Neither you nor I know that Mr. Wilke's "pockets" are "deep". Most likely his lawyer, Daliah Saper, of Chicago, is taking her chances here, and not receiving her normal compensation.
All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.
Your are correct that it was only 'one side of the story'. However, it wasn't the defendant's side. It was the testimony of a 15-year-old witness, who testified under oath that she had previously 'misspoken' under oath at the behest of the RIAA's lawyer.
I don't trust my memory anymore, but my recollection is that the RIAA never disputed what she said, and that a quiet, confidential settlement was abruptly entered into. If I can find out that they did rebut it, I'll try to get the document posted, but I'm pretty sure this was something that actually did happen.
If a lawyer who is accused of suborning perjury goes for a quick settlement with a gag order, rather than demanding that his good name be cleared, I would tend to think it really did happen....but I have no personal knowledge one way or the other.
I CAN tell you that this guy is the very same lawyer who made the motion in Warner v. Scantlebury to stay the case against the dead defendant for 60 days, to give his family enough time to 'grieve', and then pick up taking depositions of the decedent's children.
Actually I'm pretty sure that the RIAA never disputed what the 15-year old said about the lawyer's conduct. My recollection is that they quickly and quietly settled the case with a confidentiality stipulation, so that we'll never know what happened.
As some readers have pointed out, the PDF file cited is the wrong one. It was one of the papers in the Motown v. Nelson case, in Michigan, where a 15 year old witness testified to the RIAA lawyer's attempting to get her to say things that weren't so. The SONY v. Arellanes documents are here and the documents served by Ms. Arellanes objecting to the RIAA's insistence on their own expert are here, here, and here.
I think it's a little odd that they are fighting so hard to make sure it's an expert they've paid, as opposed to an independent expert whose qualifications are beyond doubt (as Ms. Arellanes's proposed order would ensure). I personally can think of only 2 reasons: (1) they're afraid of what an independent expert might say, and/or (2) they want to force the defendant to incur the expense of hiring her own expert at $200 per hour.
The reference to bullying witnesses into perjury has to do with the RIAA's lawyers' conduct in Motown v. Nelson, a Michigan case in which a 15 year old witness testified to conduct by the RIAA's lawyers which might be construed that way. See also my blog post from last year on that subject.
I think having 'linkers' as opposed to 'original reporters' might be the saving grace, in a way, of the internet and social networking. I was an election hotline volunteer in Ohio in the presidential election 2004. What everyone in Ohio saw, and what even the 'original reporters' in Ohio reported, was one thing; what was actually reported by the "original reporters" from the mainstream media was something quite different. It was quite evident to all of us who had been there that there was a concerted effort by the mainstream media to create an image did not comport with reality, and since they are the main image makers, they succeeded. The "linkers" on the internet took the factual material gathered by amateurs: videotapes, hearing testimony, voting records, litigation documents, etc., and made it available to others. Yes their work was not "original", but when looking for news I'm looking for truth, not creativity, facts rather than originality. The mainstream media was original all right, its reportage was fiction masquerading as news.
Bottom line I'm thankful to have linkers in the news field, because I'm more interested in facts than in writing style. As far as investigative journalism is concerned, yes I would like to see more digging than just weakly tapping into 3rd hand reports, but overall I saw more investigative work by the internet linkers than I did from any mainstream reporter.
Frankly, I didn't see ANY evidence in the court's decision that SHE did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.
No problem. There's no way you could have gotten to the decision without first clicking through to the linked source, then clicking through to their linked source, then clicking throught to their linked source (my blog post), and then clicking through from there to the litigation document. That's a bit much to ask of any reader.
More importantly, have you had a chance to read the decision? Can you tell if the judge is mistaking a defragmentation utility for wiping software? Can you distinguish between when he is talking about wiping and when he is talking about defragging? I'd really be curious as to what the technical folks can tell me about that.
To me the most interesting legal point is the judge's observation that the RIAA's own evidence was "scant and piecemeal". Isn't a plaintiff supposed to have something more than that before dragging someone through the mud by naming them as a defendant in a federal lawsuit?
"They found out she was downloading copyrighted material (which is currently illegal) and sent out a court order to have her HDD seized, etc."
