RIAA Wants to Include Song Files it Can't Produce 234
NewYorkCountryLawyer writes "In UMG v. Lindor the RIAA is trying to include song files it doesn't have copies of as part of its 'distribution' argument. The defendant Marie Lindor is asking the Court to preclude them from doing that. She points to the RIAA's own interrogatory response in which the record companies swore that their case was based upon their investigator seeing a screenshot and then downloading 'perfect digital copies'. They produced eleven (11) copies of song files, but want to be able to prove twenty seven (27) other songs for which they can't produce the files."
Sounds like.... (Score:5, Interesting)
Re: (Score:2, Insightful)
Re:Sounds like.... (Score:5, Insightful)
Don't they also pay companies to flood P2P networks with junk files?
I don't see how a filename is indicative of anything, other than the string concerned having been distributed. Not even on balance of probability.
Re:Sounds like.... (Score:4, Interesting)
Besides, even if they downloaded a file and had it, it's difficult to prove that that file came from the defendant's computer. It still largely comes down to how trustworthy a jury would find the RIAA witnesses and evidence to be.
Re: (Score:3, Informative)
Notice the limitations here: it means nothing if we don't know whether the file was, in fact, a copyrighted f
Re:Sounds like.... (Score:5, Informative)
However, so far as we can discern what the contents were based on the name, which is a jury question, it's still possible to win a suit without actually showing what the contents are. But I wouldn't like to have to do that, since it's not a strong position.
Re: (Score:2)
I have not seen the screen-shots mentioned, but if they include the file's hash, and the RIAA can produce their own copy of the file that has the same hash and is an actual copy of the work in question, that ought to be sufficient. Unless they wish to ar
Re: (Score:3, Informative)
It would depend on what the file consisted of, but it's entirely possible.
Re: (Score:2)
They may have been intentionally sharing a file they owned copyright to (say a 3 meg picture file of themselves) that they renamed to "stones-gloria.mp3" because they are vehemently against copyright infringement.
Re: (Score:3, Insightful)
Heck, it could be a complete fluke of quantum probability, what with there being a non-zero but impossibly small chance that the file spontaneously formed on the hard drive. However, it's not very probable, just as it's not very probable that it's someone hosting a fake file, doubly so when it's a
Re: (Score:3, Interesting)
Re: (Score:2, Informative)
It's a bigger if than most people realise. The record companies don't own any and all performances of a tune --
Re: (Score:3, Insightful)
2) I'd probably believe that the other copies were real too.
3) Then I'd jury nullify anyway most likely.
Re: (Score:3, Insightful)
It's pretty easy to get deselected.
But if I'm not going to admit that I believe in jury nullification.
I just don't believe in the justice system any more. They've criminalized so much- we've seen innocent people sent away to bolster a prosecuting attorney's record so many times- and seen attorney's not just defend but get people off on a technicality that they know are scum. It's just a big game to them.
The law, and it's enforcement, is increasingly arbitrary and rando
Re: (Score:2)
Re: (Score:2)
Re:Sounds like.... (Score:5, Informative)
Re: (Score:3, Interesting)
Yes they do flood the internet with junk files which look like song files but aren't. The only way to tell if it's a real song file is to listen to it from beginning to end. See Reply Memorandum of Law at pages 2-4. As you can see from the deposition testimony excerpted there, the company that 'investigates' for the lawsuits and the company that floods the internet with junk pseudo-song files is the same company.
More curiosity than anything else since I believe our copyright laws are totally fubar'd anyway
Re: (Score:2)
That said, I gather sometimes they distribute things like folk music, even porn films rather than junk, under the name of popular albums. So the RIAA (or agents acting on their behalf) apparently are quite happy to violate other people's copyright to "defend" their own (well, their member's copyrights).
Re: (Score:2)
So several seconds of complete silence is a "creative element"?
Re: (Score:2)
No. The people who own the copyright on those files, are explicitly making them available for free download on P2P networks. That precludes them suing others for doing the same, since you have at least implicit permission from the copyright holder.
Re: (Score:2)
There's no such thing as "implicit permission" to redistribute a copyrighted work. Either you have explicit permission or you don't have the legal authority to distribute.
