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.
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?
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.
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.
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.
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.
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.
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.
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?
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.
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?
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.
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.
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.
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.
1. Our legal system does not permit damages to be based on speculation.
2. As to what evidence the RIAA needs to prove an actual case of actual copyright infringement, I think you know what that would be, and I think the RIAA's running dogs -- er, lawyers -- know that too. The only reason they haven't made out proper cases is because they have no case. Copyright infringement cases aren't anything new, Sir. What is new is bringing copyright infringement cases without any evidence that the defendant committed a copyright infringement.
You are correct. There was absolutely zero evidence of any actual damages. Although I would concede that the actual damage for infringement of 24 song files would be in the neighborhood of $8, or 1/30,000 of the award.
But the RIAA didn't actually have to prove any infringement; the jury instruction freed them from that burden.
I seriously doubt that, if there is a conflict between the Constitution in the Netherlands and a statute in the Netherlands, the courts cannot decide that the Constitutional provision controls.
I don't understand why people are so emotionally charged on this site. Before passing down judgement we need know how this will actually be implemented. It doesn't matter how it's implemented if the companies doing it can't be trusted. These companies can't be trusted.
Case in point: on the issue of ripping one's own cd for personal use, at the oral argument before the US Supreme Court in MGM v. Grokster, when it suited their advantage, they said that that type of copying was fine. Then, on the witness stand in Capitol v. Thomas last week, they said it was not fine, it was a copyright infringement.
It doesn't matter how they say they will "implement" it; they are not someone I'd want to do business with.
By the definitions set forth in print and media by the law teams for the RIAA, just ripping a copy of a CD in a computer constitutes theft. Thats their words.
It apparently doesn't matter that the "fair use" doctrine is in play here either. They are attempting to rewrite law as they go along and waiting for someone high up to challenge them on it.
They will ultimately kill the traditional business model of the record/CD medium, and also the rights by any human to hear any of the legacy music until they decide when and where. You have accurately described the Law According to these record companies.
Your only remaining music WILL come from new artists writing and performing songs by which the RIAA cannot come by and park on. Which is correct, except that old artists are dumping them also. See, e.g., Nine Inch Nails, Radiohead, Madonna. Now that the lawsuits have received so much publicity, and now that it's clear that these record companies are vestiges, I believe you're going to see many or most major artists decline to renew as their contracts run out. There is simply no reason any more to sign the oppressive recording agreements that have been the lifeblood of these now failing companies.
This has little if anything to do with the RIAA: they're just a just the enforcement arm of the big studios, and they will do what they're told. In a sense, the RIAA has nothing to do with the RIAA.
The RIAA is a trade association.
Its four biggest members decided to combine together and pool their copyrights in a way that would violate antitrust law, so they decided to use their trade association as a "protective shield" for their otherwise unlawful activity. No other members of the RIAA have anything to do with the litigation campaign. And the RIAA is not an "enforcement" organization at all. If you look at its charter I doubt you'll see anything about that in there.
The "RIAA" you and I think of when we think of the RIAA litigations isn't the RIAA at all. It's SONY BMG, Universal Vivendi, EMI, and Warner Bros., 4 dying corporations.
I don't trust UMG any further than I can throw them. Then offering free music is like a fox offering 'free meals' for hens. At this point, there is only one thing Universal Music Group could do that would make me happy - and that would be GO BANKRUPT. On the day they finally fall apart, I'll be the first person dancing on their proverbial grave and rejoicing. Let me give you fair warning, Lunar. I'm going to try to get there ahead of you. I want to be the first. May the best man win.
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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.
Copyright infringement cases are tort cases, not contract cases. When is the last time you saw a default judgment entered on a negligence claim?
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.
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.
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?
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.
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.
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.
1. Our legal system does not permit damages to be based on speculation.
2. As to what evidence the RIAA needs to prove an actual case of actual copyright infringement, I think you know what that would be, and I think the RIAA's running dogs -- er, lawyers -- know that too. The only reason they haven't made out proper cases is because they have no case. Copyright infringement cases aren't anything new, Sir. What is new is bringing copyright infringement cases without any evidence that the defendant committed a copyright infringement.
Hellooooooooo....... this is a rule from the United States Supreme Court. In case you want to read about it here's the brief.
You are correct. There was absolutely zero evidence of any actual damages. Although I would concede that the actual damage for infringement of 24 song files would be in the neighborhood of $8, or 1/30,000 of the award.
But the RIAA didn't actually have to prove any infringement; the jury instruction freed them from that burden.
It's got nothing to do with the 8th amendment, this is not a criminal case. This is about the due process clause.
I seriously doubt that, if there is a conflict between the Constitution in the Netherlands and a statute in the Netherlands, the courts cannot decide that the Constitutional provision controls.
it's a motion to set aside the verdict, which is quite different than an appeal.
An appeal is to a higher court.
This is a motion directed toward the trial court.
Case in point: on the issue of ripping one's own cd for personal use, at the oral argument before the US Supreme Court in MGM v. Grokster, when it suited their advantage, they said that that type of copying was fine. Then, on the witness stand in Capitol v. Thomas last week, they said it was not fine, it was a copyright infringement.
It doesn't matter how they say they will "implement" it; they are not someone I'd want to do business with.
The RIAA is a trade association.
Its four biggest members decided to combine together and pool their copyrights in a way that would violate antitrust law, so they decided to use their trade association as a "protective shield" for their otherwise unlawful activity. No other members of the RIAA have anything to do with the litigation campaign. And the RIAA is not an "enforcement" organization at all. If you look at its charter I doubt you'll see anything about that in there.
The "RIAA" you and I think of when we think of the RIAA litigations isn't the RIAA at all. It's SONY BMG, Universal Vivendi, EMI, and Warner Bros., 4 dying corporations.