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RIAA Wants to Include Song Files it Can't Produce

Zonk posted more than 7 years ago | from the hidden-files dept.

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."

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Sounds like.... (5, Interesting)

bchabot (838095) | more than 7 years ago | (#16173135)

Sounds like they're going down the same road as Chief Justice William Stoughton's acceptance of spectral evidence [wikipedia.org] ...

Re:Sounds like.... (0)

Anonymous Coward | more than 7 years ago | (#16173421)

Sounds like they're going down the same road as Chief Justice William Stoughton's acceptance of spectral evidence...

How can any judge in their right mind resist the temptation to administer the universe's most horrendous judicial bitchslappinng to this request?

Re:Sounds like.... (2, Insightful)

iamplasma (189832) | more than 7 years ago | (#16173609)

Not really. While I know it's trendy to join in on the usual RIAA-bashing, and as a matter of evidence it's really quite sloppy of the RIAA not to have actually downloaded the copies, and I think the misstatement in their filing is even more sloppy (but, honestly, they don't seem to be trying to actually mislead) I'm not really seeing the grounds everyone is going beserk on here. Basically, the difference is between "we searched Kazaa/eDonkey/whatever and this user was offering Metallica's album for download" and "we searched Kazaa/eDonkey/whatever and actually downloaded Metallica's album from this user". The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

Now, while I suspect as a matter of pure legalism this motion has a good chance of success, I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence. Of course, "proof" in practice and "proof" in law are often two totally different things, but before going beserk and calling the RIAA a bunch of fraudsters, keep in mind they're presenting what is realistically proof enough if you leave the red-tape of legalism out of the equation. Yes, I do know there have been occasions where the RIAA has come up with some possible false positives, and mislabelled files certainly exist, but it's more the exception than than the rule, so on the balance of probabilities, a person who shows up as having a Metallica album on a p2p program more likely than not does, it's as simple as that.

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

Re:Sounds like.... (4, Insightful)

Paul Jakma (2677) | more than 7 years ago | (#16173743)

The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

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.... (3, Interesting)

cpt kangarooski (3773) | more than 7 years ago | (#16173823)

Well, it may be indicative of something. It's not very good evidence, but it is evidence. The degree to which it is belivable is up to the jury. Clearly, if you were on the jury, you wouldn't believe it. But so long as a reasonable juror might believe it, there doesn't seem to be anything wrong with taking it to them. It's their job to decide this sort of thing.

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:Sounds like.... (2, Informative)

The Only Druid (587299) | more than 7 years ago | (#16174243)

One thing it is perfect evidence of is the mens rea of the person sharing those files (if we assume the screenshot hasn't been altered). If the person had a file in their share-list, we know they intended to share that file. If that file is undeniably (big if) a file they had no legal right to share, then we've established that the person intended to violate the legal rights of the rightsholder.

Notice the limitations here: it means nothing if we don't know whether the file was, in fact, a copyrighted file; it means nothing if the trustworthiness is in question.

Re:Sounds like.... (2, Insightful)

Maxo-Texas (864189) | more than 7 years ago | (#16174361)

1) If they had 11 copies they did download.
2) I'd probably believe that the other copies were real too.
3) Then I'd jury nullify anyway most likely.

Re:Sounds like.... (4, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16173991)

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 [ilrweb.com] 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.

Re:Sounds like.... (2, Interesting)

EzInKy (115248) | more than 7 years ago | (#16174147)


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 but since everything is copyrighted by default wouldn't even sharing junk pseudo-song files be an infringement?

Re:Sounds like.... (1)

Paul Jakma (2677) | more than 7 years ago | (#16174265)

Only creative elements can be copyrighted. I.e. a bunch of random bits can't be.

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:Sounds like.... (2, Informative)

phulegart (997083) | more than 7 years ago | (#16174417)

If the RIAA was paying companies to distribute junk files that were named after legitimate songs, and then attempted to turn around and point to the existance of those "junk" files that appeared to be real songs as proof of people downloading illegally distributed music, that would make the RIAA guilty of fabricating evidence to assist their case.

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 just the act of buying what you THINK is cocaine from an undercover operator, is enough to get you convicted of the same crime as ACTUALLY purchasing real cocaine.

This is different though. If the RIAA was simply distriuting junk files, then monitored who downloaded the junk files to prosecute them, that would be a sting operation similar to the one I laid out above. Based on precedent, that would be completely legal of them. If, however, the RIAA is distributing junk files, then throwing a screaming fit for prosecution based on just the existance of those junk files, that is the same as planting a gun on someone to implicate them in a crime they did not commit.