Re: (Score:2)
You're apparently not a lawyer.
(not that I am, either, I've just studied the issue)
Re: (Score:3, Informative)
There is no such thing as implicit permission to redistribute copyrighted material. There is Fair Use, and there is explicit permission, but nothing in-between. You could argue in co
Re: (Score:3, Insightful)
Whether or not Bittorrent constitutes redistribution is something for the courts to decide. Assuming the tracker is authorized by the copyright owner to distribute the material, since it is coordinating who is allowed into the peer group it would make sense to say the tracker is really controlling the distribution from a legal standpoint. But we've seen crazier decisi
Re: (Score:2, Informative)
It would not be the first time an organization (any Police force, for example) used a fake material (something that looked like cocaine) in a sting operation, for
Re: (Score:3, Interesting)
I read here on
That is a LOT of financial incentive to fake data.
Re: (Score:2)
Re: (Score:3, Insightful)
Staff attorneys (of which major labels have many) are not, and in all likelihood they have a bunch of paralegal interns doing the grunt work and the staff attorney probably just signs whatever paperwork they produce and shows up at the token court appearances for the few folks who bother to stand up against the tyrants.
Re: (Score:2)
This is a fine idea (Score:4, Funny)
Re:Sounds like.... (Score:5, Interesting)
Spare me. When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight. If you can't be bothered to do that, then you've got no business taking your case to court. We're not talking about some farmer assuing his neighbor of stealing horses here. This is a big fat well-funded group that has the resources and teams of lawyers/investigators to gather the evidence correctly.
Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?
Re:Sounds like.... (Score:5, Informative)
Well, this is a civil case, so as it happens no one is trying to prove anyone guilty of any crime. I guess they dodged a bullet there.
Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?
Sure. And a jury can decide which of the two possibilities is most likely to them (since that, and not the stricter 'beyond a reasonable doubt,' is the standard here), and then whichever possibility they find to be most likely is true, for the purposes of the case.
So if you were a juror, and you were being fair to both sides, and they asked you what you thought the file was based on the name, which do you think it probably would be, even if that probability was only a 51% likelihood?
Re: (Score:3, Insightful)
Are you simply too stupid to figure out what the GP was saying, or are you deliberately trying to confuse the issue by focussing on this irrelevant technicality?
The RIAA demands compensation that amounts to more than what many criminal cases result in, and they may well ruin people's lives with that. The least we can ask of them is that they produce decent evidence.
which do
Re: (Score:3, Insightful)
You shouldn't do something evil just because it's legal when the government has been corrupted as badly as it has.
I think the people are doing something wrong and should be fined a reasonable amount (11 songs is worth 3 bucks via allofmp3.com or $11 via itunes or way less via yahoo all you can listen tho you are renting there).
If someone stole $11 worth of product from a store, what is the proper punishment?
If
Re: (Score:3, Informative)
If he was a peddler, I would weigh whether the jury can fine him or if the judge. If the jury can fine him, I'd be willing to put in a guilty verdict and the appropriate fine for a peddler. The person who trade a file here and t
Re: (Score:3, Interesting)
If you think it's so permissible for people to violate others' rights, please p
Re: (Score:2)
The entity that is filing these frivolous lawsuits needs to prove that they are being injured AND they need to produce some evidence against the accused. Producing half-assed evidence (or, INCREDIBLY, no evidence at all in some cases) isn't good enough. The RIAA and their re
Re: (Score:2)
Just because a man can't be put in jail for a lawsuit doesn't mean, though, that the evidence should be any less sufficient, in my opinion. I cannot say I'm informed enough to say whether or not this is "sufficient evidence" I do know that the "evidence" put forth
Re: (Score:3, Informative)
Assuming that they're seeking statutory damages, and that they are able to get them, both of which are very likely, the law does not require that they be harmed, or that they prove that they were harmed.
Custom Hash (Score:2)
What I mean is, say I download a Metallica MP3 file from eDonkey. What I would like to do is then tag that file with my own little "key" that is based on a key encryption system of some sort. Perhaps I make the tag "rabel" and this tag is then encrypted and the encrypted tag is attached to the file itself. If I then
Re: (Score:2)
The problem lies with
1) RIAA agents areknown to put mislabeled files on p2p programs. Ouch!
