If you'd read TFA you'd have known that as to the defendant who was a "friend" -- the kid who came in and installed it on Mrs. Santangelo's computer without her permission -- he was only sued for $1.
By "bad actor" I meant a person with deliberate and pernicious behavior, as, e.g., a person pirating large numbers of exact copies to sell for commercial purposes, or a competitor deliberately trying to rip off the copyright holder.
Each and every link in their "evidence" is based on assumptions, not fact.
Apparently ignorant about wireless, routers, and subnets, their arguments take the erroneous position that every IP address points to a unique computer at a given moment. And that they know who was standing in front of it. Even if they were already dead. Lest anybody doubt what you just said, I thought this might be a good time to supply a link to the deposition testimony of the RIAA's "expert".
There are a lot of bizarre statements about the "law" being made here by people who don't know anything about copyright law but are pretending they do. Don't be misled by them. Just read the statute, 17 USC 106(3).
Don't you think that deliberately lying to a Judge is worthy of a Rule 11 motion?
Absolutely. Filing one, anyway. It didn't seem this judge liked hearing about a hypothetical one. I would guess it's something he hears about more often than he likes.
No matter. Ten tons of credit to you for the good fight you are fighting. 1. I have no interest in making Rule 11 motions. I just wanted the truth to be told.
I hadn't considered this previously, but since distribution is the copyright holders right and no one else's, does that make the resale of CD's a civil (or even criminal) offence? After all its distribution. The answer is no (I'm sure the record companies would prefer it otherwise) but I am unclear as to why that is, and how that principal (which clearly violates the rights of the copyright owner in fact if not in spirit) can be applied to downloading music, films or books you already own a copy of. 17 USC 109(a):
(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
Let's be clear here "distribution" is only one of the enumerated copyright rights. Your scenario invokes at least one other right: duplication. The other party's installation, use, etc. would probably raise yet others.
Also, even reading Nimmer's explanation of the distribution right, you should note how many issues there would be: "limited group" (how limited?), "limited purpose" (what was the limited purpose of your distribution?), on and on. Thank you for reading carefully. Hopefully, the Judge will do the same.
Why the heck did you get into talking about Rule 11 motions with the judge in White Plains? Because Mr. Reynolds stated to the Judge that their investigator had "detected an individual", when in fact his expert witness has testified that their investigation does not detect individuals.
Don't you think that deliberately lying to a Judge is worthy of a Rule 11 motion?
I simply wanted Mr. Reynolds to correct his misstatement.
I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.
The RIAA is relying on an alleged infringement of the "distribution" right.
But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief (pdf), esp. pages 3-4.
Is the entire basis of the RIAA claims in all of these cases striking anyone else as being entirely based on "it may have been" scenarios being used as proof? Yes.
Ray, Ray, Ray, you really should have learned by now. Don't leave important information in the article; no one makes it that far. If it's important, put it in the comments; that's all anyone here reads. Think of us as cheap barristers; we may listen to what you say, but we almost certainly won't read the brief before offering our expert opinions on it... :)
Actually, you happen to be wrong about that. That's one of the amazing things about/. The first time I ever came here, I was astonished to find this web site community where people were engaged in various threads which were basically debates about the Patti Santangelo case. People were supporting their arguments with citations from various parts of the transcript, and from legal documents that had been filed. I was astonished.
Correct, "piracy" is not right. But the rampant ripping off of the RIAA and other such companies/organizations is more so.
I put piracy in quotes as it is not really piracy. Piracy would be downloading songs, burning to disk, and selling for more than the medium cost - for example out of a car trunk.
Downloading music to put on your MP3 player for personal use is copyright violation, but is not piracy. Allowing others to download from you for free is copyright violation (unauthorized distribution) but is not piracy. Thank you for bringing to people's attention the meaning of the term 'copyright piracy'; the RIAA has been deliberately trying to distort the meaning of the term by suggesting that every act of copyright infringement is an act of 'copyright piracy', while in fact the term has a well known meaning among copyright lawyers, which is wholly inapplicable to any of the RIAA's cases against consumers.
I would just like to clarify, however, that simply "Allowing others to download from you for free" would not necessarily be an "unauthorized distribution" under the Copyright Act, the elements of which are spelled out in 17 USC 106(3). To qualify as a Copyright Act "distribution" there must be (I) dissemination of (II) actual copies (III) to the public (IV) by sale or other transfer of ownership, or by rental, lease, or lending. See reply memorandum of law in Warner v. Cassin (pdf), especially pages 3-4, and initial memorandum of law (pdf), especially pages 3-6.