COnsidering how much trouble the RIAA would get in if they were attempting to ENTRAP people, and combined with the fact that there are more than enough people currently downloading music illegally at this very moment, I highly doubt that the RIAA is paying companies to distribute junk files.

If the RIAA provides screenshots of a P2P program screen, showing that a particular song is being downloaded BY 200 people, while it is also being seeded by another 150, I'd say that is proof of the fact that 150 people have a questionable file, and another 200 are getting it illegally. I don;t believe they have to actually go to one of those person;s house, and watch the song download.

Re:Sounds like.... (2, Interesting)

Maxo-Texas (864189) | more than 7 years ago | (#16174461)

I agree with your 150 / 200 numbers with this one caveat.

I read here on /. a while back taht RIAA made $54 million off of suits last year.

That is a LOT of financial incentive to fake data.

Re:Sounds like.... (4, Interesting)

Ritz_Just_Ritz (883997) | more than 7 years ago | (#16173753)

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.


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.... (4, Informative)

cpt kangarooski (3773) | more than 7 years ago | (#16173859)

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

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:Sounds like.... (0)

Ritz_Just_Ritz (883997) | more than 7 years ago | (#16174023)


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.


Call it what you will. One party is hauling another party off to court and the person being sued could stand to suffer substantial financial losses. So, you can play semantic games if that makes you feel more complete, but the end result is the same. A potentially innocent party is being imposed upon by "the man." "The man" has the resources to document the case, but does not do so. Hopefully, the judge will see through this charade and toss out the counts that lack relevant documentation. Having some gumshoe testify "uh, gee your honour, yes, I saw a printout of a screenshot that looked a lot like titles of songs" just doesn't cut the mustard.

Re:Sounds like.... (2, Interesting)

The Only Druid (587299) | more than 7 years ago | (#16174263)

Frankly, you're being intentionally obstinate and daft. The OP makes an extremely important distinction: a criminal case carries possible penalties including imprisonment, fines and a permanent criminal record (and all that entails), while a civil case carries only the possibility of fines. In one case, you're a misanthrope, in the other case you're just someone who is a jerk and intentionally violated someone else's rights.

If you think it's so permissible for people to violate others' rights, please post your address, passwords and user names, etc. so all of us can interfere with your rights. That'd be fair, right?

However you feel about the RIAA (e.g. its crappy tactics, its awful music, etc.) they have legal rights. Just because you don't believe in those rights doesn't mean you can ignore them. If you don't think those rights are legitimate, you're welcome to participate in the same legislative process as the rest of us.

Re:Sounds like.... (1)

Ritz_Just_Ritz (883997) | more than 7 years ago | (#16174485)

Frankly, I think you're being intentionally obtuse. Whether your intention is to injure someone through criminal proceedings or by using the government's gun to bankrupt them, the end result is the same. The accused person is harmed.

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 respective thugs are well funded so they don't even have the excuse of financial hardship (just laziness or unwillingness) to justify their lack of evidence.

So please spare me your equal rights plea for the man.

Re:Sounds like.... (0)

Anonymous Coward | more than 7 years ago | (#16174123)

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?

If the juror had actually used p2p before, they'd assume that the RIAA didn't download it because they knew that the file's hash matched one of Madonna screaming a string of cuss words.

Re:Sounds like.... (2, Insightful)

oohshiny (998054) | more than 7 years ago | (#16174207)

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.

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 you think it probably would be, even if that probability was only a 51% likelihood?

"Preponderance of evidence" doesn't necessarily mean that; the legal system can well demand stricter proof, even in civil cases.

Re:Sounds like.... (1)

Hikaru79 (832891) | more than 7 years ago | (#16174321)

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 only one being 'too stupid' here is you if you think the distinction between a civil and criminal case is an 'irrelevant technicality'. If you had bothered to read the rest of the post, you would have seen him describe the important major difference between a criminal and civil case -- in a criminal case, you need to prove guilt BEYOND A REASONABLE DOUBT (which the RIAA is not doing here), and in a civil case you need to prove it in a BALANCE OF PROBABILITIES, meaning over 50% likelihood (which I'm sure we can all agree the RIAA is doing here. A lot more than 50% of files labelled "Metallica" are indeed Metallica, especially when they've found 11 other correctly-labelled files from the same person).