2) they claim 27 files, and voluntarily introduce 11 they downloaded; they ar
Re: (Score:2)
Re: (Score:2)
Re: (Score:2)
Re: (Score:2)
The problem is, it should NOT be a crime.
Re: (Score:2)
For one thing, there is no "person who shows up as having a Metallica album on a p2p". There is a node on a P2P network identified by an IP. Connecting that to a particuar computer, let alone human being, is fraug
it really is bad (Score:2)
Yes, and it isn't enough. Why not? Because if the RIAA can establish a principle that merely offering a file name that in some way resembles a song is sufficient proof of copy
Re:Sounds like.... (Score:4, Interesting)
Undeniably correct? Which accusation are you referring to, because I know it wasn't the part about their business being significantly damaged by file sharing. In fact, that claim is undeniably FALSE, as this study points out: http://www.unc.edu/~cigar/papers/FileSharing_March 2004.pdf#search=%22file%20sharing%20record%20sales %22 [unc.edu]. Notice, in the abstract: Downloads have an effect on sales which is statistically
indistinguishable from zero, despite rather precise estimates. This would seem to make sense, as most of us should be familiar with the sales reports from Kazaa's high point, which showed the CD sales had more than recovered since Napster's debut -- and Kazaa had far more traffic than Napster, further weakening the claim that the RIAA would be bankrupted by file sharing.
Perhaps this theory would help: most people who use file sharing networks would not have purchased the album in question anyway, so no actual sales were lost. Think about that statement, and think about who is using file sharing networks. Before Napster came out, were college students out buying hundreds of CDs (the equivalent of the thousands of MP3s that some had downloaded and shared)? Certainly not, most cannot afford to spend upwards of $5000 on album collections. So downloading those tracks should not be counted as a lost sale, any more than sharing CDs in a dorm building should (but I wouldn't put it past the RIAA to count it that way). This is why I am always skeptical of economists who say that millions of dollars per year are lost to piracy, because I am forced to ask whether or not the people using pirated music, movies, books, or software were actually going to buy these things to begin with (especially with software, especially when it costs more than $100). The problem is that basic economics does not apply here; the fact that music is available for free does not mean that people will automatically flock to the free stuff, as we learned that they should in economics 101, and the reasons behind this are still being studied.
Re: (Score:2)
I could easily see that they lose 25 cents per customer per year due to music trading.
For example, when they started charging $20 for a 60 minute CD that i knew cost $1 to physically make, while 2 hour movies with huge budgets were about $15.00, they started losing 2-3 sales per year to me. I chose other locations for my entertainment dollars because they were too expensive.
And when they started suing customers, they l
Re: (Score:2)
~S
Lack of evidence... (Score:2)
make accusations
fail to provide solid evidence
hope pure intimidation works.
Profit?
STB
Re: (Score:2, Interesting)
If the copyright cartel enforcers are required to have downloaded copies from the alleged infringer in order to maintain a suit, then something like Peer Guardian becomes more effective: p2p'ers can be seen online, yet they're safe as long as they can succeed in blocking connections to or from all the enforcers' addresses.
If on the other hand, the enforcers can maintain a suit without showing that they downloaded copies from the alleged infringer, then they really have no logical way
Re: (Score:3, Interesting)
Hardly. Peerguardian can only ever block IP addresses that are known to belong to *AA agents. Nothing prevents them from using cable, dialup, wifi, etc. to get online.
In fact, to the *AA i
Re: (Score:2)
There's a paper I've skimmed describing exactly that approach. Can't find a link right now, but it was basically what you described--use a kno
Re:Lack of evidence... (Score:5, Insightful)
I'm sorry, but there is a very logical way of establishing what the "p2p'er" was sharing was infringing, and it's called an inference based on circumstantial evidence.
Let's be quite clear
1. The plaintiff's agent, "the enforcer", obtained someone's IP address and a list of shared songs.
2. The plaintiff's agent actually downloaded 11 of the shared songs, so that the plaintiff was presumably able to verify that the songs actually corresponded to the file's name and/or metatags.