These assumptions on your part are not accurate, and may be the result of having read fifth hand accounts of the court's decision, instead of the decision itself.
In fact they did not find out about any downloading, on her part or anyone else's. All they knew is that a computer linked to her account had copyrighted files on it which were in a shared files folder that the RIAA was able to access one day through iMesh. They did not know if the files were obtained legally or illegally. They did not know if anything was done with them which was illegal. The judge even noted that the RIAA's own evidence was "scant and piecemeal".
Neither did they get a court order seizing anything. A lawsuit was commenced. As part of the pretrial discovery process, the RIAA sought, and obtained, an order directing the defendant to permit plaintiff to make a mirror image of her hard drive.
In his decision the judge expressed anger that defendant had used a defragmentation utility subsequent to the Court's order, and prior to the mirror imaging.
It is not clear to me when the judge is talking about "wiping" and when he is talking about "defragmenting".
I wonder if the programmers out there can help me on that one.
Why don't you read the transcript in Warner v. Does 1-149, where the RIAA lawyer ultimately admitted it? In fact, Cary Sherman admitted it on national television in December, when I appeared on the CBS Early Morning Show with Harry Smith. It's not a controverted issue. The evidence the RIAA has when it brings these cases is the same in every case. It is what I described in my previous post.
If you don't respect "authority", well that's healthy. But if you can't be bothered to inform yourself, then that is not.
It is evident that you have more free time than I do, so I will bid you adieu.
I have counseled or represented 20 to 25 defendants in these cases, of which approximately 10 are or have been in active litigation. I am as familiar as anyone in the country with the evidence, or lack of evidence, the RIAA has when it commences these cases. My blog is full of the litigation documents laying it all out for you. If you choose not to read them, you should at least respect the report of someone who has read all of them.
Yes they could do a more thorough investigation prior to commencement of suit... the thing is, they don't.
Your suggestion that it's okay to sue people, even if you have no evidence that they infringed your copyrights, is troublesome to me.
All the RIAA knows about people it sues is that they paid for an internet access account which the RIAA's investigator has traced to a particular dynamic ip address on a certain date and time at which the investigator took a screen shot of a shared files folder, and that in this shared files folder there were 9 or 10 copyrighted song files.
They don't know if the song files were lawfully obtained copies or unlawful copies, or if anything unlawful was ever done with them. They don't know if the defendant had anything to do with the shared files folder, or if it was even the defendant's computer that had the files on it.
If one sues all people who fit this description, it is probably true that the "driftnet" would yield a 10 to 20% harvest; i.e., there might be a 10% to 20% likelihood of finding a defendant who actually infringed a copyright. But that does not make it okay to sue someone, just on the offchance that the defendant is in the 10 to 20% group of potentially culpable people, as opposed to the 80 to 90% group of totally innocent people.
It's just inconsistent with a lawyer's obligations to bring mass lawsuits against innocent people because some of the defendants are probably culpable.
I have to wonder why you would be willing to be so tolerant of behavior in which the RIAA, instead of investigating further, simply chooses to go ahead and sue innocent people. If the RIAA believes that a certain internet access account may have been used for copyright infringement, it should investigate further, not just sue.
I wonder how you would feel if you were forced to incur the expense of defending yourself in a federal lawsuit for something you didn't do. Perhaps you wouldn't take it so lightly.
1. Citation: it is in a response to a "frequently asked question". Click "FAQ" in left margin, go down to comments and moderation section, and you'll see a Q&A on the subject of who does the moderation.
...the difference between "has no case" and "has almost no case, but you might get lucky" is extremely fine....
1. The editors at Slashdot have unlimited moderation points and are responsible for about 3% of the moderation.
2. It is acceptable for a lawyer to tell his client he has no case. If the client tells him file it anyway, the lawyer is not supposed to follow that order. He is supposed to refuse to put his name to it.
westlake, you happen to be wrong. The purpose of copyright was twofold: (1) to reward the artist, and (2) to return the work to the public domain after a limited period of time. Now that the term of copyright has been tripled from 25 to 75 years neither purpose is being served. The artist is long dead. And the public has to wait a ridiculous 75 years. All that is being served is the interest of big money -- i.e. companies like Disney.
daveschroeder writes: "....In this case, the father (the dead man) was probably the one legally responsible for the internet connection and was likely also a legal guardian of his stepson. Whether you agree with it or not, there can certainly be legal culpability on the part of someone who is legally responsible for a particular item (such as an internet connection). I have literally no idea how this holds up in the context of music sharing; just pointing out that fact."