"defendants' attempts to dismiss as many of the theories as they can"
No kidding. Sues for "negligence, fraud, negligent misrepresentation, federal and state RICO, abuse of process, malicious prosecution, intentional infliction of emotional distress, violation of the Computer Fraud and Abuse Act, trespass, invasion of privacy, libel and slander, deceptive business practices, misuse of copyright law, and civil conspiracy."
If I were sitting on this I'd take the above as a signal they don't have a strong case on any specific point, so they're throwing everything and the kitchen sink into the suit hoping that something will stick. Well you would be taking the wrong signal. All it signals is that lawyers are trained to be careful and include all of their theories.
Am I correct in thinking that if she decides to settle without this coming to a conclusion in court, that nothing of any good would come out of this for anyone else that might choose to go on the offensive against the **AA? Can you use the verdict of a class action suit as a precedent for another class action suit, or is that kind of thing only reserved for other types of cases? If she did decide that she had a good chance of winning, and stuck it out to a verdict, and if it was decided in her favor, would that open the door for others to use that as precedence in their own class action suits against the **AA? Most likely any settlement would involve a consent decree against the RIAA's practices and would include a settlement fund, so yes a lot of good would come from it. The consent decree would probably have a permanent and lasting value.
By the way, before anyone says Kazaa is pure as the driven snow, keep in mind that the Grokster case pretty firmly established that it IS their responsiblilty as far as US law is concerned to police copyright infringement on their network. From what I understand, all the Grokster decision said was that a file sharing network couldn't advertise the ability to get download copy-written music for free. I haven't heard anything about them having to police their network. GP is totally wrong. Grokster held nothing of the kind.
You're not exactly right either.
Here's (pdf) the case. If I had to sum it up I would say that what it says about the p2p software companies is that they can be liable for their customers' copyright infringement if and only if they affirmatively induce or encourage copyright infringement.
Well, this is just my opinion, and I may be in the minority in thinking so... But if the only way to enforce a particular law is for a commercial group to sue indiscriminately yet selectively, and that numerous law-abiding citizens become harassed, fearful, or otherwise disrupted through such activity, then the law is a bad law, and attempts at enforcement should cease. Well let me put your mind at rest.
1. There are plenty of other ways to enforce copyright law.
2. Ganging up, as they are doing, as a "commercial group", is copyright misuse, and some of their conduct is actionable as a violation of antitrust law.
3. Normal copyright lawyers don't sue, they send cease and desist letters. And then they sue if they cannot get a cease and desist agreement, or if the defendant is a bad actor, but they don't routinely sue everyone who may have infringed a copyright and was not willing to pay thousands of dollars in extortion -- er, settlement -- money.
4. No normal lawyer would ever sign off on a case as poorly and as illegally investigated as the RIAA cases.
I.e., it's not the law that's bad, it's the RIAA law-breakers that are bad.
I agree, but how? NewYorkCountryLawyer, where can we direct our support and/or funds??? Ms. Andersen's attorneys. Their contact information is at the top of the first page of the amended complaint.
What are your estimates of this case's success?
I'd rather hear it from the expert than Slashdot's myriad self-described ones. My guess is that there will be substantial motion practice involving (a) defendants' attempts to dismiss as many of the theories as they can, and (b) certification of a class. If at the end of all of that a class is certified by the Court, the RIAA has a big problem, and will probably have to come to terms with Ms. Andersen and those she represents.
The vast majority of class actions are neither won, nor lost, but settled. In this case, I would imagine that the defendants' shareholders are already starting to wake up to the reality that they have been played for suckers by their lawyers, and the companies will be most eager to settle.
'm all for taking responsibility for ones actions. There's nothing that bothers me more than someone falling from a ladder and suing the manufacturer. I'm also for protecting the innocent.
If in fact all this was taking place behind her back and without her knowledge I feel she has every right blaming whomever. Blame the people who wrote the software. Blame the person who installed it. Blame the ISP for not blocking it. She's entitled to an aggressive defence. If she didn't do it, had no idea it was happening then go right ahead and blame everyone else. It seems to me all she's saying is if someone's at fault, it's not me, let's find out who....Seems reasonable to me. Glad to see someone who actually reads TFA.
If the user presses a button whose standard function is to stop what the program's doing, and the program goes away without any warning it's still running, I don't think it's unreasonable for them to assume it has in fact quit - that would be my assumption, and I wouldn't check the system tray if I didn't know it would be there. By the way, the defendants here are a 16 year old and a 20 year old, who were 12 and 16 at the time of the alleged "infringement".
