Doesn't this set a precendent for individuals to defend themselves against the RIAA too? Yes, many of the issues will be identical. So it is important for universities and students to lead the way in fighting back.
Ray, Maybe the students are reading Slashdot, and your blog. Even more importantly, it seems some of the judges are starting to actually read the RIAA's papers.
Forgive my near-total ignorance on matters of copyright law and my failure to RTFA, but if these college kids' cases are attacking the basic underpinings of the RIAA's case, is there a chance that this will benefit the regular folks who are under attack? Yes.
Have you received communications (either email or any other form) from other lawyers (from either USA or foreign countries) concerning the RIAA lawsuits? specifically expressing their interest on being informed about the "other side of the coin". I am constantly receiving communications from lawyers all over the USA and the world about these cases, but not about "being informed"; all they need to do be "be informed" is read my blog, which basically reports every substantive thing of which I am aware.
Countersuits are one way to deal with this. Though, I imagine most people just want to get everything over than enter another legal battle. Litigation is never a good solution to anything. It should always be a last resort. Unfortunately the RIAA doesn't see things that way.
You missed the one a week or two ago where they were about to start going after Harvard - and Harvard's response was, in effect, "get bent"? Not so. They've never gone after Harvard and probably never will.
That's because it's not in the RIAA's playbook to pick on someone who can fight back.
The articles you're thinking of, by Harvard Law School profs, "Universities to RIAA: Take a Hike" and "Protect Harvard from the RIAA", urged Harvard and other universities to fight back if the RIAA were to come knocking.... but so far it hasn't come knocking at Harvard.
And don't hold your breath waiting for it to do so.
The problem seems to be growing the awareness of these basic facts among the judiciary: cases like this can only help in that regard, I'd think. Those of the legal mind are fond of informing laymen that the law is complex and ever-changing and that only one who is properly trained could possibly comprehend its intricacies. I personally believe that the law is often more complex than it needs to be (and that is certainly no accident) but, okay, I'll buy that argument. As an engineer I cheerfully admit that the law is an arcane mystery, and I would certainly never set foot in court without proper representation.
However, the truth is that the global network and the technologies behind it are pretty goddamn complex as well, and change more often than the average trial lawyer changes his boxers. Gross oversimplifications and prevarifications regarding network technology, such as those pulled out of thin air by the RIAA's so-called "expert witness", have so far resulted in several severe miscarriages of justice. Unfortunately, while it is a necessity to have legal representation in a technical case, there seems to be no corresponding requirement that the legal beagles involved have a clue about technological underpinnings of said case. Given how successful the RIAA has been with the testimony of Mr. Linares, it's apparent that expert witnesses are of no help when the people making the legal decisions don't have the mental knowledge base to tell the wheat from the chaff. The Linares dribble -- like the Whitehead dribble which preceded it -- "succeeded" only because it was used only in ex parte cases, where there was no opposition. Now that opposition is starting to form, and now that judges are starting to rejecteven the ex parte motions, awareness may be growing among members of the judiciary.
Other thing heard in an RIAA conference room...
"Hey, didn't the whole slashdot community say the exact same thing [slashdot.org] last month?"
We could have at least gotten credit for it. Indeed it has. And on more than one occasion.
And I got news for you, that was heard in an RIAA conference room.
Only thing, they're not good listeners, as you may have noticed already.
If I'm reading that right, that's every CD or DVD in his house and every one he's rented from Blockbuster in the last couple of years. Then every drive from his employer, employer's ISP and his home ISP.
There is just about no possible way to comply with this order. I agree. It's way too invasive.
Well, my original point was that generally, I had assumed that no matter what portion of a case you're in, you need at least some rationale for demanding evidence.
I flatly reject the idea that anyone who is a copyright holder can drag anyone else into a lawsuit and immediately demand to see all of the audio files on their computer..................
I want to know if there is anything that has to happen, other than the plaintiff proving that they own the copyright to some work which the defendant may or may not have ever heard of before.
Maybe there's no avoiding it, but at this point, it's still a lot of hassle and expense to deal with a truly absurd case, even if you won at every step during discovery -- meaning you managed to prevent them from rifling through your personal files because they kind of, sort of suspect that you have something.
I'm not a lawyer either, and I admit the possibility (probability?) that I've missed something obvious. Then again, we humans miss obvious things so often, even in our own fields, that I should probably just put it in my sig. You haven't missed anything, Sanity.