Whether or not what the RIAA is doing is morally right is certainly in question (I agree with the Slashdot groupthink that it's not), but to try and imply that the RIAA is using its influence to fudge the legal process and get away with things they shouldn't be is simply unfair. This is valid evidence in a civil case, and its up to the jury to decide whether or not to believe it.

Re:Sounds like.... (2, Insightful)

Maxo-Texas (864189) | more than 7 years ago | (#16174385)

It is up to the jury to decide if they believe it AND if they agree that the case is morally right.

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 someone read $11 worth of books in a store but did not take the books, what is the proper punishment?

It's somewhere in that continuem. So I'd probably jury nullify to the best of my ability.

Custom Hash (1)

rabel (531545) | more than 7 years ago | (#16174315)

I wonder, is there any way to tag files on one's computer with a unique key that stays with the file when it is downloaded and can be modified by others after they have downloaded the file?

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 share that file on my P2P program and other people download it, they would then be able to overwrite the encrypted tag with thier own encrypted tag (if they feel like it, they don't have to).

Later during my trial when the RIAA says I was sharing Metallica's music, I can simply insist that they produce the encrypted key that I personally placed on the files.

Perhaps I provide the judge with the unencrypted tag and my private key and the RIAA provides the judge with the encrypted tag. If they don't match then the case is thrown out.

Of course, this assumes that I want to cooperate and I suppose that if I'm sharing copyrighted music online I'm pretty much writing my own guilty plea. On the other hand, the RIAA would pretty much have to download the songs before they could prosecute someone.

Re:Sounds like.... (1)

wfberg (24378) | more than 7 years ago | (#16173773)

Yes, I do know there have been occasions where the RIAA has come up with some possible false positives, and mislabelled files certainly exist, but it's more the exception than than the rule, so on the balance of probabilities, a person who shows up as having a Metallica album on a p2p program more likely than not does, it's as simple as that.

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 are holding themselves up to a level of evidence they can't fulfill for most of their claim.

They're already basically involved in a sting operation, and are known for having crappy evidence (sueing people that don't even own computers etc.). They're operating a scare campaign. A campaign of terror if you will. Given that so many of their cases are baseless, and the dollar amounts of damages they seek, I can see a judge holding them to a more stringent standard of evidence than, say, some schmoe sueing his neighbor in small claims court over overhanging tree branches.

Re:Sounds like.... (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16174031)

They're claiming 38 songs, but they can only produce 11 of them. (Actually I don't think even the 11 are legitimate).

Re:Sounds like.... (1)

dangitman (862676) | more than 7 years ago | (#16173827)

You don't get a legal ruling against somebody because they were "probably" doing something. That goes against everything the justice system stands for. Do you think we should send people to jail because they were "probably" burgling a house, just because somebody says so? I'm not sure why you are beiong an apologist for the RIAA, and for invalid evidence in general.

Re:Sounds like.... (1)

denebian devil (944045) | more than 7 years ago | (#16174037)

You're mixing up criminal with civil, which have two very different standards for how much evidence is "enough." What would you define the word "probably" as, in terms of a percentage of likeliness? One of the definitions [reference.com] of "probable" is "having more evidence for than against, or evidence that inclines the mind to belief but leaves some room for doubt." Does that sound like at least 51% likely? If so, then it has met the civil burden of proof, which is what the RIAA needs.

Re:Sounds like.... (1)

cyclop (780354) | more than 7 years ago | (#16173953)

The problem is, it should NOT be a crime.

Re:Sounds like.... (1)

1u3hr (530656) | more than 7 years ago | (#16174095)

I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence. ... so on the balance of probabilities, a person who shows up as having a Metallica album on a p2p program more likely than not does, it's as simple as that.

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 fraught, and though you might feel it likely it belonged to a particular person, that depends on the perfection of the ISP's logs, which were never designed for use as legal evidence, and whether anyone has spoofed it. If you're going to put someone through the hell of the legal process and demand thousands of dollars (for notional, not real) losses, you need a higher standard. That the RIAAA has avoided arguing their cases on their merits and depended on intimidating accused into settling is the point of taking this case to court.

it really is bad (1)

oohshiny (998054) | more than 7 years ago | (#16174121)

Basically, the difference is between "we searched Kazaa/eDonkey/whatever and this user was offering Metallica's album for download" and "we searched Kazaa/eDonkey/whatever and actually downloaded Metallica's album from this user". The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

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 copyright infringment, the Internet as we know it is in trouble.

