Rochester Judge Holds RIAA Evidence Insufficient

NewYorkCountryLawyer writes "Judge David G. Larimer, presiding in Rochester, New York, has denied an RIAA application for default judgment on the ground that the RIAA's evidence was insufficient, in that it contained no details of actual downloads or distributions, and no sufficient evidence that defendant was in fact Kazaa user 'heavyjeffmc@KaZaA.' The decision (PDF) concluded that 'there are significant issues of fact regarding the identification of the defendant from his alleged "online media distribution system" username.' (In case you're unfamiliar with the term 'online media distribution system,' that's because it is a term the RIAA coined 4 years ago to describe p2p file sharing accounts in its lawsuits; the term is not known to have been used by anyone else anywhere else.) In August a similar RIAA default judgment motion was denied on the ground that the pleadings failed to allege sufficient factual details supporting a claim of copyright infringement, in a San Diego, California, case, Interscope v. Rodriguez."

Comments

Good news for the defendant

[DrXym]

Heavy Jeff is said to be delighted at the ruling.

Re:Good news for the defendant

[Timesprout]

He aint heavy, he's my filesharer.

Re:Good news for the defendant

[Anonymous Coward]

There's an 85.7% correspondence between your reply and a 1969 song title.
Expect to be contacted by our lawyers shortly.

The RIAA.

Re:Good news for the defendant

[multipartmixed]

Bah.

The road is long, with many a winding turn.. that leads to who knows where. I mean, to the MAFIAA actually winning that.

Yet another "not liable by technicality"

[SamP2]

Decided by question of fact, not question of law. Instead of "not liable in principle" it's "not liable because they couldn't prove it". Judge's favorite way of avoiding responsibility for a legal precedent for hundreds of years.

But at least it shows you why choosing a judge in such cases is a much better option for the defendant than a trial by jury - technicalities count, precisely for the reason that judges have a vested interest in maintaining the status quo, while juries prefer to take the big-bang approach.

Re:Yet another "not liable by technicality"

[Rogerborg]

What on earth are you jabbering on about? In an adversarial system, it's the prosecution or litigant's job to "prove" the allegation. Where in any statute can I find a reference to conviction on "principle"?

Re:Yet another "not liable by technicality"

[Anonymous Coward]

In an adversarial system, it's the prosecution or litigant's job to "prove" the allegation. Where in any statute can I find a reference to conviction on "principle"?

But juries are more likely to rule on "feeling" than on the basis of what is said in a statute

Re:Yet another "not liable by technicality"

[rking]

Decided by question of fact, not question of law. Instead of "not liable in principle" it's "not liable because they couldn't prove it". You're turning the word "technicality" on its head. Not finding someone liable (yet) unless the case against them has been made is the very core of the system. It's the whole point of the proceedings. It's as far from being a technicality as anything could be.

Re:Yet another "not liable by technicality"

[speaker of the truth]

When the chances of someone being a filesharer is greater then 50% if someone is chosen at random, it becomes difficult to celebrate this person's innocence.

Re:Yet another "not liable by technicality"

[rking]

When the chances of someone being a filesharer is greater then 50% if someone is chosen at random, it becomes difficult to celebrate this person's innocence. I can't even see how that's relevant. I've no idea whether they should be liable or not. Apparently the judge doesn't have enough information to make that decision either. So the case goes on. This is how it should be. The RIAA will have their chance to prove liability and the defendant has the chance to refute it (though so far the defendant doesn't seem to be taking that opportunity, which does not bode well for them).

Re:Yet another "not liable by technicality"

[speaker of the truth]

If they're found to have used a p2p program with the copyrighted material and still aren't found liable. This means that the law says that illegally distributing people's copyrighted content for free isn't something that companies should be able to sue you for.

However if he's found not liable because the RIAA couldn't prove he used the p2p program when everyone in court knows he did it then that's a bad thing, because he's getting away on a technicality. It'd be like having on trial being found not guilty because the state couldn't prove it. That's something that leaves everyone dissatisfied, except for the criminals of course.

Re:Yet another "not liable by technicality"

[speaker of the truth]

It'd be like having on trial being found not guilty because the state couldn't prove it. It should read:

It'd be like having [insert person here who has done many criminal and despicable things] on trial being found not guilty because the state couldn't prove it. That and someone who has pirated many things found not liable because the RIAA couldn't prove it, both leave everyone dissatisfied. It doesn't mean they're not at fault. It means they got away with it this time. Either the law should recognize that sharing music over p2p programs without the copyright holder's permission is legal or people should stop doing it. Having the law say its illegal and people getting away with it on technicalities, that isn't good for anyone.

Re:Yet another "not liable by technicality"

[rking]

It'd be like having [insert person here who has done many criminal and despicable things] on trial being found not guilty because the state couldn't prove it. Infinitely better than having someone on trial who couldn't be shown to have done terrible things being nevertheless convicted on the basis that 'we just know you did it'.

Having the law say its illegal and people getting away with it on technicalities, that isn't good for anyone. Again, it's not a technicality. And having the law say things are illegal but that we'll only punish people who can be proved to have done them is a very good thing indeed. Sometimes it will lead to unsatisfactory results(again, infinitely better than the results of the alternative), but it hasn't here.

You seem to be proceeding a. on the assumption that the defendant actually did infringe on the copyrights, which we don't know, and b. as if the judge had actually ruled the defendant not liable, which hasn't happened.

Re:Yet another "not liable by technicality"

[speaker of the truth]

Infinitely better than having someone on trial who couldn't be shown to have done terrible things being nevertheless convicted on the basis that 'we just know you did it'. Right, but still hardly something worth celebrating over, as many here at slashdot do.

a. on the assumption that the defendant actually did infringe on the copyrights Yes. As a human being I'm able to go with things such as common sense, common knowledge, reality and my gut unlike a court of law which has to find things on either a preponderance of evidence or beyond reasonable doubt. Are you truly saying you think this person hasn't shared music illegally over p2p?

Re:Yet another "not liable by technicality"

[ZachPruckowski]

What on earth are you jabbering on about? In an adversarial system, it's the prosecution or litigant's job to "prove" the allegation. Where in any statute can I find a reference to conviction on "principle"?

He means that the judge found him not liable because of insufficient evidence, not because the judge thought that filesharing shouldn't result in lawsuits or that the label's case was tainted or something.

If the judge had said "non-commercial infringement is not something you can sue over" or if he had said "your tactics to collect this evidence were illegal", then the case would get thrown out, and other judges would be given ammo to do the same thing. In this instance, it was a decision about a specific set of facts which are non-generalizable.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

No, we're saying that the RIAA has no evidence that this particular person was engaged in copyright infringement. That's... you know... the whole point of a legal system. You need to have evidence. Since the policy of the US is theoretically "innocent until proven guilty" then, according to the law, he is to be handled as though he is innocent of the crime.

And if you feel otherwise, I hope you never get called for jury duty.

Re:Yet another "not liable by technicality"

[rking]

Are you truly saying you think this person hasn't shared music illegally over p2p? I am truly saying that I don't know, and have no opinion, on whether they have or not. I'm guessing you're basing your opinion on him having been accused and on his not having appeared to defend himself? Fair enough, but it doesn't seem much to go on to me.

I do think it's a good thing that the judge isn't willing to grant a default judgment (yet) without anything more to go on than that. I think it's a good thing that the RIAA will have the opportunity to bring evidence to support their claim and I think it's a good thing that the defendant has, and has had, the chance to defend himself. I see plenty of good to celebrate, though hopefully the sort of good that is quietly happening all the time and isn't particularly remarkable to this case.

Re:Yet another "not liable by technicality"

[GodInHell]

Yes. As a human being I'm able to go with things such as common sense, common knowledge, reality and my gut unlike a court of law which has to find things on either a preponderance of evidence or beyond reasonable doubt. Are you truly saying you think this person hasn't shared music illegally over p2p? I'm not sure where you get the idea that "preponderance of the evidence" and "by looking at the evidence and going where my gutt tells me" aren't effectively the exact same thing. . . the judge can't peel back the layers of time to look at what really happened to see if the plaintiff has found 51% of the proof available.. he looks at what's been presented and then issues a ruling based on what he *feels* has been proven. That's why there's an appeal system - because judges often *feel* in ridiculous or plainly erroneous ways.

Now, the second question - has he done something Illegal - goes to the root of what the article is about. Since this is a question of law ruling - not a ruling on the facts - the judge is addressing EXACTLY that point. The Judge's answer was that there would need to be SOME proof this guy actually shared a file. Not someone using his account or his connection - but him. You need to show a tanglible link - some evidence that the defendant cannot counter with evidence to the contrary - that supports your position.

Now.. I hear you saying - but that's what I mean by "my gut" - the judge can't just look at the account name - see a guy named jeff - and say "you're guilty." The reason that is the case is that this is NOT the final disposition of the trial. This was RIAA requesting that the trial be ended now in their favor. A judgement before the jury reaches a conclusion on the evidence. In federal court there must be *no* relevant questions of fact left to be decided to support their ruling. This just forces RIAA to go through more of the trial - possibly even allowing a jury to hear the evidence and rule on their gutt. (Imagine, implementing the system our founder's evisioned!?)

And yes, your "feeling in your gutt" would be applicable if you were a juror and had listend to all the evidence - because it's a civil case, and the purden of proof is preponderance of the evidence.

-GiH

Re:Yet another "not liable by technicality"

[speaker of the truth]

The Judge's answer was that there would need to be SOME proof this guy actually shared a file. Not someone using his account or his connection - but him. You need to show a tanglible link - some evidence that the defendant cannot counter with evidence to the contrary - that supports your position. Which means little more then people are able to break the law until you get caught. And people here celebrate this as if its a good thing.

Re:Yet another "not liable by technicality"

[ScrewMaster]

Are you truly saying you think this person hasn't shared music illegally over p2p?

Who knows. Who cares? Maybe he shared his entire MP3 collection but you see, that isn't the issue. This is about the methods the RIAA uses to determine if a particular individual is guilty of copyright infringement. That's been the sticking point all along, and the reason so many knowledgeable Slashdotters are against those people. Does modern copyright need major reform? Yes. Does that change the fact that it's the current law of the land? Nope. Nobody really argues that around here. Most of us do, it appears, believe that people should be judged guilty based upon actual evidence, not gut feelings, and not some attack lawyer's manufactured "proof." Nor should we be subject to the music industry's need to make examples out of us, regardless of our actual guilt. Don't excuse the RIAA's behavior: these are a bunch of bad dudes and they really need to have the shit kicked out of them (ah, in the legal sense, of course.)

Let's face it, the RIAA's "evidence" (and I use the term loosely) appears to have been deemed insufficient. It's about goddamned time! Seems to me the judge did the right thing: he told them to come back when they could prove it, which is something that I wish more judges had been doing the past few years. What, you mean their "evidence" is too weak? Won't hold up in court? Gee, that's too bad. Good thing we have judges and laws I guess, to help us sort this stuff out.

