder and suing the manufacturer. I'm also for protecting the innocent.

If in fact all this was taking place behind her back and without her knowledge I feel she has every right blaming whomever. Blame the people who wrote the software. Blame the person who installed it. Blame the ISP for not blocking it. She's entitled to an aggressive defence. If she didn't do it, had no idea it was happening then go right ahead and blame everyone else. It seems to me all she's saying is if someone's at fault, it's not me, let's find out who.

...Seems reasonable to me.

-[d]-

Re:Someone's at fault

[NewYorkCountryLawyer]

'm all for taking responsibility for ones actions. There's nothing that bothers me more than someone falling from a ladder and suing the manufacturer. I'm also for protecting the innocent. If in fact all this was taking place behind her back and without her knowledge I feel she has every right blaming whomever. Blame the people who wrote the software. Blame the person who installed it. Blame the ISP for not blocking it. She's entitled to an aggressive defence. If she didn't do it, had no idea it was happening then go right ahead and blame everyone else. It seems to me all she's saying is if someone's at fault, it's not me, let's find out who. ...Seems reasonable to me. Glad to see someone who actually reads TFA.

Re:Someone's at fault

[Tuoqui]

I'm all for taking responsibility for ones actions. There's nothing that bothers me more than someone falling from a ladder and suing the manufacturer. I'm also for protecting the innocent.

What if the ladder was defective? Shoddy workmanship on it? Bolts Loose? and so on...

It isnt always clear cut. Though maybe this person is a plant by the ISPs in order to you know... force the country to their side on the net neutrality debate.

Strawman, or misunderstanding of IP

[Magic5Ball]

> If there wasn't any copyright law to violate, then we could copy and communicate whatever we please. No one would get hurt. All the supposed damages from copyright violations are hypothetical.

See O'Reilly Media, Inc. whose profits on earlier copyrighted works allowed them to expand their scope to the point where profits from protected later works allowed them to re-issue their earlier works to the public for free.

> People dying because life saving medical techniques, in addition to all the other delays, are being held up until publication

"[A]ll the other delays" before publication are in large part review, fact-checking and making sure that the material is easily understood by others.

> and registering of copyrights and the making of some determination about the patentability.

Patents are NOT copyrights. Practices and techniques would almost certainly be protected by patents rather than copyrights. Also, copyright would protect your particular description of a technique, but neither a copyright nor patent would prevent anyone else from also describing that technique.

> Doctors discouraged from discussing ideas among themselves for fear of letting slip something that could become "valuable" intellectual property.

Because the medical profession is like any other, where egos and careers need to be boosted.

> Publicly funded research being locked up under copyright in very expensive, privately held journals ($10 or more for a 10 page article?!).

$1 per page _FOR A HARD COPY REPRINT_ is not a significant barrier to entry for most entities who can afford the $100,000s worth of kit to make use of and extend the research. Most researchers subscribe to journals of interest through their institutions, which reduces the cost and also provides access to the journals' electronic archives.

> And not being indexed thanks to the absurdities of trying to figure out appropriate fees for and legalities of such usages (witness the troubles Google Book Search has had).

PubMed is free to search and indexes the vast majority of human life sciences articles. Abstracts for all published articles in journals of repute are free to search, and published and indexed very widely. You may argue that the quality of abstracts has been in decline recently due to keyword stuffing, or that the 10-20 searchable fields of metadata for each article are insufficient, but those are not copyright issues.

> Or crucial details kept quiet for fear of someone popping up who smells a chance to score off a lawsuit or the threat of a lawsuit.

I don't understand your point here. I think you're trying to generate a tort out of plagiarism under copyright, but in the reputable academic and scientific community of which you speak, there are much more effective social and professional mechanisms. See Hwang Woo-suk re: stem cells.

> Or being bought, "NDAd", and buried by some organization that wants to eliminate some competition.

NDAs tend to protect trade secrets, a different class of "intellectual property". Your organization's security and HR practices are close to woefully broken if the organization is resorting to a claim of copyright infringement to prevent secret sauce from leaking. Also, you can't compel competition to sign NDAs under regular circumstances.

> Even if doctors have the money (and they surely do) to buy the articles, they can't learn of the existence of relevant research because they can't search it, or discuss their work with their fellows.

Doctors can and do visit http://www.ncbi.nlm.nih.gov/sites/entrez?db=pubmed just as easily as the rest of us to find new articles, and they have the ability to read. Asshole doctors who don't share because of career or ego are not an issue resolvable through copyright reform.

> Maybe copyright is hypothetically keeping artists from starving. Copyright is also hypothetically ki

Re:Strawman, or misunderstanding of IP

[bzipitidoo]

Well, I'm commenting on intellectual property in general. Tried to stay focused on copyright, but it's difficult not to drift to patents. Anyway, the distinctions are artificial. Both are about putting control of information into gatekeepers' hands.