I think you may be a victim, possibly subliminally, of RIAA propaganda.
You happen to be incorrect on both points. Neither (a) being the person who pays for the home's internet access account, nor (b) being a legal guardian of someone who might have committed a copyright infringement, makes one "responsible", under the law. (By the way he was not the guardian of the stepson, the stepson is an adult.).
The RIAA has done much to create the impression that you are operating under, that parents are automatically liable for copyright infringements which might take place through the internet access account they pay for; but this is not the law.
I would recommend that you read the brief submitted by the Electronic Frontier Foundation, ACLU, and others, in Capitol v. Foster, where they discuss how the RIAA has, in a calculated way, attempted to give you that impression.
Agreed. They can say anything they want to say about what Mr. Scantlebury said; he's no longer around to contradict them.
What concerns me is their use of the language "this particular lawsuit". This "particular" lawsuit was a nullity anyway, because it was going to have to be dismissed in any event. Are they planning to turn around and sue the children?
Slashdot Mirror
Neither you nor I know that Mr. Wilke's "pockets" are "deep". Most likely his lawyer, Daliah Saper, of Chicago, is taking her chances here, and not receiving her normal compensation.
You might be talking about these cases: Priority Records v. Candy Chan( Chan I ) and Priority Records v. Brittany Chan (Chan II ), in Michigan; Capitol v. Foster, in Oklahoma; Warner v. Stubbs, also in Oklahoma; and Virgin Records v. Tammie Marson, in California. All cases resulted in RIAA dropping the case.
All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.
Your are correct that it was only 'one side of the story'. However, it wasn't the defendant's side. It was the testimony of a 15-year-old witness, who testified under oath that she had previously 'misspoken' under oath at the behest of the RIAA's lawyer.
I don't trust my memory anymore, but my recollection is that the RIAA never disputed what she said, and that a quiet, confidential settlement was abruptly entered into. If I can find out that they did rebut it, I'll try to get the document posted, but I'm pretty sure this was something that actually did happen.
If a lawyer who is accused of suborning perjury goes for a quick settlement with a gag order, rather than demanding that his good name be cleared, I would tend to think it really did happen....but I have no personal knowledge one way or the other.
I CAN tell you that this guy is the very same lawyer who made the motion in Warner v. Scantlebury to stay the case against the dead defendant for 60 days, to give his family enough time to 'grieve', and then pick up taking depositions of the decedent's children.
Actually I'm pretty sure that the RIAA never disputed what the 15-year old said about the lawyer's conduct. My recollection is that they quickly and quietly settled the case with a confidentiality stipulation, so that we'll never know what happened.
As some readers have pointed out, the PDF file cited is the wrong one. It was one of the papers in the Motown v. Nelson case, in Michigan, where a 15 year old witness testified to the RIAA lawyer's attempting to get her to say things that weren't so. The SONY v. Arellanes documents are here and the documents served by Ms. Arellanes objecting to the RIAA's insistence on their own expert are here, here, and here.
I think it's a little odd that they are fighting so hard to make sure it's an expert they've paid, as opposed to an independent expert whose qualifications are beyond doubt (as Ms. Arellanes's proposed order would ensure). I personally can think of only 2 reasons: (1) they're afraid of what an independent expert might say, and/or (2) they want to force the defendant to incur the expense of hiring her own expert at $200 per hour.
The reference to bullying witnesses into perjury has to do with the RIAA's lawyers' conduct in Motown v. Nelson, a Michigan case in which a 15 year old witness testified to conduct by the RIAA's lawyers which might be construed that way. See also my blog post from last year on that subject.