RIAA attorneys have been getting away with a lot of questionable proceedings (and outright lying to the court, any court) and I'm hoping maybe the judiciary is finally catching on. That's the only way we'll put a stop to this.

Re:Yet another "not liable by technicality"

[jbengt]

"Decided by question of fact, not question of law."

Nothing has been decided except the judge's decision to not decide until an actual trial, or if the defendent continues to not respond, a hearing. Nobody has been found liable or not liable yet, neither in prinipcle nor because of proof or lack of proof.

This is about a motion for default judgement. By law, only questions of law can be decided by before a trial; facts, except uncontested facts, have to be decided by the finder of fact, usually the jury. (But, as you say, often it's better to have a bench trial. A good judge tends to be less emotional and more fact-based than a jury.)

The judge has ruled that the facts presented in the complaint, though uncontested by default and so taken as true, are, as a matter of law, insufficient to conclude a default judgement.

IANAL, YMMV, RTFA, etc. etc.

Re:Yet another "not liable by technicality"

[iamwahoo2]

Wow...

How could everyone in court know anything that has not been proven? The defendant "getting away" is not a bad thing. This is a good thing, and it is certainly not a technicality.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

Again, the assumption that the person is more likely than not to have committed the infringement is the part you are failing on. If the RIAA cannot prove that this person committed a alleged offense based on real evidence presented (not just a gut feel) the court system has no choice in its duty to find in favor of the defendant. This is in fact a good thing -- Even if the person infringed. This is a protection of everyone's rights that requires a plaintiff to present evidence before finding in their favor. This isn't a technicality. This is a judge, analyzing the evidence and saying, there is not enough data here to support a default judgment.

I mean if we were to apply a similar (not exact, but still has to do with the court system) situation (this is /. after all). Take driving. (Oh no, the dreaded car analogy) A large portion of the general population has committed traffic offenses (speeding, not coming to a complete stop at a stop sign, not using a blinker to change lanes, etc, etc, etc.). The police can issue a citation to a random person and say we know you are guilty, but a judge/jury has a duty to analyze the evidence and make sure the offense happened in the way the police say it happened, and by the person they have identified.

In this case, the judge is saying, that they didn't provide evidence identifying the user was the person operating KaZaA and that they didn't provide a time frame that the offense allegedly happened.

I think the bigger source of celebration is that a judge is applying scrutiny to the evidence being presented rather than just accepting what the RIAA says as proof.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

No, it means that the RIAA can't just walk into a courtroom with a defendant, throw a bunch of papers on the judge's bench, then say, "He's clearly guilty your honor, let's just rule in our favor, wrap this thing up, and hit the golf course." It means that the judge says, "This evidence might be contestable, so I'm going to actually let this thing go to trial, where you present your evidence and the defendant gets to try and counter it."

So yes, we do celebrate this as a good thing, because it means the judges aren't just taking the RIAA's word as gospel truth just because they're the RIAA. Which is as it should be.

Re:Yet another "not liable by technicality"

[NoOneInParticular]

Yes, and your preferred mode of operating law in a country is? Convict people *before* they break the law? Don't worry, happy days are coming your way.

Re:Yet another "not liable by technicality"

[Paradise Pete]

Are you truly saying you think this person hasn't shared music illegally over p2p?

Be sure to tune into next week's exciting episode, when sheriff Speaker of the Truth rides into town and locks up people who "surely must have done something wrong sometime."

Re:Yet another "not liable by technicality"

[speaker of the truth]

Well I prefer not to celebrate people breaking the law and getting away with it. Different strokes for different folks I guess.

Re:Yet another "not liable by technicality"

[Dun Malg]

Decided by question of fact, not question of law. Instead of "not liable in principle" it's "not liable because they couldn't prove it". Judge's favorite way of avoiding responsibility for a legal precedent for hundreds of years. I'm sorry, but where the fuck have you been for the last 15 years? The judge essentially can't rule against the RIAA based on "not liable in principle" because the RIAA has written all the relevant laws and had their government lapdogs pass them. At this point, the law as it stands practically makes it illegal to have digital music and internet connectivity on the same computer. The only place the judge can rule against them is in the area of "you can't prove it".

Re:Yet another "not liable by technicality"

[Apple Acolyte]

What you are, in fact, objecting to is due process, a bedrock principle of our judicial system. One of the most important obligations of the courts is to ensure that the laws on proper procedure are followed. If a person's due process rights are violated, it is the court's responsibility to either declare a mistrial or find in favor of the wronged person. Due process issues may seem like technicalities at times, but they're actually terrifically important if you want fair trials.

Re:Yet another "not liable by technicality"

[speaker of the truth]

No I'm not objecting to due process. What I'm objecting to is people celebrating a criminal getting away with a crime. While yes we must let criminals go free for the system to work, that doesn't make it worth celebrating.

Re:Yet another "not liable by technicality"

[brouski]

Who is a criminal? What crime has been committed? You know this is a civil matter, right?

Re:Yet another "not liable by technicality"

[DeadChobi]

You're misusing statistics by assuming that they give any information at all about a sample size of one. Furthermore, just because 50% of people are filesharers, it does not hold that there is a 50% chance that any one person is a filesharer. It holds only that, if 100 people are selected at random there is a significant chance that 50 of them will be filesharers. However, only 1, or 25 or 33 of them could actually be filesharers.

Re:Yet another "not liable by technicality"

[speaker of the truth]

I'm sorry, is downloading and uploading copyrighted music without the copyright owner's permission legal now?

Re:Yet another "not liable by technicality"

[Volante3192]

So you've never broken the law? Ever?

Never went a few miles over the posted speed limit?
Never jaywalked?

It's akin to what IBM said to Sun, "There's lots of laws in this country. Are you sure we couldn't find one that you've broken?"

Re:Yet another "not liable by technicality"

[49152]

Gotten away with it? Nobody has gotten away with anything.

This only means there has to be a full trial before the matter is settled one way or the other.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

Well I prefer not to celebrate people breaking the law and getting away with it.

I prefer to celebrate people not getting away with trampling the court system.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

It's not a crime! This is a civil case.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

You are RETARDED. Learn some basic stats before talking again.

Re:Yet another "not liable by technicality"

[GodInHell]

I'm sorry, but where the fuck have you been for the last 15 years? The judge essentially can't rule against the RIAA based on "not liable in principle" because the RIAA has written all the relevant laws and had their government lapdogs pass them. At this point, the law as it stands practically makes it illegal to have digital music and internet connectivity on the same computer. The only place the judge can rule against them is in the area of "you can't prove it". Angry, but not unreasonable.

However, it is incorrect to assign blame for the wholeness of the problem on congress (really the last three congresses before the current one - which has just refused to correct earlier errors). You need to also spread some hate on the judges that have accepted a "making available" argument in leiu of actual proof of distribution. That has *literally* made it questionably legal to run ITunes with the built in content sharing app (on by default).

-GiH

Re:Yet another "not liable by technicality"

[Anonymous Coward]

Right, but still hardly something worth celebrating over, as many here at slashdot do.

Oh, but it is. This ruling means that the RIAA has to actually produce some serious evidence to go with their accusations.

Are you truly saying you think this person hasn't shared music illegally over p2p?

Based on your statements, I think he has. Also based on your statements, I think you have.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

Enough with your strawmen.

Re:Yet another "not liable by technicality"

[jvkjvk]

When the chances of someone being a filesharer is greater then 50% if someone is chosen at random, it becomes difficult to celebrate this person's innocence. What? Are you saying that it's okay to go after a random person because the probability is that they are guilty? Or that you choose not to celebrate the fact they are innocent? or?

hmm.

Re:Yet another "not liable by technicality"

[NMerriam]

But juries are more likely to rule on "feeling" than on the basis of what is said in a statute

That's why judges still run the courtroom, even in a jury trial. We count on juries to refuse to convict based on "feelings", which is the whole purpose of having 12 random Joes rather than a professional jury class. But we also count on judges to both regulate what evidence is presented to the jury and overturn convictions where "what is said in a statute" is not met. It's basically the best of both worlds, assuming you believe it is better to err on the side of allowing guilty men to go free rather than imprisoning the innocent (not that both don't happen regardless).

Re:Yet another "not liable by technicality"

[Anonymous Coward]

It'd be like having on trial being found not guilty because the state couldn't prove it. That's something that leaves everyone dissatisfied, except for the criminals of course.

It's something that should leave everyone extraordinarily satisfied. As someone above mentioned, technicalities are the core of the law. If a plaintiff or prosecutor can't "prove" the charges, being correct in all particulars, then the defendant absolutely should get off. Otherwise we have a situation like in China, where some 95 or higher percent of cases end in favor of the plaintiff or prosecution, especially in criminal cases. The attitude seems to be that if the authorities went to the trouble of bringing the case, the defendant must be guilty. Of something.

The whole concept of tainted evidence being thrown out is central to justice. If the defendant can play fast and loose with words and evidence, the defendant has no chance at receiving a just decision.

If you need any evidence of this, simply read any given day of Slashdot and notice how many still, after all these years, continue to refer to "copyright infringement", a civil offense, as "theft", a clearly criminal offense.

Most often, the two are conflated under the term "piracy" (which has little applicability outside of maritime [admiralty] law), thereby adding to the general uncertainty about what's at issue.

In this case, the technicality could essentially be reduced to, "You accused the defendant of something which you could not support with sufficient evidence. In effect, he has been mis-charged. You should have brought suit for only that which you could prove." To do otherwise would be to say, "You came before the court with a lot of hand-waving and we find the defendant guilty of such. Whatever that was."

Re:Yet another "not liable by technicality"

[19061969]

I prefer to find out whether people actually *have* broken the law first. Does this not make sense? Surely someone has to have actually broken the law before they can be punished? That's exactly what this case is trying to establish.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

Yes. As a human being I'm able to go with things such as common sense, common knowledge, reality and my gut unlike a court of law which has to find things on either a preponderance of evidence or beyond reasonable doubt. Are you truly saying you think this person hasn't shared music illegally over p2p?

As a human being, you have just ruled yourself ineligible to serve on a jury, at least according to current court procedures. Possibly the surest way to avoid jury service is to say what you just said. In effect, you're telling the judge you believe in jury nullification.

Personally I believe strongly in it, but for the opposite reason from you. You, if I have understood correctly, would use it to convict someone you believed guilty of [whatever]. I would use it to avoid convicting someone under a law which I considered fundamentally, morally unjust, like convicting a kid where the penalty is known to be up to twenty years for possession of a few ounces of pot (like in Texas), when a murderer would likely get fifteen, out in seven.

Hence, judges and lawyers will do their best, during voir dire to make sure you've tied your conscience outside the door before they'll let you onto a jury. Hence, you might have to lie about your true feelings in order to get a shot at rendering true justice.