In order to demonstrate copyright infringement, the RIAA should have to show, for each instance, that the content is actually something they represent the copyright holder for. It's easy to do and there is no reason for them not to do it. That's a principle from which we should never deviate.

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard

The RIAA is ruining people's lives by enforcing laws that are contrary to public opinion and sentiment. Even if they did everything by the book, there is certainly ample justification for criticism. But what they're doing is even worse: they are actually trying to do what they're doing with shaky evidence, and they are doing it for clients of questionable ethics and with dubious contributions to society. If that would not be reason for harsh criticism ("bashing"), I don't know what would be.

Re:Sounds like.... (3, Interesting)

betterunixthanunix (980855) | more than 7 years ago | (#16174307)

Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.

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:Sounds like.... (1)

Maxo-Texas (864189) | more than 7 years ago | (#16174447)

I'm actually not sceptical that millions of dollars are being lost. It's a big industry.
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 lost the last $30 to $45 per year from me and have continued to lose this amount every year.

Re:Sounds like.... (1)

kfg (145172) | more than 7 years ago | (#16174347)

Now, while I suspect as a matter of pure legalism this motion has a good chance of success, I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence.

You are not arguing to the point of the RIAA's claim. The reason for claiming the largest number of files possible is to claim larger damages. Larger damages, with the cocommitant criminal activity that comes with them, are more likely to result in an out of court settlement, for a larger amount of money.

It's an intimidation tactic. The accused is choosing to put up the best fight rather than be intimidated; and everyone here understands that despite their claims, the RIAA has not actually identified an individual who did the sharing, but merely the individual whose name the account is in?

KFG

Lack of evidence... (1)

Spock the Baptist (455355) | more than 7 years ago | (#16173137)

RIAA SOP,
make accusations
fail to provide solid evidence
hope pure intimidation works.

Profit?

STB

Re:Lack of evidence... (1, Interesting)

quentin_quayle (868719) | more than 7 years ago | (#16173337)

This could be important.

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 of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.

Re:Lack of evidence... (2, Interesting)

wfberg (24378) | more than 7 years ago | (#16173613)

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.

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 it would be interesting to see that a certain peer can be contacted from an untainted IP address, but not from a tainted one. That way they know you're using PeerGuardian. If I were them, I'd go after those people just to scare PeerGuardian users. They can even use the fact that you used PeerGuardian to argue that you knew you were doing wrong.

Re:Lack of evidence... (1)

Ph33r th3 g(O)at (592622) | more than 7 years ago | (#16174365)

In fact, to the *AA it would be interesting to see that a certain peer can be contacted from an untainted IP address, but not from a tainted one. That way they know you're using PeerGuardian. If I were them, I'd go after those people just to scare PeerGuardian users. They can even use the fact that you used PeerGuardian to argue that you knew you were doing wrong.

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 known PG-blocked address and a consumer DSL or cable connection, and bust those to whom you can connect with the latter but not with the former.

Re:Lack of evidence... (5, Insightful)

DRJlaw (946416) | more than 7 years ago | (#16173821)

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 of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.

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... (4, Interesting)

penix1 (722987) | more than 7 years ago | (#16174441)

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.


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. php [blogcritics.org]

In one case, Warner Bros. demanded a particular subscriber be disconnected for illegally sharing the movie "Harry Potter and the Sorcerer's Stone." But the computer file identified by Warner Bros. in its letter indicated that it wasn't the "Harry Potter" movie but a child's written book report.


and...

Another letter, to Internet provider UUNet, wanted a subscriber cut off because they were sharing songs by former Beatle George Harrison. But some files were not songs at all. One was an interview with Harrison, and another was a 1947 photograph of a "Mrs. Harrison."


So yes, they need the actual files given this track record especially when they are seeking $150,000+ per file.

B.

Re:Lack of evidence... (1)

aussie_a (778472) | more than 7 years ago | (#16173969)

If the copyright cartel enforcers are required to have downloaded copies from the alleged infringer in order to maintain a suit

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 too happy with the RIAA!

Re:Lack of evidence... (1)

Nick Harkin (589728) | more than 7 years ago | (#16174203)

I'm pretty sure that the agents the RIAA represent (the record labels themselves) own the copyright to the songs they're chasing, not the artists themselves.

SCO anyone? (0, Offtopic)

Anonymous Coward | more than 7 years ago | (#16173149)

Im reminded of the desperate last efforts of SCO to extend their lawsuit...

download them (4, Insightful)

managementboy (223451) | more than 7 years ago | (#16173153)

How about starting that donkey and downloading them? A copy is a copy, isn't it?