Harass their employer and point the finger at the employee.
About 5 minutes after the first phone call, the boss says to the employee:
"I don't know what you did and I really don't give a sh*t. We're running a business here and you're keeping us from getting things done. This is an at-will employment state. Got me?"
(In Montana, they'll just call you into the office 3 times, document it, and THEN fire you)
Geez, even the scum of the earth, collection agencies, figured that one out!
It's incredibly effective, there's NO recourse, and it hurts everyone.
That's why it's explicitly illegal to do (for collection agencies).
Hizzonner needs to pull his head out. Yes it was really wrong of the judge to allow them to play that game.
I meant anyone who believes that a "free market" is the answer to all of life's ills. There are quite a few of those out there, but they reproduce at a lower rate than the rest of us, so I expect them to be extinct after the next few cycles. Now you've gone and given me some hope for a better future.
This is par for the course for the discovery process in the United States. You can force your opponent to produce ANYTHING other than articles covered by attorney-client privilege as long as there's a plausible way that it could lead to evidence admissible at trial.
And this is why almost the entire rest of the world thinks our discovery process is barbaric. Except that the judge applied that rule only in one direction. He made the defendant bare his whole life. He required NOTHING of the plaintiffs.
The former. While the decision here might have been more favorable to the plaintiff than to the defendant, I don't think it was unreasonable, having looked over the documents linked to above. I'm sorry to hear you say that; I think it was an extremely unfair and unreasonable decision.
I think it's pretty obvious that the definition of "free market" in this country now is "market where the only regulation the government does is to help entrenched wealth". He probably should have used parentheses when he said free market though, to make it clear. Agreed.
He didn't mean "free market", he meant "so called free market".
Bush/Reagan "market" economics is to free markets as Naziism is to democratic socialism.
I'll give you this, however: that was the stupidest thing I've seen on/. all week. Which, the misguided reference to the royalty judges, or the decision in Atlantic v. Shutovsky.
It's in the domain of monitored free speech, as is everything on the Internet, thank you department of homeland security.
Hold on, it looks like there's a swat team in my back yarrrr...... It's probably just the uniformed RIAA "investigators".
Last I checked, the RIAA has never ever gone after downloaders, only people sharing songs. For that purpose it doesn't matter much where the songs came from, since you certainly didn't buy the right to distribute them. Since it's a civil case and it means "preponderance of evidence", you need something that'll negate their weak evidence. Options:
a) It's not the song you claim it to be (most P2P networks have hash checks though)
b) It's not the correct IP address (the ISP must have made a mistake)
c) It's not any of my computers (open WiFi, guest using my network)
d) I wasn't in control of the computer, a trojan must have done it
e) I wasn't in control of the computer, my friends/family/guests must have done it
f) I wasn't aware I was sharing copyrighted works (but that only limits the liability)
Their evidence leaks all ways, but they are trying to patch it up in all directions. Evidence?
"Stand and deliver, your money or your life..." They could drag just about anybody into "court" for this and get them to account for every media file on their computer... nobody who's had a computer for any period of time would be innocent here... everybody does it... anyone who says they don't is a liar... what we need are switched on jurors to do their duty and return not guilty verdicts... Only one problem with that. These cowards always back down just before the jury trial. There aren't any jury trials. They run up the legal bills as much as they can, and then run away with their tail between their legs.
Are you authority-loving, pro-corporate, free-market types getting this? Is the depth to which our system has sunk showing up on your shallow radar yet? You think it's OK for this industry organization to use this type of life-ruining intimidation tactic in order to protect their profits?
At what point do you decide that people are more important than quarterly stock prices? And before you pull out that old chestnut about what's good for GM being good for America, remember that not one of these corporations any longer has the least bit of allegiance to the USA. Thank you, PopeRatzo.
This is a horrific application of legal theory, in fact it flies in the face of US court proceedings. It's called "burden of proof [wikipedia.org]" and without it you are guilty until proven innocent, literally you are tasked with proving yourself innocent.
It's a sad day indeed when a privately owned entity can practice McCarthyism [wikipedia.org] and nobody notices. Welcome to the United Corporations of America, an experimental perversion of capitalism, totalitarianism, and military dictatorship.
Free speech is all we have left. It is truly a sad day indeed.