A little irony -- the captcha is "instruct", exactly what the judge will do to snuff any tendency toward nullification.

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

At this point, the law as it stands practically makes it illegal to have digital music and internet connectivity on the same computer. I respectfully disagree with you there. There is nothing whatsoever in US copyright law that justifies the RIAA's bizarre legal arguments. You just feel that way because the RIAA has been on this binge for 4 years, and the courts haven't thoroughly smacked them down yet.

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

What you are, in fact, objecting to is due process, a bedrock principle of our judicial system. One of the most important obligations of the courts is to ensure that the laws on proper procedure are followed. If a person's due process rights are violated, it is the court's responsibility to either declare a mistrial or find in favor of the wronged person. Due process issues may seem like technicalities at times, but they're actually terrifically important if you want fair trials. Thank you for that.

GP is saying that it's a "mere technicality" that the RIAA brought a frivolous suit unsupported by evidence. I hope the author thinks twice about such a ridiculous statement. If he or a loved one were sued unjustly, he wouldn't think it's a mere "technicality" that the people suing him had no factual basis for their lawsuit.

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

This only means there has to be a full trial before the matter is settled one way or the other. There can't be a trial, it's a "default" case. Defendant probably was served by sewer service and doesn't even know there's a lawsuit pending against him. RIAA can put in whatever "evidence" they want at the hearing.... the only person who can possibly stick up for the defendant is the judge.

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

You need to also spread some hate on the judges that have accepted a "making available" argument in lieu of actual proof of distribution. I am only aware of a couple of judges that have accepted the argument, and in none of those few cases was the issue adequately briefed. I predict that you'll see a different result as the Courts take hold of fully briefed motions and appeals. You will see the RIAA's 'making available' theory slapped down.

Re:Yet another "not liable by technicality"

[DustyShadow]

If a judge finds a jury's decision to be completely against the facts, he may reverse it. But this is pretty rare I believe.

Re:Yet another "not liable by technicality"

[sporkmonger]

Still, if he runs for reelection or whatever, I'll be sure to vote for him. Yay for living in Rochester, NY.

Re:Yet another "not liable by technicality"

[alshithead]

Dude, judges often try to find some issue to deflect their having to make a decision on the matter at hand. I'd call it "better safe than sorry and leave no trail". It's the truly brave judges who will decide that a "principle" matters. Research desegregation in USA public schools and Roe v. Wade.

Re:Yet another "not liable by technicality"

[EdelFactor19]

not really because you don't KNOW he did it.. that is the point of the legal system. If they find everything on his computer and arent smart enough to ask him to produce the purchased album for everything you are still wrong tho. Law works on provable facts, and beyond a shadow of a doubt. if they can't prove you did something then they cant prove it; which means they shouldnt have sued you, and you shouldnt be punished. Calling it a technicality is like saying Im not guilty of murder on a technicality, the technicality being that I didnt commit the murder.

Remember they dont have to prove that he used the internet. they just have to prove he engaged in illegal redistribution.
the reason internet is central to this is that without that external way of knowing it occured they would have no more insight or reason to sue him than any random guy they were trying to catch with mix tapes or exchaning cds

Re:Yet another "not liable by technicality"

[Foobar of Borg]

Otherwise we have a situation like in China, where some 95 or higher percent of cases end in favor of the plaintiff or prosecution, especially in criminal cases. The attitude seems to be that if the authorities went to the trouble of bringing the case, the defendant must be guilty. Of something.

Quite true according to what some of my friends from mainland China have told me. Often enough, an accused person will not even be able to really defend themselves. The attitude is usually "Shut up! You're a criminal! You have no right to say anything!"

Re:Yet another "not liable by technicality"

[Foobar of Borg]

When did the system suddenly change to guilty until proven innocent?

January 20th, 2001.

Re:Yet another "not liable by technicality"

[Anonymous Coward]

Well I prefer not to celebrate people breaking the law and getting away with it. Different strokes for different folks I guess.

If there is insufficient proof, then you are not entitled to say they broke the law. period. If you call someone a criminal before that determination is made by a court, you can be held liable for libel or slander, depending on how you choose to make your opinion known. That's why all serious media are very scrupulous about terming someone an "alleged killer" or the like until a judgment has come down.

If the RIAA chooses to come before a court without doing its homework, it's not "a technicality"; it's likely malfeasance on the part of their lawyers for failing to put together a meaningful case.

If I get your ass dragged into court for theft and my only argument is, "I had $40 in my wallet. When I looked ten minutes later, I had only $20. I don't remember spending the difference. This guy was in town that day, so he must be guilty of theft.", then you had better expect to get your ass thrown out of court, if not into jail for contempt. The other guy in no way "got off on a technicality", unless being innocent is a "technicality" in your poorly-written book.

And for the love of Christ, get rid of simpering cliches in your language, starting with the "different strokes" horseshit, one of the most mindless relics of the sixties.

Re:Yet another "not liable by technicality"

[speaker of the truth]

No I'm not saying its okay. I'm just saying lets not celebrate this person getting off. Its like if a rapist was arrested. I would want him to be found guilty beyond all reasonable doubt or otherwise set free. I wouldn't be happy if he was set free and was the rapist, I certainly wouldn't celebrate it. As people here at slashdot do anytime someone gets away with copyright infringement because the RIAA couldn't prove they did it with a preponderance of evidence.

Re:Yet another "not liable by technicality"

[mpe]

Decided by question of fact, not question of law. Instead of "not liable in principle" it's "not liable because they couldn't prove it". Judge's favorite way of avoiding responsibility for a legal precedent for hundreds of years.

This is hardly a "technicality". It's a rather basic requirement for a plaintiff to prove their case.

But at least it shows you why choosing a judge in such cases is a much better option for the defendant than a trial by jury - technicalities count, precisely for the reason that judges have a vested interest in maintaining the status quo, while juries prefer to take the big-bang approach.

If anything jury members are more "disinterested third parties" than judges. Thus might be more difficult to convince of a case...

Re:Yet another "not liable by technicality"

[jedidiah]

Yes that is a GOOD thing.

That is a necessary side effect of the rule of law. You don't get to go off half-cocked and play vigilante. You have to play by the rules. The fact that the rules allow for some evil to go unpunished is the PREFERRED state of things.

We presume innocence for a reason.

Re:Yet another "not liable by technicality"

[a_nonamiss]

FILESHARING = RAPE

Wait... I bet you work for the RIAA. In that case, I can understand your argument.

Re:Yet another "not liable by technicality"

[speaker of the truth]

FILESHARING = RAPE No, that isn't what I said. I find it quite sad you do not grasp the most basic rudiments of the English language to realize this. You are a prime example on why no child left behind does more harm then good. I hope its repealed in time for your children.

Re:Yet another "not liable by technicality"

[ZDRuX]

But we also count on judges to both regulate what evidence is presented to the jury and overturn convictions where "what is said in a statute" is not met.

Uhmmm, did you just say that the jury doesn't have the last word? You're wrong. The jury decides the final verdict, regardless of what anybody else thinks, even if it's against the written law. The jury is ABOVE THE LAW.

"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st Chief Justice

United States supreme Court, 1789
"The jury has the right to determine both the law and the facts."
Samuel Chase, U.S. supreme Court Justice,1796, Signer of the unanimous Declaration

"The jury has the power to bring a verdict in the teeth of both law and fact."
Oliver Wendell Holmes, U.S. supreme Court Justice, 1902

"The law itself is on trial quite as much as the cause which is to be decided."
Harlan F. Stone, 12th Chief Justice,U.S. supreme Court, 1941

"The pages of history shine on instance of the jury's exercise of its prerogative to disregard instructions of the judge..."
U.S.vs Dougherty, 473 F 2nd 113, 1139, (1972)

Re:Yet another "not liable by technicality"

[ScrewMaster]

I'm glad to see that you have confidence that the courts will put paid to their little scheme. It does seem like the judiciary is running more interference than it used to.

Re:Yet another "not liable by technicality"

[NMerriam]

Uhmmm, did you just say that the jury doesn't have the last word? You're wrong.

No, the jury does not have the last word in convictions. They have the last word in acquittals -- if a jury finds someone not guilty, nobody anywhere can overturn them. But if a jury convicts, and the judge believes the prosecution didn't meet the burden of the law, they can overturn the jury's conviction.

That's what I meant when I said it was the best of both worlds -- you can be acquitted based purely on jury emotions, but you can never be convicted on them.

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

I don't really get why you're talking about acquittals and convictions. This is a civil, not a criminal, case.

Re:Yet another "not liable by technicality"

[NMerriam]

because we're not discussing this case exclusively, we're discussing the legal power of judges and juries in the American court system. I appreciate your valuable comments to the RIAA articles, but we are still allowed to have conversations that aren't specific to the case at hand.

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

OK but the power of a judge, with respect to a jury's findings in a civil case, are different than the powers of a judge with respect to a jury's findings in a criminal case. Just want to make sure that's clear.

Re:Yet another "not liable by technicality"

[a_nonamiss]

I have a very tight grasp on the English language. Just to humor you, I reread your original post. For the benefit of people reading, I have it quoted here in its entirety:

No I'm not saying its okay. I'm just saying lets not celebrate this person getting off. Its like if a rapist was arrested. I would want him to be found guilty beyond all reasonable doubt or otherwise set free. I wouldn't be happy if he was set free and was the rapist, I certainly wouldn't celebrate it. As people here at slashdot do anytime someone gets away with copyright infringement because the RIAA couldn't prove they did it with a preponderance of evidence.
Spin it how you wish. You are comparing filesharing to rape. You said "...let's not celebrate this person getting off. Its like if a rapist was arrested..." That is literally substituting a rapist for a filesharer in your argument. The two are different. When a rapist gets off on a technicality, it is MUCH different than when a filesharer gets off on a technicality.

Also, before you go insulting other people's English skills, you should make sure your own grammar is correct. I'm not typically a grammar Nazi, but since you've broached the subject of English comprehension, and that is taught in the same class as grammar, I'll go ahead and correct you. In your first sentence alone, I see a missing comma and a missing apostrophe. Another missing apostrophe in the second sentence. And the third. I'll stop there. I think it was in second grade that I learned the difference between "its" and "it's"

No child left behind indeed...

Re:Yet another "not liable by technicality"

[bzipitidoo]

Anyone can break most any law. And can do so repeatedly until caught. That goes for murder as well as speeding and copyright infringement. What you seem to be saying is that no one around here has much respect for copyright law. Not exactly. What most of us agree on is that current copyright law is too extreme. At well over 50 years, the terms are far too long. Many perfectly legal and moral fair uses are either forbidden outright, or falsely claimed to be forbidden. Where I part company with many is that I feel the entire concept of there being a "right" to make copies which can be sold, transferred, fought over in court, and so on is seriously out of date. Consequently, all sorts of activities that hurt no one are forbidden. Moreover, thanks to the extreme view of copyright advocated by these would-be monopolists of all content, all sorts of perfectly innocent activities such as checking out a book or CD from a public library are viewed with suspicion.