3. You have a list of shared filenames and quite possibly metadata tags, and concrete evidence that items on the list actually are what they purported to be.
4. You can quite logically draw the conclusion that the shared filenames really are what they purport to be.
The burden of persuasion on in a civil case is not "beyond a reasonable doubt," but a "preponderance of the evidence." If you can stand up before a jury or ordinary people and convince them that it really is more likely than not that each file downloaded from this source was really something other than what it claimed to be, then you need to start your own law practice. Also, the defendant in the case is arguing that they shouldn't even have to make that argument to a jury, simply because "the enforcer" did not download each and every file.
I'm reasonably sympathetic to the defendants in these cases given the haphazard manner in which the license holders are initiating their lawsuits and the excessive penalties, but one you get beyond matching an IP to a subscriber, the arguments that the defendants are making quickly start to become ludicrous. Open wireless access points are attractive nuisances. Children using the office computer to amass a thousand songs are negligently supervised. You can surely argue against these points if there is a de minimis infringement, but when someone is building a trading a library of a thousand songs, it's hardly tenable to argue that ignorance is an excuse.
Feel free to argue that you must have all the evidence you need to win a trial before filing a lawsuit, and to argue that you must have actual copies or physical specimens of each an every infringing work or device. When a corporation is a defendant, it will be more than happy to use those ludicrous arguments to its advantage to make it even more difficult for individuals to prove and obtain relief for copyright infringement, patent infringement, theft of trade secrets, and the like. It won't actually happen, and the defendants are going to lose these types of arguments, but the intellectual breadth of the typical Slashdot legal analysis continues to astound me.
Re:Lack of evidence... (Score:5, Interesting)
It goes to damages. The damages are determined on a per-violation basis. The RIAA is arguing that they don't need the actual files to be obtainable to prove damages. I have evidence that says that they do:
From:
http://blogcritics.org/archives/2002/10/04/081226
and...
So yes, they need the actual files given this track record especially when they are seeking $150,000+ per file.
B.
Why should a sample not be adequate proof? (Score:2)
Seems to me that they saw 38 files which could be music, protected by copyright.
They then took a sample consisting of 11 of those files to test if they actually were. All of those 11 files were the real thing. Then they conclude that the remaining 27 files with sufficient propability is the real thing to
Re: (Score:2)
B.
Re: (Score:2)
I caught you speeding yesterday.
I caught you speeding the day before.
I'm giving you a ticket today because you must have been speed since you did in the past.
Thankfully that type of logic isn't actually considered evidence.
Re: (Score:2)
A closer analogy would be that on 20 occasions, I saw you drive past going at what appeared to me to be faster than the speed limit. I measured your speed on 8 of those occasions, and you were indeed speeding. Therefore, it seems likely to me that on the other 12 occasions you were also speeding.
Of course, even that isn't really the same, as speeding is a criminal matter, while copyright infringment is civil, and the level of proof required
Re: (Score:2)
But hang on, when you download something, aren't you forced to upload as well on most p2p networks/bittorrent? If so, then does the RIAA have permission from the "artists" to distribute content in such a manner? If they don't, can't they then be sued by the people they're supposedly representing?
Oh please all of my answers be correct. Then someone find some wealthy artist who isn't
Re: (Score:2)
Re: (Score:2)
download them (Score:5, Insightful)
Why don't they share with us what format they got the first few "perfect" copies... Monkey Audio?
Re: (Score:2)
Um no. If the RIAA shows up in court with a file with a different checksum or length (diffrent rip) they throw a big shadow over their whole case and the defendants would be all over it like flies. They don't need a Microsoft style demo in a courtroom.
Reverse it (Score:5, Insightful)
Re: (Score:2)
Well, you could show the court some screenshots... who could prove you edited them?
You don't need the files anyway.
Re: (Score:2, Informative)
The vast majority of criminal cases are launched not by police action, but on the complaint of an average Joe-Citizen. In fact, most cases cannot even go forward without such a complaint, even in the clear presence of a crime, since prosecution requires a faceable accusser.