O'Reilly is pretty cool. But they're near one extreme in their use of copyright. The MAFIAA is near the other extreme. Most organizations are somewhere in the middle, keeping everything locked up, but not wasting effort on hundreds of lawsuits as the MAFIAA does. Copyright wouldn't be so onerous if people would stop interpreting it to the extremes. They could stop fearing that every unauthorized copy = lost profits, and stop setting their prices based solely on what their almost certainly wrong projections of the maximum that potential customers are willing to pay, rather than on what it really cost them to produce, and stop it with the draconian efforts to extract fees for every individual use. But it is copyright that has engendered this mentality, that has given the impression that songs and writings are things that can be owned, bought, mass produced and sold by the unit, and stolen.

Doctors discouraged from discussing ideas among themselves for fear of letting slip something that could become "valuable" intellectual property.

Because the medical profession is like any other, where egos and careers need to be boosted.

How does withholding info boost egos and careers? Should be just the opposite. More publication = more recognition.

$1 per page _FOR A HARD COPY REPRINT_ is not a significant barrier

Yes, actually, that IS a significant barrier. That's a lot of money. As one who has paid that kind of money a handful of times, only to discover too often that the article was not relevant after all, or was much weaker and less interesting than the abstract made it sound, I quickly realized the folly of doing research in that fashion. (You could argue I was dumb for paying even once, but when in a hurry...) A pity I couldn't get a refund, but that's just another problem with selling info. Fundamentally unrefundable, because it can't really be returned. Your comment about "keyword stuffing" is spot on. And, why the emphasis on hard copy? They want $10 even if you only download it. I think you've fallen for the technique of disguising how expensive something really is by quoting a small price for a small unit, much like all those things that are marketed as "only pennies per day!"

Or crucial details kept quiet for fear of someone popping up who smells a chance to score off a lawsuit or the threat of a lawsuit.

I don't understand your point here. I think you're trying to generate a tort out of plagiarism under copyright, but in the reputable academic and scientific community of which you speak, there are much more effective social and professional mechanisms. See Hwang Woo-suk re: stem cells.

Ok, I should clarify the fear of a lawsuit is only one motivation. Covering up bogus techniques and data is certainly another motivation, but that one is not related to IP. What I'm talking about are a certain sort of published paper that most often is corporate sponsored. These papers talk all around some wonderful discovery, and don't provide enough information for others to reproduce the results. This serves several purposes, one of which is avoiding lawsuits which could conceivably be over copyright, but is much more likely to be over patents. If no one can figure out exactly what you did and how, they won't be able to figure out whether their patent was violated, right? That's what I meant. Chilling effects. Yes, one of the things that can be hidden by a cover up is plagiarism. Another purpose served is of course keeping your trade secrets secret. So the point of publishing gets warped from advancing science into advertising stuff without "giving" it away. You run the risk of being ignored but in the

Re:Strawman, or misunderstanding of IP

[Magic5Ball]

Your position seems... conflicted.

First, on the one hand, you state that Scientists can starve as far as journal publishers are concerned, on the other, you state that Reviewers, too, get nothing, with respect to clearing papers for publications. You also ask "If no one can figure out exactly what you did and how, they won't be able to figure out whether their patent was violated, right?" So, what motivation would unpaid reviewers have to greenlight faulty publications, when a significant part of their role is to ensure reproducibility of results?

Second, you correctly state "More publication = more recognition" and a main thrust of your argument that copyrights and patents provides the owners with exclusivity to information. And yet you ask "How does withholding info boost egos and careers?" Being the leader in a research field translates into grants and funding. Sharing your information too openly risks competing labs becoming more successful. As with the music publishers, it comes down to money.

Third, I'm still confused about your trade secrets argument. Why would an organization want to publish something they want to keep secret in the first place? And what do paid placement articles and journals have to do with faults in the copyright regime?

Finally, you're right. I don't pay $10 per page. I pay close to nothing because I can access almost every article ever published through inter-library loans at the local university for the cost of photocopies and delivery. The average researcher with some kind of university degree can also access this service from their almar mater for the low, low price of approximately $25 per year for the cost of maintaining the library account. In many cities of significant size, you might even be able to walk to the local university library, find the articles on-line or in the print archives, and print them for $0.05 per page. Yes, this sucks for the three people in the world conducting pioneering research, in the middle of nowhere, without anyone on their team with a university degree, without access to colleagues in the field with access to a university, and without an extra $2,000 a year to spare, but that's not a corner case I'm too concerned about since the solution is as simple as finding a friend.

Re:Strawman, or misunderstanding of IP

[bzipitidoo]

First, on the one hand, you state that Scientists can starve as far as journal publishers are concerned, on the other, you state that Reviewers, too, get nothing, with respect to clearing papers for publications. Reviewers are the scientist's peers, that is, more scientists. The journal doesn't do any review work themselves, they simply pass on scientist X's work to scientists Y and Z for review. That's why the term is often expanded to "peer reviewed". And, none of those scientists are paid anything by the journal.

So, what motivation would unpaid reviewers have to greenlight faulty publications, when a significant part of their role is to ensure reproducibility of results? Same motivation as anyone else who could use a little extra on the side. AKA bribes.