Darn right about celebrating, and it being a good thing! It's one way to overturn unjust laws. There are far too many unjust laws. It is too easy for some narrow interest to subvert our system to get these bad laws passed, in spite of all the excellent arguments to the contrary, and keep them in force by playing dirty. They keep challenges out of court by trying to buy the opposition off, or win in court with lies and false evidence, or simply pass new versions of the same old idea into law should they actually lose. How else are we to fight back? Rebellion is just as American as apple pie. Undoubtedly many people do upload content that they don't have permission to copy. Until such time as we sort out the ethical and the practical considerations of this activity newly made so easy to do, we shouldn't be too hasty. The issues are not so obvious and clear cut, so, yes, procedure should be followed. No one, not the entertainment industry, nor the little people, should get a free pass on "little technicalities". In absence of a clear cut principle, some of what appears to be minor technicalities could turn out to be very important. What do you want? Throw half the nation into jail for violating copyright, just because they could have done it?

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

Many perfectly legal and moral fair uses are either forbidden outright, or falsely claimed to be forbidden.

Forbidden? No.

Falsely claimed to be forbidden? Yes.

It is the content cartel's oppressive wave of frivolous litigation that is most at fault. It needs to be slapped down by alert judges, like Judge Larimer.

Excellent post, by the way.

Now, that's in interesting way to handle it

[Rogerborg]

If you read the actual ruling (and I know none of you will), it turns out that the defendant has been served, but has never bothered to respond or show up. The RIAA have then gone for a default judgement, but this apparently makes the judge responsible for carefully checking their allegations. Normally that would be the defence's job. So the defendant has in effect managed to get himself a free legal defence, of the very highest quality: the judge himself.

It's a risky strategy, but at least he isn't getting reamed by some guy who makes $300 an hour for playing a lawyer on Slashdot.

Re:Now, that's in interesting way to handle it

[rking]

Denying a default judgment does not mean that the case goes away. It just means that the judge isn't prepared to rule on it on the basis of the facts currently in the record. The defendant can still lose later.

Re:Now, that's in interesting way to handle it

[Ra Zen]

RIAA rarely brings cases to court in states where the defendants actually live. Convenient for RIAA. For the defendants, not so much. Also, due to any number of reasons, defendants are rarely notified of the suit with any reasonable time frame in which to respond. Thus, many cases have defendants missing court dates and having no representation. It looks bad for them, but it may not be their fault. I'm not sure if this happened here, but it is certainly a possibility.

Re:Now, that's in interesting way to handle it

[kwandar]

It's a risky strategy, but at least he isn't getting reamed by some guy who makes $300 an hour for playing a lawyer on Slashdot.

I have to say that if my lawyer was only getting $300 an hour and was regularly on Slashdot, I'd be damned happy about it! IANAL. You obviously have no concept however of the going rate for lawyers or the difficulty of finding one who is well informed on the technical side (which would save many hours of time),

Let me also say that the lawyers I've seen on Slashdot seem to have a preponderance for defending those who can't afford to defend themselves. You should hope that if it happens to you, you end up paying only $300 per hour or and/or get a defense from a slashdot lawyer who is willing to help.

Re:Now, that's in interesting way to handle it

[Anonymous Coward]

I know it tends to work that way in real life, but being an arrogant prick doesn't add weight to your arguments.

Re:Now, that's in interesting way to handle it

[Anonymous Coward]

You must have the reading comprehension of a two year old. You talked of a default judgment which was denied which was the exact topic the other person responded to. I hate thread hijacking myself. But this, my arrogant friend, was not such a case.

Re:Now, that's in interesting way to handle it

[Rogerborg]

Depends on the lawyer and why you need them. If you're betting your business in litigation, pay more. If you're contesting a traffic charge on a technicality, don't. In this case, clearly $300 an hour is $300 more than the accused needed to pay.

You get that the suggestion that there are any actual lawyers on Slashdot is a joke, right? There are no lawyers, girls or non-virgins on here, except me and thee, and I'm not so sure about thee.

Semantics

[Anonymous Coward]

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is (or was - does anybody actually use Kazaa anymore?).

Re:Semantics

[JamesRose]

RTFA, The RIAA uses it all the time.

Re:Semantics

[Anonymous Coward]

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is No it isn't. Can anyone speak English anymore? Kazaa distributed the product, not the media. You could reasonably descibe Kazaa as an online distribution medium; that would be accurate.

Re:Semantics

[Anonymous Coward]

The data is what contains the music/movies/etc. How exactly would data be transferred without a media? All these silly semantic games, just to rationalize why it's not stealing when you download bootleg copies of "Transformers: The Movie."

Re:Semantics

[someone1234]

It is not a 'media distribution' system, it i a 'file sharing' system.

media != file

Re:Semantics

[clarkkent09]

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is

There is a difference between "online file sharing system" which is what the rest of the world calls it and "online media distribution system". I am surprised they didn't go for "online intellectual property stealing system", I guess they decided on a slightly more subtle approach.

Re:Semantics

[Anonymous Coward]

The data is what contains the music/movies/etc. How exactly would data be transferred without a media? As I said in the post you replied to "You could reasonably describe Kazaa as an online distribution medium". i.e. Kazaa is the medium. Or in your vocaculary it is "a media". It doesn't distribute the medium. It is the medium. It itself uses other media e.g. the internet, but it doesn't distribute that either.

Re:Semantics

[Anonymous Coward]

Sorry, my implicit criticism of your use of words ("a media") was over the top. We all make typos or poorly edit our posts at times.

Re:Semantics

[ConcreteJungle]

I guess they decided on a slightly more subtle approach Are you accusing the *IA of subtlety? Suing grandmothers and small kids isn't exactly subtle is it.

Re:Semantics

[st0rmshad0w]

Definition: media, An object or device, such as a disk, on which data is stored.

Their term is incorrect even as a description, as Kazaa does NOT distribute media, if it sent you CDs in the mail that'd be different.

I can find no definiton for the term media that defines it as data or content.

Re:Semantics

[Anonymous Coward]

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is (or was - does anybody actually use Kazaa anymore?).

Really?! That's great!

I have never made use of any of these services (yeah, I haven't been keeping up). So tell me, what kind of media can I get through kazaa? Blank CDs or blank DVDs? Fresh cassette tapes? Eight track tapes? Maybe some more file space?

Oh wait...

Could somebody send RIAA a link to dictionary.com and have them look at the definition of "media"? Their legal arguments might be more clear if they learned to use English in a more goodly and better fashion.

Re:Semantics

[stubear]

Merriam defines media as "a medium of cultivation, conveyance, or expression". I think a digital file certainly fits this definition. Therefore an Online Media Distribution System could certainly be one that distributes digital files, in this case music. The name is significant in that P2P is nothing more than distribution. As distribution is one of the five basic rights granted the owner of intellectual property, and arguably the most important to maintain and control, it behooves them to ensure that people can't become distributors of intellectual property for which they do not have the rights or permissions necessary to do so. You are more then welcome to write your own music and distribute it however you choose though.

Re:Semantics

[funkyloki]

All these silly semantic games, just to rationalize why it's not stealing when you download bootleg copies of "Transformers: The Movie."
Who would waste their time downloading that piece of crap? I mean c'mon, they killed off most of the characters, including Optimus Prime. I remember all the hype surrounding that movie when it came out in 1986, and boy, was I disappointed.
Oh wait, did you mean "Transformers", not "Transformers: The Movie"? Well ok then.

Re:Semantics

[networkassault]

The very term "Online media distribution system" is so broad that it could cover YouTube, the iTunes Store, Napster, and eMusic, just to name a few. Heck, it's even broader than that. Since text is a form of media, this site and all sites on the web are "online media distribution systems." This was probably the RIAA's intent. Create a term that is so broad that it could be applied to anyone you dislike and that causes a sufficient level of confusion. Since the RIAA is unable to prove much about the majority of filesharing cases, they feel that they can get away with overly vague terms, as opposed to factual evidence.

Defendant is still not out of the woods

[LinEagle]

If you read the pdf link to the decision, it is noted on page 4 at the bottom that there will still be a further hearing. It is here that the RIAA will get a chance to substantiate its claims.

However I will say it is good that the judge actually read the arguments and understood that the RIAA did not provide the evidence.

Communists!

[clarkkent09]

Damn, another one gets away on a technicality. I can just imagine heavyjeffmc, sitting in his mother's basement, overflowing his chair, enjoying his loot of stolen south park episodes and van halen songs, surrounded by candy bar wrappers and empty soda cans, laughing at his victory. Some people get it all for free while the poor pop singers and movie stars have to bust their asses earning a living. There is no justice in this world, I tell ya...

No big news here, but...

[Stanislav_J]

No huge defeat for the RIAA here, but it does show how a savvy judge can recognize when evidence is flimsy or insufficient. That's why the RIAA really doesn't want any of these cases to hit the courts -- it requires a higher standard of proof from them, and that means more time and money proving the case. They know that most folks receiving a "letter of doom" from them will just cave in and pay the extortion money up front.

But to digress to a wider subject here.....do you think the RIAA understands that their tactics are but a finger in a dike? Do they honestly believe that their efforts have made any significant dent in file sharing of copyrighted material? And if not, then why do they persist? Just on principle alone? Despite what some here have implied, this can't be a cash cow for them -- the settlements offered are relatively low, and I can't imagine that they are not running in the red on these endeavors when you look at the bottom line. Even the much publicized recent $200K+ judgement they won, IF they could collect it (good luck with that), probably wouldn't even come close to covering their overall expenses so far.

I'd love to see statistics on what they have spent to go after filesharers versus what they have recovered in settlements. For that matter, I wonder how many active P2P users were sharing copyrighted stuff before the RIAA started their campaign, and how many do so now. I'm willing to bet that the numbers have not decreased, but increased significantly. After all, RIAA goes after a handful of people in the U.S. -- most have not been busted, and they can't even touch those outside the U.S. For that matter, how many folks sharing and downloading music on these networks have ceased to do so on their own out of fear that they will be busted? Probably a modest number, but certainly not a huge percentage. For every person that is busted or just stops on their own, I'm sure there are half a dozen more taking their place.

Maybe it really is just the principle of the thing, and they have to actively do SOMETHING to defend their members' copyrights simply to have a track record of doing so? You know, in the event of any future legal or legislative challenges to these copyrights, or the whole copyright system in general? Is there a provision in copyright law that requires that one to actively defend their copyrights in order to keep them? Help me understand this, please.

Re:No big news here, but...