KFG
stupid court system (Score:5, Informative)
Re: (Score:2)
In this case (and most others that the RIAA would run) where the brokenness rears it's head is that there is no loss for the RIAA to demonstrate and the presupposition that the ex
Re: (Score:2)
Yes they do - they have to prove to a jury "on the balance of probability". In the end, it still comes down to the evidence and the skill of each party's representatives; the bar is just that little bit lower for the plaintiff. It's definitely not the case that you just drag someone to court and take all their money, as you seem to be implying.
Evidence (Score:5, Insightful)
Re: (Score:2)
Re: (Score:3, Insightful)
Re: (Score:2)
It works enough I'm afraid to buy a CD anymore. I can't buy enough insurance to protect me for what my kids might do with one. It's another reason to stay on dial-up. It's too slow.
Most swimming pools no longer have a diving board even though they were about as common as swimming pools due to the legal liability. I'm thinking I-pods and internet connections are next.
The liability is certainly killing open Wi-Fi
Re: (Score:2)
Does OSHA count? Most people are in favor of consumer protection and civil liability.
Continuing the spread of crap... (Score:5, Funny)
"We used a reverse DNS lookup to find out that this was the computer used for the downloading."
"Our investigator downloaded a perfect copy of the file downloaded by the defendant in a process of reverse spectral resonance."
"We figured 'To hell with it' and crossed the beams. Once we realized the universe didn't end, we found a burn mark that resembled the offending computer's IP address."
What new wonders of the universe will the RIAA educate judges on next week?
Re:Continuing the spread of crap... (Score:4, Informative)
Re: (Score:2)
Is that some kind of large rodent?
Well... (Score:2, Funny)
Re: (Score:3, Interesting)
First of all, copyright protects the right to make copies. So, technically, if I download a file from you, I am asking for you to make me a copy, and you do so. You are the one violating copyright, not I. So if the RIAA gets a file from your computer, they aren't getting you for downloading it, they are getting you for sending it.
Second of all, the copyright holde
boycott the music industry! (Score:2, Informative)
do it like the german chaos computer club and pirate party, BOYCOTT THE MUSIC INDUSTRY! LISTEN TO CREATIVE COMMONS MUSIC! it's great music and it's free and the damn music industry can't prosecute you for listening to it for free!
http://wiki.creativecommons.org/Content_Curators [creativecommons.org]
http://www.garageband.com/htdb/index.html [garageband.com]
Re:boycott the RIAA (Score:3, Informative)
What's really funny... (Score:3, Interesting)
Re: (Score:3, Informative)
Re: (Score:2)
Re: (Score:2)
Point two: I that is true also, But I can also put copies of a story I wrote up on the bulleten board a work. People are free to take them and read them. I can even give permition to make a co
if a screenshot is the only prove (Score:5, Funny)
This is not Metallica - Enter sandman
This is not Madonna - Confessions On A Dancefloor
This is not King Kong (Peter Jackson)
Re:WTF? Copies? Files? (Score:5, Informative)
Re: (Score:2)
Using a screenshot which may easily faked showing names of songs that may never have been RIAA property is about as legally compelling as sworn testimony from an alcoholic wifebeater who claims that his TV talks to him and tells him to molest small animals.
The RIAA should have their asses handed back to them on a plate with a heft fine for wasting the courts time.
Re: (Score:2, Insightful)
I presume, as part of discovery, the defendant could ask for a copy of the files the RIAA downloaded?
Re: (Score:2)
With this little game, I doubt they actually did their homework there either.
Re: (Score:2)
If they wern't working for the recording companies, then it would be wrong to provide the files. But since someone working on behalf of the legal copyright holders specifically requests a copy, what exactly is the offense?
Re: (Score:2)
Re: (Score:3, Funny)
In the US - Goliath seeks out David...
Re: (Score:2)
Isn't this more or less just an attempt to reduce the completely ridiculous amount of money they're going to have to pay?
They haven't lost the case yet. They are reducing what they have to defend against, or if their client is going to admit guilt, possibly reducing the amount of any potential settlement.
Re: (Score:2)
Re: (Score:2)
Ms. Lindor is arguing they are limited to 11 times 750.
They are trying to be able to recover 38 times 750.
Re: (Score:3, Insightful)