This is a poor move. The record companies don't like her. Here ISP, Kazaa, and her friend is not going to like her after she drags them into a senseless lawsuit. We don't like her. Friends are helpful in this world. Screwing over everyone you can think of to weasel out of a little trouble is not the right way to make friends. Please tell me you were kidding. Please tell me you don't think Kazaa and AOL are these kids' friends.
Kazaa, after saddling its customers with all kinds of secret malicious programs, and a program that shared files even when customers didn't know it was sharing files, made a settlement with the RIAA that made no provision whatsoever for the RIAA to stop pursing Kazaa's customers. With friends like that, who needs enemies?
Slashdot Mirror
If you'd read TFA you'd have known that as to the defendant who was a "friend" -- the kid who came in and installed it on Mrs. Santangelo's computer without her permission -- he was only sued for $1.
By "bad actor" I meant a person with deliberate and pernicious behavior, as, e.g., a person pirating large numbers of exact copies to sell for commercial purposes, or a competitor deliberately trying to rip off the copyright holder.
From my experience there's been very little traffic there at that time of day.
The courthouse is easily accessible by train, Metro North from Grand Central and Harlem. It's a 10-minute walk, only about 5 or 6 longish blocks.
There are a lot of bizarre statements about the "law" being made here by people who don't know anything about copyright law but are pretending they do. Don't be misled by them. Just read the statute, 17 USC 106(3).
2. Thank you for your kind words.
(a) Notwithstanding the provisions of section 106 (3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
Don't you think that deliberately lying to a Judge is worthy of a Rule 11 motion?
I simply wanted Mr. Reynolds to correct his misstatement.
I notice that the trolls are out in force on this one, so let me point out something. There is nothing in the Copyright Act that prohibits "sharing" of copyrighted material, or "making available". We do it all the time, every day, when we play music for a friend, have a party, have someone over to watch our DVD, etc.
The RIAA is relying on an alleged infringement of the "distribution" right.
But "distribution" under the Copyright Act means (1) disseminating (2) actual physical copies (3) to the public (4) through sale or other transfer of ownership or rental, lease, or lending. See brief (pdf), esp. pages 3-4.
Actually, you happen to be wrong about that. That's one of the amazing things about
I think it was this post. See, e.g. this comment, this comment, this one, this one, and this one, if you want to get the flavor.
Some more examples here, here, here, and here.
I would just like to clarify, however, that simply "Allowing others to download from you for free" would not necessarily be an "unauthorized distribution" under the Copyright Act, the elements of which are spelled out in 17 USC 106(3). To qualify as a Copyright Act "distribution" there must be
(I) dissemination of
(II) actual copies
(III) to the public
(IV) by sale or other transfer of ownership, or by rental, lease, or lending.
See reply memorandum of law in Warner v. Cassin (pdf), especially pages 3-4, and initial memorandum of law (pdf), especially pages 3-6.
You're not exactly right either.
Here's (pdf) the case. If I had to sum it up I would say that what it says about the p2p software companies is that they can be liable for their customers' copyright infringement if and only if they affirmatively induce or encourage copyright infringement.
But read the case yourself; you really should.
1. There are plenty of other ways to enforce copyright law.
2. Ganging up, as they are doing, as a "commercial group", is copyright misuse, and some of their conduct is actionable as a violation of antitrust law.
3. Normal copyright lawyers don't sue, they send cease and desist letters. And then they sue if they cannot get a cease and desist agreement, or if the defendant is a bad actor, but they don't routinely sue everyone who may have infringed a copyright and was not willing to pay thousands of dollars in extortion -- er, settlement -- money.
4. No normal lawyer would ever sign off on a case as poorly and as illegally investigated as the RIAA cases.
I.e., it's not the law that's bad, it's the RIAA law-breakers that are bad.
I don't think I said 50%. I think I said that less than 50% of the defendants are people who actually did engage in file sharing.
The vast majority of class actions are neither won, nor lost, but settled. In this case, I would imagine that the defendants' shareholders are already starting to wake up to the reality that they have been played for suckers by their lawyers, and the companies will be most eager to settle.
Update:
Judgment was entered against the RIAA on August 16th. It has been reported that the RIAA intends to just pay it.
Kazaa, after saddling its customers with all kinds of secret malicious programs, and a program that shared files even when customers didn't know it was sharing files, made a settlement with the RIAA that made no provision whatsoever for the RIAA to stop pursing Kazaa's customers. With friends like that, who needs enemies?