[Jeff DeMaagd]

I don't think the litigation is intended to make money. I do think it's an odd way of trying to "keep people honest" so that more people don't go out and illegally download or distribute music. I don't think it needs to keep EVERYONE honest. It doesn't work that way. For example, speeding is fined, but that doesn't stop speeders, but enforcing the speed law does keep the average speed down. I've seen this anecdotally in my town, for the short time when the town put the law enforcement on emergency only, average speeds went up. They contract a patrol car, they went back down again.

I think a lot of the people that do download either don't care, don't keep up with the news or are just taking their chances. The chances are good that they are safe unless there is some new way to prosecute or enforce the law. If one in a thousand are targetted, and those people are asked to pay $3000, then the average price the user pays is $3. So I think that goes to reinforce your statement that the nastygrams really aren't much of a revenue stream.

Re:No big news here, but...

[rhizome]

do you think the RIAA understands that their tactics are but a finger in a dike? Do they honestly believe that their efforts have made any significant dent in file sharing of copyrighted material? And if not, then why do they persist?...Is there a provision in copyright law that requires that one to actively defend their copyrights in order to keep them?

1. Yes
2. No [ibid.]
3. Historically the members of the RIAA cartel have had complete control over the distribution of all music. P2P/Filesharing threatens that control, so they are trying to stall adoption until they can figure out how to deal with it by suing those who participate in alternative distribution mechanisms. Make no mistake, they are suing people for voting with their feet. So far, the cartel members' adaptation has amounted more to lobbying than finding new business models, but at the core it's all about them wanting all of the money that you are paying for music and not sharing it with any dumb kids and their dotcom protocols. None of this bad press matters as long as they wind up with all of the control.
   
4. You're thinking of trademarks. Copyright law requires no such diligence.

Re:No big news here, but...

[Anonymous Coward]

Do they honestly believe that their efforts have made any significant dent in file sharing of copyrighted material? And if not, then why do they persist? Just on principle alone? Despite what some here have implied, this can't be a cash cow for them -- the settlements offered are relatively low, and I can't imagine that they are not running in the red on these endeavors when you look at the bottom line.

The RIAA's existence is solely dependent on the whim of the corporations who constructed it and continue to fund it. RIAA has to prove to Sony, et al, that it is doing some kind of good for them. Since they can't demonstrate that their methods have improved the bottom lines of their sponsors, they must be feeling pretty desperate by now, because all these lawyers are likely to be out of work pretty soon.

If you were on the Hiring Committee, would you recommend that your company hire a sleazebag lawyer whose last job was working for the RIAA? Wouldn't his name on the company roster introduce a slight whiff of two week old dead mouse in the cupboard? Who would want to work around that odor when there are so many perfectly good brand new law school graduates who haven't sullied themselves yet? I mean, it isn't like the experience of preparing RIAA cases is good for anything (except maybe the legal equivalent of busting kneecaps).

Expect RIAA to get increasingly vicious, ugly, and stupid as those employees who have any real world skills and a lick of intelligence find more meaningful work elsewhere. Expect that somewhere in this downward spiral, the RIAA corporate sponsors will decide they've thrown enough good money after bad, and shut the whole thing down. Then expect a minor flood of bad lawyers that will increase competition at the bottom-most rungs of the legal profession.

Re:No big news here, but...

[GodInHell]

Even the much publicized recent $200K+ judgement they won, IF they could collect it (good luck with that), probably wouldn't even come close to covering their overall expenses so far. I'm still convinced that this is a money MAKING operation. They are pushing enough cases through that document reuse is becoming more viable. They're also trying to stack up precedent to make these cases roll through quickly. From the RIAA's persepctive - all they need is a break-even to punish the "bad actors." From the law firm's persepctive - they're printing their own money with these cases. File sharing is unlikely to go away - so making this into a routine 1-to-2 thousand dollar intake for every two or three letters they send out with an occasionaly 20-100K outlay for a day in court to keep the process rolling is good bussiness - at least for the lawyers.

-GiH

Re:No big news here, but...

[TechForensics]

And if not, then why do they persist? Just on principle alone? Despite what some here have implied, this can't be a cash cow for them -- the settlements offered are relatively low, and I can't imagine that they are not running in the red on these endeavors when you look at the bottom line.

I think the point is they make more from each settlement than the cost of extorting it. True, not a cash cow, but it certainly costs them nothing. In dollars.

Re:No big news here, but...

[SoulRider]

Still dont get it? This not about file sharing or piracy (or whatever), its about control.

1). They want to close what they call the "analog hole", in other words they want to eliminate Fair Use.
2). They want us to pay every time we consume their content, none of this pay once and listen anytime nonsense.
3). With the internet and prices of recording technology going down, they are scared that they are becoming irrelevant (this will happen no matter what). They are a dinosaur thrashing in the tar pit of a changing industry.

These law suits are a tool so they can go to our legislators and claim they need more laws to keep the dirty pirates at bay. They are trying to create a world where legally they are the only ones allowed to distribute entertainment.

RIAA heading for a big fall?

[Nomen Publicus]

I wonder why the RIAA is persisting in taking this high risk approach. It may be cheap to not bother actually obtaining and presenting evidence, but when the courts realise that the RIAA is depending on lazy judges to just rubber stamp the case, there will surely be retribution.

Re:RIAA heading for a big fall?

[NewYorkCountryLawyer]

I wonder why the RIAA is persisting in taking this high risk approach. It may be cheap to not bother actually obtaining and presenting evidence, but when the courts realise that the RIAA is depending on lazy judges to just rubber stamp the case, there will surely be retribution. The reason is this: they don't actually have evidence that the defendant committed a copyright infringement.

No

[Anonymous Coward]

That was easy, and no, I won't help you further. You lack the most basic understanding of how things work - better work on that first. Secondly, I'm against electronic jamming.

Re:No

[JackMeyhoff]

Good thing I just bought a cell phone jammer then :)

Re:No

[JackMeyhoff]

Well, I managed to jam every AP in my area :) Set it to Israel channel spacing with Xtreme speed, full power and Adhoc connected. It just kicks em off in some cases permanently as some AP's presumably crashed :)

Re:No

[Nom du Keyboard]

Well, I managed to jam every AP in my area :) Set it to Israel channel spacing with Xtreme speed, full power and Adhoc connected. It just kicks em off in some cases permanently as some AP's presumably crashed :)

The FCC will be knocking at -- er, crashing through -- your door shortly.

Re:No

[JackMeyhoff]

FCC? Isn't that an American thing?

Claim Ignorance

[JamesRose]

You've never used an online media distribution system, its a term they've made up, did they define it for the court? If they didn't they are referring to something they madeup. It's like walking into court and decalring from now on, you will be known as willy wonka. Just because they've made up this term and decided to use it, doesn't mean its a real word or a technical term. If it uses that term in a legal document have the case thrown out for having made up terms in it. Either that or contend that term refers to a small African Elephant that you've never had contact with (hell, it could mean anything)

Re:Claim Ignorance

[CodeBuster]

I tend to agree. If the term does not have widespread currency, which could mean that it is used in dictionaries and in common usage, used by professionals in the practice of their profession (a medical, engineering, scientific, political, or economics related term or something that professionals of a particular field could be called to define in their testimony), or defined explicitly by law then it should be regarded as a meaningless statement and stricken from the record of the court and not considered. The RIAA does not have the right to make up words and terms as they go, especially when it is clear that their goal in selecting a term to define an activity is to stigmatize or present a biased view of the activity in question (alleged use of filesharing software for copyright infringement). Can you get a case thrown out if the opposition uses meaningless statements (a variation of the Chewbacca defense albeit a bit more subtle in this case) in their arguments?

Creative Commons Music Can Be Legally Shared

[MichaelCrawford]

We could all stay out of trouble if we downloaded and shared music with the permission of its copyright holder. The best way to know that one has permission is to look for a Creative Commons license notice.

Here are some resources for you:

• Creative Commons Search
• Jamendo - CC music distributed via BitTorrent and eMule
• My own piano music - you could really help me out if you shared it on the Internet
• The Mutopia Project - CC and public domain sheet music

I placed my music under the Creative Commons Attribution ShareAlike license because I hoped that would enable more people to get to know my music. While I work as a programmer now, I've been studying piano so that, when I can pass the entrance audition, I can enroll in music school to study musical composition. I want to compose symphonies someday! By sharing my music freely, there will be plenty of fans ready to buy tickets to my performances when I'm ready to play professionally.

Re:Creative Commons Music Can Be Legally Shared

[Joe Jay Bee]

We could all stay out of trouble if we downloaded and shared music with the permission of its copyright holder. The best way to know that one has permission is to look for a Creative Commons license notice.

I'm sorry, that sounds like common sense there. (Creative Commons sense, perhaps?) The usual procedure here is to bitch and whine about copyright holders taking action to prevent copyright infringement, then claim that the solution to it is copyright infringement. Better luck next time. ;)

Shhhh!

[Anonymous Coward]

"In case you're unfamiliar with the term 'online media distribution system,' that's because it is a term the RIAA coined 4 years ago to describe p2p file sharing accounts in its lawsuits; the term is not known to have been used by anyone else anywhere else."

Don't say that! If the RIAA hears you they'll realize they should patent the terminology and find a new reason to sue everyone.

Generalize. Fitting Punishment.

[Erris]

In this instance, it was a decision about a specific set of facts which are non-generalizable.

That would be true if the RIAA show trials were different from each other in any way. None of them ever present "sufficient evidence" of damage. If other judges look at this decision and follow, the game is over as it should be. This judge has come close to understanding that the charges themselves are unsupportable.

The sad fact of life for the broadcast and recording companies is that they have nothing special to offer. Anyone can now make good quality recordings and everyone has access to the same, dirt cheap promotion platform. Their position as the sole promoter of music can only be maintained by eliminating everyone else's rights.

The nature of publishing has changed and the laws need to move with it. If the goal of copyright it to maximize culture and the state of the art, copyright law needs to become more accepting of new publication methods not less accepting. Terms of exclusivity and punishment for violation of that exclusivity need to more closely match the lower costs of recording and publishing. 100 year copyrights and $200,000 judgements are absurd. You will never see anyone prove actual damages like that because it never happens.

My hourly rate on Slashdot

[NewYorkCountryLawyer]

So the defendant has in effect managed to get himself a free legal defence, of the very highest quality: the judge himself. It's a risky strategy, but at least he isn't getting reamed by some guy who makes $300 an hour for playing a lawyer on Slashdot. kdawson, are you reading this?

I didn't know I was supposed to get paid for this.

Please tell Cmdr Taco to send me my check, I could really use the money.

Thanks. If I had known, I would have been much nicer to you guys.

Re:My hourly rate on Slashdot

[Anonymous Coward]

The check will be delivered by CowboyNeal himself.

Where is the RIAA going to get the evidence from?

[NewYorkCountryLawyer]

The key here is that the RIAA doesn't have any additional evidence to bring to the hearing; it has admitted under oath that it can't identify the individual.