Sharing your information too openly risks competing labs becoming more successful. Is that really true? Sad for those who feel that way. And if so, strikes me as a fault with the system, both for failing to credit the correct people and for providing motivation to engage in dirty competition. There are more than enough problems out there, no need to fight over them.

Why would an organization want to publish something they want to keep secret in the first place? They want it both ways. They want recognition for discovering something. And they want to be the gatekeepers of what they've discovered. Tricky to find the balance where enough is revealed to persuade reviewers to greenlight it and get the recognition, but not so much as to enable anyone to gain the benefits without paying their tolls. Take away the tollgate, and the motivation for this is much reduced.

All those ways of not paying ridiculous fees for articles are finesses of the system. Indicates the system is broken. Shouldn't the system be reformed or replaced, rather than always worked around and beaten?

Re:The defective Ladder

[Anonymous Coward]

Allow me to indulge in an anecdote:

One of my grandfathers worked in the Seattle shipyards long years ago. At one point, he was told to use a particular ladder for some task. Safety conscious, he examined the ladder first, and discovered it had but one nail per rung.

He called the shop steward over and complained about it as unsafe, and asked to have the shop carpenter fix it. The shop steward told him to use the ladder anyway. He refused, and someone else was given the task.

Sure enough, a short while later, someone using that very same ladder fell off because of the faulty rungs.

The shop's carpenter was over, working on the ladder before the guy had arrived at the infirmary.

The repairs weren't made to protect future users of the ladder. They were made so that the accident could be blamed on the victim instead of the shop.

Do you think Kazaa's changes were to benefit the *users*? Do you really?

you cant ever be responsible for yourself

[EdelFactor19]

sure, blaim someone else. Clearly it is AOL's fault that you were able to download some file on the internet.. Are you kidding me. This is absurd. AOL and Kazaa have no such responsibility. You are using them at will to access the INTERNET. AOL is not hosting the internet, nor is KAZAA. If you download something that is illegal for you to have thats your problem.. What's next sue the car makers because they can accelerate to speeds above the speed limit on a given road? It's the same point, the question of whether or not the file can be legally downloaded by you is not a simple trivial question. If you own the CD for example you have the right to download it... The person uploading MOST LIKELY does not have the right to upload it, but you can download it. That is fair use. They can't know the scenario without far too much info, which is why in most cases they go after uploaders rather than downloaders.
The parallel? OK you are driving your shiny sports car on a 25 mph street. The car/car maker is supposed to know what street you are on so that they can force the car not to allow you to speed? I think not.

I'm not a fan of the RIAA legal fest of them suing everyone. On a large level I disagree with it, however if you get caught it sucks to be you don't go making excuses. You know the risks... Do you sue the police / parents / school for allowing you to purchase drugs or commit illegal act (on school grounds?)

This is the most retarted thing I've ever had in the continual decline of any personal responsibility. There isn't any entrapment involved. AOL did not force or entice you in any way to perform illegal acts. Perhaps if they themselves were hosting the material on their site I could see it.. But you are trying to have them police the INTERNET which is a global entity which is not bound by any one groups laws everywhere.

What scares me is that this is going to get through which will lead to a MASS CENSORSHIP of the internet and preventing access to anything.... You don't like AOL don't use them.

Secondly, no one forced you to launch the application but your

Elektra==AOL. You're missing the point!!

[MacDork]

Could you guys stop nitpicking the Grokster thing for a minute and realize the point I'm trying to make here? AOL is not liable for illegal activity on their network because they hide behind common carrier rules that say they aren't liable as long as they are not monitoring their traffic. Well, in this case, they obviously were monitoring their traffic. They're trying to play both sides of the law by pretending to be two different companies: Elektra Records and AOL Time Warner.

Well, since AOL owns Elektra, it stands to reason that Elektra's monitoring of internet traffic voids AOL's common carrier status. AOL becomes liable for the illegal downloads, therefore, AOL should sue itself. When they became aware of the illegal activity on that IP they became responsible for that illegal activity. They should have blocked access to the files, ports, or simply terminated the account.

This opens up a whole can of whoop ass on AOL. Do you think all the music traded was copyright by Elektra Records alone? Hell no!! Every record company out there should be suing AOL's ass off right now because they voided their common carrier protections.

Old faulty arguments

[Mondor]

Guns don't kill, people do. You can't blame Walther for making a gun you've used to shut poor bastard down. You can't blame local arms dealer for legally selling you that gun. Neither you can blame Bruce Willis for showing you how to use it.

Judge won't blame AOL because this will lead to total control of end-user activity by ISPs, judge won't blame PC manufacturer because then millions of new customers will have to sign stupid oaths that they won't use it for illegal purposes...

However, what this woman showed to us, is how laughable claims of RIAA are. Because she just a little bit extended the chain of RIAA arguments. RIAA claims you are responsible for content downloaded using your equipment. This is the same BS as AOL/IBM/General Electric are responsible for you using your equipment for whatever purpose they declare is wrong.