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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.""
Take responsibility. Stand up and declare your rights.
Don't weasel out by blaming the other guy.
How we know is more important than what we know.
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?
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.
Message contains 1 attachment: spam.gif
No, AOL should not block files that I am downloading at all.
Under the influence of Post-Cyberpunk Gonzo Journalism
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.
REM Old programmers don't die. They just GOSUB without RETURN.
1 "End User License Agreement," a contract of adhesion, abominably long, written in tiny print, which no one reads.
The real "Libtards" are the Libertarians!
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.
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.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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.
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
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
She's obviously proved she has what it takes to work for the RIAA.
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
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
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.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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:
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?
I'm not an actor, but I play one on TV...
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).
Wasn't this precident set when tobacco companies were sued for lung cancer?
and fast food for obesity?
and gun dealers for crime?
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".
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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.
APK quotes people (including myself) without context and should not be trusted. Just thought you should know.
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.
Hope is the currency of fools
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.
What changed under Obama? Nothing Good
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?
Interestingly enough, thats actually more (18 cents) than an artist gets per song.
The RIAA, record companies and their distributors get the rest.
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.
http://watching-eyes.blogspot.com/
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.
http://xkcd.com/386/
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.
Henry VI, Part 2. Act IV, Sc. ii. "First thing we do..."
Development is programmable; Discovery is not programmable. (Fuller)
> 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
There are 1.1... kinds of people.
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.