So what they'll do is come armed with a bunch of backdated printouts and a lot of doubletalk, and hope to confuse the judge. Whether they can confuse this judge, as they have confused so many others, is, however, as you can see from the decision, quite problematic.

This would have been much better if

[spiritraveller]

the headline were "Judge grants Defendant's summary judgment motion against the RIAA".

All this story says is that the RIAA didn't win yet. The judge denied the RIAA's motion for summary judgment, so there are issues of fact that will have to be decided by a jury. Sounds like the motion didn't have any merit anyway.

They will go to trial and some jury will decide that since the Defendant's name is "Jeff" and his username was "heavyjeffmc" he probably is the same guy. Unless there is some evidence of another guy named Jeff using the defendant's internet connection.

Re:This would have been much better if

[NewYorkCountryLawyer]

All this story says is that the RIAA didn't win yet. Yeah, but it's bigger than you think. Because the RIAA doesn't have any more evidence. They've told the judge exactly how they think they've identified the infringer; and the judge noticed that their proof is defective. They don't have any more proof to come back with. They have admitted under oath, in their expert's deposition, and at the Capitol v. Thomas trial, that they can't identify the actual infringer. So what are they going to come to the hearing with? Evidence they've sworn under oath doesn't exist?

Re:This would have been much better if

[spiritraveller]

So what are they going to come to the hearing with? Evidence they've sworn under oath doesn't exist? I figure they'll just present whatever records they got from the guy's ISP that show he was using the IP address and then hire another expert who will sign an affidavit explaining how the IP protocol works and that the IP address is unique to the defendant's account at that particular time. They'll then have the investigator who downloaded the song file an affidavit explaining how and at what time he downloaded the song from that IP address. If they really want to go nuts, I suppose they could do something like subpoena the defendant's landlord to testify that he's the only one who lives at that residence.

If these were criminal cases, I'd have a field day defending these folks, but with the standard of proof in a civil case, it's got to be tough for a defendant to win.

But I defer to your judgment, as you're the expert. I really appreciate your contribution here.

Re:This would have been much better if

[NewYorkCountryLawyer]

So what are they going to come to the hearing with? Evidence they've sworn under oath doesn't exist? I figure they'll just present whatever records they got from the guy's ISP that show he was using the IP address and then hire another expert who will sign an affidavit explaining how the IP protocol works and that the IP address is unique to the defendant's account at that particular time. They'll then have the investigator who downloaded the song file an affidavit explaining how and at what time he downloaded the song from that IP address. If they really want to go nuts, I suppose they could do something like subpoena the defendant's landlord to testify that he's the only one who lives at that residence. If these were criminal cases, I'd have a field day defending these folks, but with the standard of proof in a civil case, it's got to be tough for a defendant to win. But I defer to your judgment, as you're the expert. I really appreciate your contribution here. This appears to be a good judge who follows the law. Therefore

they won't be able to bring affidavits but will have to bring witnesses

the witnesses will have to be competent to provide the testimony they will attempt to introduce

the exhibits will have to be authentic

the exhibits will have to be properly authenticated

the investigator witness will have to show he's properly licensed

the evidence will actually have to prove that the defendant committed an infringement of one of the rights enumerated in 17 USC 106(3).

I.e., even with the defendant in default, they will not be able to prove their case, which means they will likely lose.

I would not be surprised to see them quietly forget about this case.... they've bumped into a judge who sees through their lack of evidence. They can stand on their head but will not be able to actually prove a prima facie case with the garbage they have.

Re:This would have been much better if

[spiritraveller]

they won't be able to bring affidavits but will have to bring witnesses I thought this was similar to a motion for summary judgment, where you can file affidavits to show what the testimony would be if it went to trial.

If your defendant is in default, why would you have to do anything more than state a claim?

Forgive my ignorance, I don't practice in Federal court. Last time I moved for a default judgment, it was granted and I didn't have to present ANY evidence.

Re:This would have been much better if

[NewYorkCountryLawyer]

they won't be able to bring affidavits but will have to bring witnesses I thought this was similar to a motion for summary judgment, where you can file affidavits to show what the testimony would be if it went to trial. If your defendant is in default, why would you have to do anything more than state a claim? Forgive my ignorance, I don't practice in Federal court. Last time I moved for a default judgment, it was granted and I didn't have to present ANY evidence. The judge has ruled that their affidavits were not sufficient and that he is requiring a hearing.

Copyright infringement cases are tort cases, not contract cases. When is the last time you saw a default judgment entered on a negligence claim?

Re:This would have been much better if

[Anonymous Coward]

They'll then have the investigator who downloaded the song file an affidavit explaining how and at what time he downloaded the song from that IP address. If they really want to go nuts, I suppose they could do something like subpoena the defendant's landlord to testify that he's the only one who lives at that residence. Let them do exactly that. This will establish the necessary paper trail to bankrupt the RIAA and entire music label industry when they download copyrighted spoof files or mistakenly download files where the copyright is held by someone else. I've said it before, this is exactly why copyright is *already* de facto dead.

The whole point is nobody *knows* a file contains copyrighted content until *after* they download a file. The RIAA trackers must download files. And as they are an entity it will be extremely easy to get their IP address and sue them for everything when they make inevitable mistakes. When you create a copyrighted .mp3 file titled Toxic - Spears and it is you rambling about applying poison to spear tips in an mmorpg game, and the RIAA downloads that (and simultaneously uploads that on bittorent), their fate is sealed. It will cost them more money to police copyright infringement than they could ever make from the business of selling music.

Who's to say these "traps" aren't out there already, and that I couldn't go to a bank and get a billion dollar loan, or sell 10 billion worth of stock on the probability of copyright infringement claims being favorably adjudicated against the RIAA and the music industry that is responsible for hiring the RIAA?

I need a good Wall Street name for this strategy, along the lines of "poison pill", "pac man defense", "white knight" etc., something that looks and sounds good in an IPO Prospectus.

Re:Kazaa still up..

[Technician]

does anybody actually use Kazaa anymore?

I thought they were sued out of existance like Napster (The new Napster is Napster in name only and is not the old Napster)

A Google search shows they are not gone yet. They are still there. Them and Limewire seem to be the number 1 & 2 sources of RIAA targeting.

http://www.kazaa.com/us/index.htm

A few lawsuits are good for the P-P community. It shows problems with user privacy so vast improvements can be made.

I hope the RIAA will like the new versions. The biggest one they have problems with is the oldest. It's called the sneakernet.
http://en.wikipedia.org/wiki/Sneakernet

Most attacks due to it's excellent privacy is carried out as a public relations campaign and sometimes through malware.
http://www.usbhacks.com/
http://en.wikipedia.org/wiki/Don't_Copy_That_Floppy
http://www.cosky.com/?q=node/27
http://en.wikipedia.org/wiki/Copy_protection
http://en.wikipedia.org/wiki/Pod_slurping

Everyone can now make good quality recordings...

[patio11]

... which is why, if you open a random P2P users' collection, you will find hundreds of gigabytes of quality open-license indie music like Code Monkey and maybe three or four random crappy Britstreet Boys tracks.

The labels are certainly not the only ones capable of making music, but they sure seem like they create the vast majority of the music that people think is valuable enough *to pay nothing for*.

You're not a Slashdot reader playing a lawyer

[patio11]

You're a lawyer playing a Slashdot reader. Same difference -- we can tell you don't belong here. Probably work out, have friends of the opposite sex, use a Windows box and think Perl is an abomination. And you're right, Perl *IS* an abomination, but you still don't belong here. :)

Re:You're not a Slashdot reader playing a lawyer

[NewYorkCountryLawyer]

You're a lawyer playing a Slashdot reader. Same difference -- we can tell you don't belong here. Probably work out, have friends of the opposite sex, use a Windows box and think Perl is an abomination. And you're right, Perl *IS* an abomination, but you still don't belong here. :) Guilty on all counts except about Perl.... I don't know enough about Perl to form an opinion.

Does it help that (a) I don't like Windows (b) I went to Bronx High School of Science, and (c) I used to have pocket protectors until I misplaced them after graduating from high school?

Re:You're not a Slashdot reader playing a lawyer

[xtracto]

c) I used to have pocket protectors until I misplaced them after graduating from high school?

That would make you a nerd... which is different from a geek. But hey, slashdot is supposed to be "news for nerds" so I guess you would be more "on site" than lots of geeks here :).

BTW, the other day I talked with my lawyer friend about Copyright infringement in Mexico. It seems (from what he told me) that in Mexico it is a criminal offence (copyright infringement). So if you get sued of C.I. over there you get to go to a criminal court (instead of the civil court... it is more or less similar). The advantage? is that they *must* absolutely prove (without any doubt)that you are the one that infringed the copyright.

So far, I believe no one has been targeted there for copyright file swapping and all that... of course I guess the RIAA knows that they can't extort too much money from us poor beaners =oP.

Re:You're not a Slashdot reader playing a lawyer

[NewYorkCountryLawyer]

c) I used to have pocket protectors until I misplaced them after graduating from high school? That would make you a nerd... which is different from a geek. But hey, slashdot is supposed to be "news for nerds" so I guess you would be more "on site" than lots of geeks here :). BTW, the other day I talked with my lawyer friend about Copyright infringement in Mexico. It seems (from what he told me) that in Mexico it is a criminal offence (copyright infringement). So if you get sued of C.I. over there you get to go to a criminal court (instead of the civil court... it is more or less similar). The advantage? is that they *must* absolutely prove (without any doubt)that you are the one that infringed the copyright. So far, I believe no one has been targeted there for copyright file swapping and all that... of course I guess the RIAA knows that they can't extort too much money from us poor beaners =oP. Yes I guess you're right, although I was so closely associated with geeks that I considered myself to be one of them. The thing is, I didn't really fit in as a nerd, either, because I lived in a very tough neighborhood, and took no guff from bullies. So I guess I was neither a full fledged nerd, nor a qualified geek... I was merely someone who found friendship among such people, more easily than I found it among the ghouls, vultures, hyenas, and other carrion feeders of the world, like the RIAA's running dogs.

Yes they would go after people criminally if they could.... they would stop at nothing... in some countries, such as France, they bring criminal not civil cases.

In the US if they tried to bring such cases they'd probably go to jail themselves for filing false criminal complaints.

Re:You're not a Slashdot reader playing a lawyer

[xtracto]

Yes they would go after people criminally if they could.... they would stop at nothing... in some countries, such as France, they bring criminal not civil cases.

In the US if they tried to bring such cases they'd probably go to jail themselves for filing false criminal complaints.

I think you missunderstood my comment. The fact that they file criminal charges in Mexico is because it is stipulated in Mexican law that copyright infringement cases are indeed criminal cases. It is curious that you mention France, because an interesting fact is that Mexican law is *very* similar (I believe it was heavily based on it) to French law. I guess copyright suits are one of those issues.