I think having 'linkers' as opposed to 'original reporters' might be the saving grace, in a way, of the internet and social networking. I was an election hotline volunteer in Ohio in the presidential election 2004. What everyone in Ohio saw, and what even the 'original reporters' in Ohio reported, was one thing; what was actually reported by the "original reporters" from the mainstream media was something quite different. It was quite evident to all of us who had been there that there was a concerted effort by the mainstream media to create an image did not comport with reality, and since they are the main image makers, they succeeded. The "linkers" on the internet took the factual material gathered by amateurs: videotapes, hearing testimony, voting records, litigation documents, etc., and made it available to others. Yes their work was not "original", but when looking for news I'm looking for truth, not creativity, facts rather than originality. The mainstream media was original all right, its reportage was fiction masquerading as news.
Bottom line I'm thankful to have linkers in the news field, because I'm more interested in facts than in writing style. As far as investigative journalism is concerned, yes I would like to see more digging than just weakly tapping into 3rd hand reports, but overall I saw more investigative work by the internet linkers than I did from any mainstream reporter.
Frankly, I didn't see ANY evidence in the court's decision that SHE did it. I think she had teenage and adult children who may have done it. Why should she be punished because of something they may have done? The judge takes a pretty big leap from the fact that it was done to the unsupported conclusion that it was the defendant who did it.
No problem. There's no way you could have gotten to the decision without first clicking through to the linked source, then clicking through to their linked source, then clicking throught to their linked source (my blog post), and then clicking through from there to the litigation document. That's a bit much to ask of any reader.
More importantly, have you had a chance to read the decision? Can you tell if the judge is mistaking a defragmentation utility for wiping software? Can you distinguish between when he is talking about wiping and when he is talking about defragging? I'd really be curious as to what the technical folks can tell me about that.
To me the most interesting legal point is the judge's observation that the RIAA's own evidence was "scant and piecemeal". Isn't a plaintiff supposed to have something more than that before dragging someone through the mud by naming them as a defendant in a federal lawsuit?
"They found out she was downloading copyrighted material (which is currently illegal) and sent out a court order to have her HDD seized, etc."
These assumptions on your part are not accurate, and may be the result of having read fifth hand accounts of the court's decision, instead of the decision itself.
In fact they did not find out about any downloading, on her part or anyone else's. All they knew is that a computer linked to her account had copyrighted files on it which were in a shared files folder that the RIAA was able to access one day through iMesh. They did not know if the files were obtained legally or illegally. They did not know if anything was done with them which was illegal. The judge even noted that the RIAA's own evidence was "scant and piecemeal".
Neither did they get a court order seizing anything. A lawsuit was commenced. As part of the pretrial discovery process, the RIAA sought, and obtained, an order directing the defendant to permit plaintiff to make a mirror image of her hard drive.
In his decision the judge expressed anger that defendant had used a defragmentation utility subsequent to the Court's order, and prior to the mirror imaging.
It is not clear to me when the judge is talking about "wiping" and when he is talking about "defragmenting".
I wonder if the programmers out there can help me on that one.
Are you folks clear that the judge was talking about wiping vs. defragmenting? Here's the actual decision.
Maybe that's why we live in a tyranny.
No problem. Was just wondering what I'd missed. Thanks very much for clarifying.
What are you talking about?
Why don't you read the transcript in Warner v. Does 1-149, where the RIAA lawyer ultimately admitted it? In fact, Cary Sherman admitted it on national television in December, when I appeared on the CBS Early Morning Show with Harry Smith. It's not a controverted issue. The evidence the RIAA has when it brings these cases is the same in every case. It is what I described in my previous post.
If you don't respect "authority", well that's healthy. But if you can't be bothered to inform yourself, then that is not.
It is evident that you have more free time than I do, so I will bid you adieu.
I have work to do.
I have counseled or represented 20 to 25 defendants in these cases, of which approximately 10 are or have been in active litigation. I am as familiar as anyone in the country with the evidence, or lack of evidence, the RIAA has when it commences these cases. My blog is full of the litigation documents laying it all out for you. If you choose not to read them, you should at least respect the report of someone who has read all of them.
Yes they could do a more thorough investigation prior to commencement of suit... the thing is, they don't.
Your suggestion that it's okay to sue people, even if you have no evidence that they infringed your copyrights, is troublesome to me.