The raping of your legal system, and a complete lack of the political world of caring. In no way would the founding fathers see this for anything other than what is it.... A classic shakedown to get cash for a large company... In this country we have to come to terms that Intellectual Property is not something you can force people to pay you whatever you want. There must be balance... Thank you tgatliff. I share your sense of outrage at this decision.
I see your point, but I guess one problem is that the RIAA can argue (reasonably if mendaciously) that they can't bring the John Doe cases in an appropriate venue because they don't know where they are. Actually... no they could not make that argument.
Once one has an IP address, one can identify the state and the region of the state in which the user of the IP address is located. There are websites that are freely available to the public that provide this information. So the RIAA could easily bring the suit in the right location.
But that's not the way the RIAA lawyers work. They do things in the sneakiest and most unfair method that they can get away with.
Judge Garcia, in the New Mexico case, realized this about them right away, when he said in so many words "whoa...cowboy...why on earth is this being done ex parte when it would be pretty easy to give the defendants prior notice, and the federal rules require you to give them prior notice?"
Um, the RIAA hasn't been using criminal courts in the US to go after file sharers. So the situation isn't at all analagous. Actually I think it is analogous in one sense.
The RIAA's opening gambit is to get the name and address of the person who paid for an internet access account, and then to sue that person.
In the US it brings fake copyright infringement lawsuits against "John Does", with no intention of prosecuting those cases, but with the sole aim of getting the name and address information. They bring the action hundreds or thousands of miles from where the John Doe lives and could actually fight back, in a court where they could never get jurisdiction over that John Doe, and they bring on the discovery motion ex parte so that the defendant never finds out about until it's too late. (Process described in my article How the RIAA Litigation Process Works). They don't tell the judge it's a fake case. They just pretend it's a regular copyright infringement case, and that this is just some early discovery in the case. Then after the order is signed authorizing them to subpoena the ISP, they drop the sham case.
In Germany they've been using -- up until now -- sham criminal proceedings to accomplish the same result, because in Germany they couldn't have gotten the identity information in a civil case. The German judges and prosecutors have finally realized how they were being used, and have put a stop to it.
It appears that some of the United States judges are starting to catchon as well.
Slashdot Mirror
Absolutely.
That's because it's not in the RIAA's playbook to pick on someone who can fight back.
The articles you're thinking of, by Harvard Law School profs, "Universities to RIAA: Take a Hike" and "Protect Harvard from the RIAA", urged Harvard and other universities to fight back if the RIAA were to come knocking.... but so far it hasn't come knocking at Harvard.
And don't hold your breath waiting for it to do so.
And I got news for you, that was heard in an RIAA conference room.
Only thing, they're not good listeners, as you may have noticed already.
Judge Castel made the mistake, not you.
Thank you PopeRatzo.
He didn't mean "free market", he meant "so called free market".
Bush/Reagan "market" economics is to free markets as Naziism is to democratic socialism.
Did you say evidence?
They don't have any evidence.
Once one has an IP address, one can identify the state and the region of the state in which the user of the IP address is located. There are websites that are freely available to the public that provide this information. So the RIAA could easily bring the suit in the right location.
But that's not the way the RIAA lawyers work. They do things in the sneakiest and most unfair method that they can get away with.
Judge Garcia, in the New Mexico case, realized this about them right away, when he said in so many words "whoa...cowboy...why on earth is this being done ex parte when it would be pretty easy to give the defendants prior notice, and the federal rules require you to give them prior notice?"
The RIAA's opening gambit is to get the name and address of the person who paid for an internet access account, and then to sue that person.
In the US it brings fake copyright infringement lawsuits against "John Does", with no intention of prosecuting those cases, but with the sole aim of getting the name and address information. They bring the action hundreds or thousands of miles from where the John Doe lives and could actually fight back, in a court where they could never get jurisdiction over that John Doe, and they bring on the discovery motion ex parte so that the defendant never finds out about until it's too late. (Process described in my article How the RIAA Litigation Process Works). They don't tell the judge it's a fake case. They just pretend it's a regular copyright infringement case, and that this is just some early discovery in the case. Then after the order is signed authorizing them to subpoena the ISP, they drop the sham case.
In Germany they've been using -- up until now -- sham criminal proceedings to accomplish the same result, because in Germany they couldn't have gotten the identity information in a civil case. The German judges and prosecutors have finally realized how they were being used, and have put a stop to it.
It appears that some of the United States judges are starting to catch on as well.