In the light of that, I think it would be better if "copyright infringement" had to be criminally prosecuted in the USA, because AFAIK the RIAA and others would need to show that the defendant was guilty beyond a reasonable doubt, which I think would make it a not very profitable business. I guess each on of them has their advantages and disadvantages, as if found guilty of the charges in the criminal case it would be possible to end in jail.

Oh well, this is going very offtopic so I will leave it at that.

Not free and clear.

[GodInHell]

Well I prefer not to celebrate people breaking the law and getting away with it. Different strokes for different folks I guess. Again.. No one has "gotten away" with anything yet. The RIAA will actually have to mount a case - that's all. Since the defendant has elected not to appear in court he dosen't get to mount a defense. The RIAA will be able to put their case before a jury and ask a group of people to agree with them.

More specfically, let's quote TFA

Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs' consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the "KaZaA" online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, dentified only by the username heavyjeffmc@KaZaA, was determined to be the defendant. Here RIAA, here is the roadmap of evidence - show me an IP, show me that this IP was leased to the defendant at the time someone was sharing these files from that IP... this is the minimal (and questionably reliable) level of evidence the RIAA has used in so many of its other cases. Bearing in mind that there was no opposing counsel to argue that any of RIAA's theories were sloppy or unproven - they just didn't present a case. . . but they still can. The case wasn't dissmissed. It's NOT over.

-GiH

Re:Not free and clear.

[NewYorkCountryLawyer]

GP was written by a user who immediately jumps into every discussion about the RIAA with a pro-RIAA line. Since I have never met anyone in the real world other than people on the RIAA payroll who say such things I really wonder who he or it works for.

Re:Not free and clear.

[Anonymous Coward]

Mr. Beckerman, I just want to let you know that even if your posts are sometimes not moderated as highly as they deserve, there's still many people out there reading them. Thank you for all your insightful commentary and please keep up the good work :)

Re:Not free and clear.

[ScrewMaster]

Since I have never met anyone in the real world other than people on the RIAA payroll who say such things I really wonder who he or it works for.

I have met such people in the real world, but they are generally uninformed and believe what little they've heard in the news about these issues (usually media company disinformation.) Nobody with more than a cursory understanding of the facts should be able to rationalize defending these creeps, and nobody whose spent much time on Slashdot reading threads like this one can reasonably be considered "uninformed."

For a reason

[GodInHell]

Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs' consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the "KaZaA" online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, dentified only by the username heavyjeffmc@KaZaA, was determined to be the defendant. There are some documents that need to be filed with the court that are not supposed to contain arguments. It's best if you use terms that are not SO argumentative in their nature that they can be used in all court filings. From a persuasiveness standpoint, they're making the decision that the persuasive power of using a slightly skewed term everywhere is better than using a heavily slanted term in some places and a different term elsewhere. Besides, in court, you can use inflection to mame the two phrases sound like they're the same thing anyway - or define a media distribution system AS a tool of theft. Prybar, check, lockpicks, check, 9mm, check, Kazaa, check. :/

-GiH

See

[cdrguru]

Internet = No Consequences.

Your IP address is not your name. Your ISP does not claim that all activity on an account is the responsibility of the account holder. Therefore, tracking illegal activity to your IP address isn't good enough.

They need to get a photograph of who is at the keyboard. And without that, sorry, no evidience of wrongdoing. Unless, of course, you are an idiot and (a) use the same name lots of legal and illegal places or (b) blab about what you are doing. Both of those will get you in trouble.

Re:See

[Anonymous Coward]

Your ISP does not claim that all activity on an account is the responsibility of the account holder.

Surely you're a) kidding or b) ignorant. An excerpt from my ISP's TOS (which I believe to be standard boilerplate for most others) follows.

Accountability

The owner of any type of [my ISP name] account or service will be held responsible for any abuse of that account or service, regardless of whether the owner was the actual initiator of the abuse. This includes for example but is not limited to: abuse of an email account or dialup add-on which is part of a customer's account but which is used by a third party or abuse of a colocated server or colocation services by a third party, with or without the account owner's permission.

Without such provisions, I could with impunity set up any number of spam generators and turn them over to others for use as they see fit.

Re:See

[Anonymous Coward]

An excerpt from my ISP's TOS (which I believe to be standard boilerplate for most others) follows.

Accountability

The owner of any type of [my ISP name] account or service will be held responsible for any abuse of that account or service, regardless of whether the owner was the actual initiator of the abuse. And that's unenforceable wishful legally limp junk. Your isp can't upload some child pornography to your desktop and then call the police and hold you responsible (even if you did "sign" an EULA that says you are responsible for *any* abuse). But even though you personally want to spend some time in jail and register as a sex offender for crimes you didn't commit, the law demands evidence, not mere charges or allegations. And every RIAA case so far is lacking evidence. There's no proof the RIAA hasn't simply made up I.P addresses and photo-shopped file titles corresponding to RIAA songs.

Hey maybe we should just submit criminal boilerplate charges against the RIAA attorneys for fraud, conspiracy to commit fraud, etc. (now there's a whole truckload of RICO), and ask Judges for DEFAULT prison sentences? That would be poetic JUSTICE for the RIAA attorneys and those individuals who hired those RIAA attorneys. That's why there must be proof that the person alleged to have committed a wrongdoing is the actual person that committed the wrongdoing.

No, individual persons are responsible for individual actions. I.P. addresses aren't persons. Screenshots of filenames aren't proof of the actual content in those files. And RIAA goon trackers aren't licensed or qualified law enforcement solving "crimes" and gathering "evidence".

Re:Everyone can now make good quality recordings..

[Anonymous Coward]

Why should I go to Kazaa for Code Monkey, when I can just get it from Coulton's own web site?

Re:Everyone can now make good quality recordings..

[UncleTogie]

The labels are certainly not the only ones capable of making music, but they sure seem like they create the vast majority of the music that people think is valuable enough *to pay nothing for*.

The labels, as much as they'd like to indicate otherwise, don't create the music. They create the marketing. Should I be more impressed with an artists ability to create, or the record firms ability to try to pawn a crap sandwich as filet mignon?

Truth Is...

[Nom du Keyboard]

Truth is that it's likely impossible to actually prove that filesharing happened. Yeah, MediaSentry, now SafeNet, claims that they got downloads of infringing material from a certain IP at a certain time, but that's not capital-D Distribution because they work for the plaintiffs. Short of a keyboard+screenshot logger, illegal tapping of the broadband line right as it comes out of the computer, or a witness to the filesharing in question (and how would that witness even know who was downloading a file anyway, since KaZaA names are all aliases?), their is no actual proof of Distribution.

In the one court case the RIAA did win, Distribution was never proven. That woman was convicted, on a preponderance of the evidence, of Making Available. The jury was stupid, Internet illiterate -- and damn proud of it! Yet the two foremost authorities on copyright law (Nimmer, and the other one whose name escapes me -- IANAL) require that Distribution actually occur before the owner's exclusive right has been violated. That's impossible to prove with the evidence the RIAA has unless they can force someone to testify against the Defendant. In fact, turning somebody who probably participated in the downloading themselves is likely the only way the RIAA could honestly win a case with a fair jury and proper jury instructions.

Furthermore, even if "illegal" music files are found on a computer hard drive, that doesn't mean that they were "illegally downloaded" by the computer owner. They could have been ripped from owned or borrowed CD's. A friend could have brought over a data DVD of MP3 files and loaded them. The point is that MP3's on a computer hard drive alone is not evidence of illegal downloading.

Ray, you ask elsewhere what evidence to demand from the RIAA. Most of all you should require a guaranteed unaltered hard drive image of the computer that actually collected the evidence, this snapshot taken at the time that the Plaintiff's so-called evidence was collected. You also need them to Prove that the time clock on their screen shots matches the time clock that the ISP used when logging the IP address data. THESE ITEMS ARE CRUCIAL in determining that the evidence in question was accurately collected.

Consider, would you accept fingerprint data where you never questioned the technician on how it was gathered, or determined that he was using proper equipment with proper training? Or that the matching method used was the best available?

Would you accept as uncontaminated and properly tested DNA evidence from someone who had never shown any expertise in the area of DNA collection, could not provide proof that he had the equipment or training necessary to properly collect uncontaminated samples, or used a lab with no track record of being able to properly test samples?

How about a policeman who can't produce at trial the radar gun, in the condition it was in at the time he claims he caught your client speeding? There's a case pending right now where GPS evidence disputes the police radar evidence. And it can be very hard with a radar gun to know for sure which car it tagged. Would you accept that unquestioned?

I would hope not!

The evidence, methods, and personnel here require similar scrutiny. There is so much stuff that can go wrong in a personal computer these days, using questionable software (KaZaA in particular, which is the program that SafeNet maintains the use when they say "we went out on the internet like any other use could and found these infringing files offered for distribution"), virus/worm/trojan infections, adware/spyware, inept investigators.

And be sure to get the exact IP addresses the investigators used when downloading the files offered in evidence. There might be logs proving whether or not that IP addresses ever connected to the computers in question. In addition, the investigators may have been using illegal IP addresses in attempts to get around IP Address Blocking -- ev

Re:Truth Is...

[NewYorkCountryLawyer]

Ray, you ask elsewhere what evidence to demand from the RIAA. Most of all you should require a guaranteed unaltered hard drive image of the computer that actually collected the evidence, this snapshot taken at the time that the Plaintiff's so-called evidence was collected. You also need them to Prove that the time clock on their screen shots matches the time clock that the ISP used when logging the IP address data. THESE ITEMS ARE CRUCIAL in determining that the evidence in question was accurately collected. Consider, would you accept fingerprint data where you never questioned the technician on how it was gathered, or determined that he was using proper equipment with proper training? Or that the matching method used was the best available? Would you accept as uncontaminated and properly tested DNA evidence from someone who had never shown any expertise in the area of DNA collection, could not provide proof that he had the equipment or training necessary to properly collect uncontaminated samples, or used a lab with no track record of being able to properly test samples? How about a policeman who can't produce at trial the radar gun, in the condition it was in at the time he claims he caught your client speeding? There's a case pending right now where GPS evidence disputes the police radar evidence. And it can be very hard with a radar gun to know for sure which car it tagged. Would you accept that unquestioned? I would hope not! The evidence, methods, and personnel here require similar scrutiny. There is so much stuff that can go wrong in a personal computer these days, using questionable software (KaZaA in particular, which is the program that SafeNet maintains the use when they say "we went out on the internet like any other use could and found these infringing files offered for distribution"), virus/worm/trojan infections, adware/spyware, inept investigators. And be sure to get the exact IP addresses the investigators used when downloading the files offered in evidence. There might be logs proving whether or not that IP addresses ever connected to the computers in question. In addition, the investigators may have been using illegal IP addresses in attempts to get around IP Address Blocking -- even if your clients don't even know what IP Address Blocking even is. This would be embarrassing to say the least, and might be illegal. Everything the Plaintiffs have done we're told to accept on Information & Belief. You call them Unethical on your very own blog. I wouldn't accept a single thing they told me without the proof to back it up. And if they can't supply the computers and hard drive images used, well spoliation of evidence should apply equally to them as it was used against one unlucky defendant who lost his case on no actual evidence against him. Excellent post, Nom..... I hope you get modded to +5. I will take all of the above into account. At present we are drafting our demand for documents, data, & things.