All the RIAA knows about people it sues is that they paid for an internet access account which the RIAA's investigator has traced to a particular dynamic ip address on a certain date and time at which the investigator took a screen shot of a shared files folder, and that in this shared files folder there were 9 or 10 copyrighted song files.
They don't know if the song files were lawfully obtained copies or unlawful copies, or if anything unlawful was ever done with them. They don't know if the defendant had anything to do with the shared files folder, or if it was even the defendant's computer that had the files on it.
If one sues all people who fit this description, it is probably true that the "driftnet" would yield a 10 to 20% harvest; i.e., there might be a 10% to 20% likelihood of finding a defendant who actually infringed a copyright. But that does not make it okay to sue someone, just on the offchance that the defendant is in the 10 to 20% group of potentially culpable people, as opposed to the 80 to 90% group of totally innocent people.
It's just inconsistent with a lawyer's obligations to bring mass lawsuits against innocent people because some of the defendants are probably culpable.
I have to wonder why you would be willing to be so tolerant of behavior in which the RIAA, instead of investigating further, simply chooses to go ahead and sue innocent people. If the RIAA believes that a certain internet access account may have been used for copyright infringement, it should investigate further, not just sue.
I wonder how you would feel if you were forced to incur the expense of defending yourself in a federal lawsuit for something you didn't do. Perhaps you wouldn't take it so lightly.
Citation?
1. Citation: it is in a response to a "frequently asked question". Click "FAQ" in left margin, go down to comments and moderation section, and you'll see a Q&A on the subject of who does the moderation.
2. Sometimes the line isn't so fine. In these cases they are all based upon zero evidence of defendant having committed a copyright infringement. Also, there are numerous other acts of misconduct going on, including the continuation of cases after plaintiff becomes aware that the defendant didn't do it. You should read the brief of EFF, ACLU, Public Citizen, ACLU of Oklahoma, and American Association of Law Libraries in Capitol v. Foster, and the brief of US Internet Industry Association and US Computer & Communications Industry Association in Elektra v. Barker to see how overbroad and improper the RIAA file sharing lawsuits are.
1. The editors at Slashdot have unlimited moderation points and are responsible for about 3% of the moderation.
2. It is acceptable for a lawyer to tell his client he has no case. If the client tells him file it anyway, the lawyer is not supposed to follow that order. He is supposed to refuse to put his name to it.
westlake, you happen to be wrong. The purpose of copyright was twofold: (1) to reward the artist, and (2) to return the work to the public domain after a limited period of time. Now that the term of copyright has been tripled from 25 to 75 years neither purpose is being served. The artist is long dead. And the public has to wait a ridiculous 75 years. All that is being served is the interest of big money -- i.e. companies like Disney.
Your best bet would be to read MGM v. Grokster where the standards for secondary liability for someone else's copyright infringement are laid out.
Being a parent, or being the person who paid for the household's internet access account, would not satisfy those standards.
daveschroeder writes: "....In this case, the father (the dead man) was probably the one legally responsible for the internet connection and was likely also a legal guardian of his stepson. Whether you agree with it or not, there can certainly be legal culpability on the part of someone who is legally responsible for a particular item (such as an internet connection). I have literally no idea how this holds up in the context of music sharing; just pointing out that fact."
I think you may be a victim, possibly subliminally, of RIAA propaganda.
You happen to be incorrect on both points. Neither (a) being the person who pays for the home's internet access account, nor (b) being a legal guardian of someone who might have committed a copyright infringement, makes one "responsible", under the law. (By the way he was not the guardian of the stepson, the stepson is an adult.).
The RIAA has done much to create the impression that you are operating under, that parents are automatically liable for copyright infringements which might take place through the internet access account they pay for; but this is not the law.
I would recommend that you read the brief submitted by the Electronic Frontier Foundation, ACLU, and others, in Capitol v. Foster, where they discuss how the RIAA has, in a calculated way, attempted to give you that impression.
Agreed. They can say anything they want to say about what Mr. Scantlebury said; he's no longer around to contradict them.
What concerns me is their use of the language "this particular lawsuit". This "particular" lawsuit was a nullity anyway, because it was going to have to be dismissed in any event. Are they planning to turn around and sue the children?