Since they're only going by filenames...

[okmijnuhb]

...how can they prove the content is what it says it is?
Suppose I filled my shared folder with files renamed as copyrighted mp3's, when they in fact were jpegs or something else?
. Does the MPAA actually download and examine the content of the files?

Re:Since they're only going by filenames...

[Nom du Keyboard]

Does the MPAA actually download and examine the content of the files?

Yes, their investigators SafeNet (formerly MediaSentry) download a couple dozen songs for audio identification (they listen to them to see if it's the copyrighted version of the song in question), and then try to claim that they've proven that some songs are as represented, and that likely all the other ones are too!

A good reason to be using PeerGuardian, or some other effective method of implementing the P2P Blocklist of known P2P enemies. What they can't download, they can't use against you.

Re:No big news here, but...THE NUMBER I'D LIKE TO

[Nom du Keyboard]

I'd love to see statistics on what they have spent to go after filesharers versus what they have recovered in settlements.

The only number I'd like to see is how many sales are truly lost to P2P filesharing.

I don't mean how much RIAA member company profits have declined in the dot.com bust. That was a recession and all types of purchases were cut back. Also, very little new music is really all that exciting, all hype to the contrary.

And I don't mean how much money they've lost because they used to be able to make you buy an entire CD just to get the one song you really wanted, while that rest of that CD is UTTER JUNK! That should have been ruled Illegal Tying long ago, and had them fully slapped down hard.

The industry claims that every download equates to a lost sale. We know that's an outright lie, but no one is making them shut up about it yet as they should.

Re:Everyone can now make good quality recordings..

[iron-kurton]

From what I understand, the labels not only provide the recording studios and marketing money, they also provide producers who, in 99% of pop music today, write and compose the actual songs. The "artists" are nothing more than performers of the songs written by the record producers.

Taste Filter

[GodInHell]

The labels are certainly not the only ones capable of making music, but they sure seem like they create the vast majority of the music that people think is valuable enough *to pay nothing for*. That's their fuction as "taste filters." Essentially - most people don't want to sort through a sack of crap to find one nugget of gold. Music labels do that job of sorting for you. A site which allows music authors and performers to upload - but allows users to do the tagging and rating - would be a nice replacement for that last (poorly accomplished) bit of work.

Of course, you have to convice artists to put up with tags like "sell-out" "shit sucker" and the even more painful "uninspired."

-GiH

Re:Taste Filter

[djasbestos]

It's kinda hard to "filter taste" when your primary motive is to sell sound recordings to which you have purchased the selling rights. If they can work out a sufficiently lucrative record contract (for them, the label), don't be surprised to see "Drunken Austrians Flushing Toilets And Screaming Obscenities" touted as "the next Madonna!" or "amazing compositions...touched my soul" from the standard shills for that kind of crap.

Kind of like SOME (not all) professional, career "musicians" will write complete crap songs...they have to to put bread on the table, whereas an independent or otherwise part-time musician will have a better self-filter, and say "nah, it isn't that good." Marketing really does determine who you see though...I've seen many top notch bands locally (better than some national acts I've seen/heard), but not many people outside of the area will know them. And I know there can only be x number of national acts, but still...

Re:Taste Filter

[GodInHell]

I know what you mean (I've spent some time in Chicago and Des Moines, both towns with great local music communities). But, there's very little difference to a music exec betwen "this will sell" and "this sounds great" when it's an unknown band. Yes.. the big name groups can pump out shit and it will sell - groups looking for their first big break need some kind of sound.

Even in the worst examples of an engineered performer - N-sync or Spice Girls - I may never buy one of their albums - but there are people out there who genuinely enjoy it. There is a difficult gap to bridge between "most people like to have music fed TO them" and "fuck the labels." If you want to end them, you need to provide a replacement that works for Marge the cog in accounting that buys 3 cds a year, and her 20 million clones.

-GiH

It is an online media distrubution system

[WK2]

"online media distribution system"

That is a pretty redundant term. Is not everything distributed via a medium?

media != audio/video ;; medium == distribution method ;; media == mediums

Re:Everyone can now make good quality recordings..

[NewYorkCountryLawyer]

From what I understand, the labels not only provide the recording studios and marketing money, they also provide producers who, in 99% of pop music today, write and compose the actual songs. The "artists" are nothing more than performers of the songs written by the record producers. Not so. The producers are independents, often entertainers themselves.

Re:Generalize. Fitting Punishment.

[zildgulf]

If other judges look at this decision and follow, the game is over as it should be. This judge has come close to understanding that the charges themselves are unsupportable

Not yet, but I do think many of the RIAA cases (RIAA meaning a "suing machine" syndicate created by Capital Records, Atlantic Records, Sony BMG, etc.) might be in serious jeopardy now. I think the RIAA thought that their last win (which was easier to get than shooting dead whales in a barrel with a Tommy-Gun) would somehow be duplicated in very unlike cases; cases where they don't have the solid evidence that this particular real-life person did the act they allege.

Re:Everyone can now make good quality recordings..

[Anonymous Coward]

I hope realize that there is more than just "pop" music out there. There are so many different genre's, why cater to one genre to try and prove your point?

Re:Everyone can now make good quality recordings..

[UncleTogie]

The "artists" are nothing more than performers of the songs written by the record producers.

What makes you think I didn't include songwriters in the "artist" category...?

As for the performers? Look up performing arts for an idea of why people would consider them "artists".

"Big bang" approach?

[sm62704]

I thought we were talking about the RIAA, not getting laid (the "big Bang" refers to my 300 pound ex-girlfriend, of course).

Oh wait, this is about the RIAA's lawyers, I guess we ARE talking about getting fucked!

More seriously (or less humorously), the headline is offtopic and completely false. Your not having any proof of my wrongdoing is NOT my "getting off on a technicality". You've never robbed a bank, so is your never having been convicted of bank robbery "getting off on a technicality?"

We're supposed to be innocent until proven guilty. It's thinking like this, where lack of evidence of your guilt means you "got off on a technicality", is what's got us heading towards the police state I maintain we are already in.

For those of you who disagree that the US already is a police state, I should blog about how my 4th amendment rights have been violated twice this year alone, once on Memorial day (ironically, the day we supposedly honor those who died defending the Constitution) when the cops searched my garage without warrant, consent, or even my knowledge (they later told me they had) looking for another ex-girlfriend (the skinny, flat chested, bow legged toothless one) who had been walking around with a broom looking for my house and scaring the neighbors (she does kind of look like a witch).

If anybody actually sees this comment (it's yesterday's story), I'm sure to get a "well, if you'd not pick such losere as girlfriends (although they'd spell it "loosers") you wouldn';t have trouble wit hthe cops - which is exactly my point. I'm a law abiding citizen, I should have no trouble with the authorities regardless of who I associate with.

-mcgrew

Re:"Big bang" approach?

[NewYorkCountryLawyer]

More seriously (or less humorously), the headline is offtopic and completely false. Your not having any proof of my wrongdoing is NOT my "getting off on a technicality". You've never robbed a bank, so is your never having been convicted of bank robbery "getting off on a technicality?" We're supposed to be innocent until proven guilty. It's thinking like this, where lack of evidence of your guilt means you "got off on a technicality", is what's got us heading towards the police state I maintain we are already in. Keep saying stuff like that and you'll never be able to get a job at the RIAA, or with SONY BMG, Warner Bros, EMI, or Vivendi/Universal.

Re:"Big bang" approach?

[sm62704]

Thats the nicest thing anybody's said to me all week! Thanks! But I'm hoping I'll not have to look for any kind of work again, I'm planning on retiring in a few years.

Please keep up the good work, I salute you.

You illiterate kids *sigh*

[sm62704]

"system" is the noun. "Online media distribution" is a multi-word adjective. And if you loose a case, it means you lost on purpose. Look it up in a dictionary; "loose" is a completely different verb than "lose". If you loose your dog, you may lose him.

Yes, you less than literate nerd wannabes often annoy me (and it's Monday, I never quite got the hang of Mndays). Are there no native English speakers here?

Mod this post "pedantically offtopic"

-mcgrew

Re:Generalize. Fitting Punishment.

[Anonymous Coward]

Hey that case ain't even over yet. It's being appealed. And the RIAA is still spending money on that case. And the defendant is making any more money to cover further enforced judgments against her. And I think it will be highly likely found that statutory damages for copyright infringement are unconstitutional violation of the 8th Amendment. If it got to the Supreme Court I would see this as an easy unanimous 9-0 vote to rule the copyright statutory damages are unconstitutional. This will completely strip away the absurd damages sought, and the RIAA will have to spend thousands of dollars to sue for $0.99 actual damages. And that will be the de facto end of economic feasibility of mass lawsuits against individual file sharers.

This case is still an active battle front against the RIAA. They haven't come close to having "won" that last case by a long shot.

Turn the tables!

[shentino]

"RIAA attorneys have been getting away with a lot of questionable proceedings (and outright lying to the court, any court) and I'm hoping maybe the judiciary is finally catching on. That's the only way we'll put a stop to this."

I'll say it again: Why are judges even letting the RIAA get away with lying in court?

To hell with mere common sense, the judicial system needs to grow a damn backbone and go after the RIAA hard for FELONY PERJURY.

Just look at Arther Andersen...it got slapped SILLY for shredding Enron financials. Soon after getting banned from auditing, it went bankrupt.

At a minimum, I would like to see the RIAA get the CRAP fined out of it.

No company should get away with criminal conduct...not even the RIAA.

Speaker of the truth

[Anonymous Coward]

He trolls all kinds of discussions, not just RIAA ones, and so is probably just your average troll.
I think I put him on my 'foes' list a long while back. When logged in, obviously.

Online Media Distribution System

[MarkAyen]

I don't know about that. It's an online system created for the distribution of media. By using that term (with a relatively unambiguous English meaning) rather than the more specific "peer-to-peer file sharing network" (linguistically, a more nebulous term), the RIAA's lawyers are creating a working vocabulary that transcends the specific technology used this this case that could be applied to future (as yet unrealized) online systems for -- er -- distributing media.

No one said the bastards weren't clever.

Re:Everyone can now make good quality recordings..

[iron-kurton]

So I lose another battle. Damn you, sir.

Re:Everyone can now make good quality recordings..

[NewYorkCountryLawyer]

So I lose another battle. Damn you, sir. Someone on Slashdot actually admitting he was wrong?

I commend you, sir.

Hats off.