Why don't they share with us what format they got the first few "perfect" copies... Monkey Audio?

Re:download them (1)

Technician (215283) | more than 7 years ago | (#16173957)

How about starting that donkey and downloading them? A copy is a copy, isn't it?


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.

makes me sick (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#16173163)

Carnage Blender [carnageblender.com]

maybe this link makes you sick too?

Reverse it (5, Insightful)

LiquidEdge (774076) | more than 7 years ago | (#16173227)

How about someone sue the RIAA for having kiddy porn on the RIAA web server? No, I can't prove it. But I just said it was there didn't I?

Re:Reverse it (1, Insightful)

Anonymous Coward | more than 7 years ago | (#16173271)

this just isn't justice, what's to stop then from editing screen shots, it's not like they can't afford a copy of MS paint

Re:Reverse it (1)

cp.tar (871488) | more than 7 years ago | (#16173335)

Well, you could show the court some screenshots... who could prove you edited them?

You don't need the files anyway.

Re:Reverse it (0)

Shemmie (909181) | more than 7 years ago | (#16173665)

Next thing you know, the RIAA and MPAA will claim the IP address came to them via a visitation on a wall in Mexico.

Re:Reverse it (1)

JonathanR (852748) | more than 7 years ago | (#16173893)

If you could demonstrate a personal loss as a result of the RIAA hosting the iddy porn, then yes, you're welcome to launch a civil suit. I don't think, however, that the average Joe-Citizen is able to launch a criminal case against anyone.

Re:Reverse it (2, Informative)

kfg (145172) | more than 7 years ago | (#16174513)

I don't think, however, that the average Joe-Citizen is able to launch a criminal case against anyone.

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

discovery (1)

sideswipe76 (689578) | more than 7 years ago | (#16174511)

Yeah, then follow it up with a motion for discovery.

stupid court system (4, Informative)

JeremyALogan (622913) | more than 7 years ago | (#16173291)

If I were them I'd really like to beat my hands against my chest and cry "innocent until proven guilty, mother-fuckers", however this is civil, so they basically don't have to prove anything. We have a broken legal system.

Re:stupid court system (0)

Anonymous Coward | more than 7 years ago | (#16173349)

infested with corporatist psychopaths whose main purpose is ensure that the system stays broken... and thus exploitable.

Re:stupid court system (1)

i41 (804842) | more than 7 years ago | (#16173433)

If I were them I'd really like to beat my hands against my chest and cry "innocent until proven guilty, mother-fuckers", however this is civil, so they basically don't have to prove anything. We have a broken legal system.

Next time you're butt-raped in a broom closet you can thank our "broken" legal system that a judge can choose to believe the victim.

Re:stupid court system (0)

Anonymous Coward | more than 7 years ago | (#16173479)

you'd still have to prove you were butt-raped, and the accused butt-raper was the one who buttraped you. The judge doesn't get to choose who to believe, the jury would require evidence otherwise the accused walks...

Re:stupid court system (1)

larry bagina (561269) | more than 7 years ago | (#16174163)

The judge doesn't get to choose who to believe

They do when it's a judgement.

Re:stupid court system (1)

awol (98751) | more than 7 years ago | (#16174151)

Well not really broken in the way that you say. The purpose of the civil system is different to the criminal one. It is designed to redress loss and so the standard of culpability is lower once the loss has been demonstrated. This is a good thing. But not the precursor to the lower standard is "once the loss has been demonstrated".

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 existence of "illegal" files as the proof of loss is the problem.

Mitigation? (1)

Faaln (1004586) | more than 7 years ago | (#16173325)

Isn't this more or less just an attempt to reduce the completely ridiculous amount of money they're going to have to pay? Because even if they *only* have 11 copies they confirmed could be had (and I'm using confirmed very loosely with these guys) then isn't the defendant still liable to pay well over $10,000 even if the other 16 that weren't produced? What does this really win them, a kick to the balls vs. a shot in the cranium?

Re:Mitigation? (1)

jrumney (197329) | more than 7 years ago | (#16173525)

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:Mitigation? (1)

Elemenope (905108) | more than 7 years ago | (#16173659)

I don't know about you, but I think it is a rare person indeed who thinks 'kicked in the balls' is anywhere on the same level with 'shot in the head'. It's not a hard choice.

Re:Mitigation? (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16173931)

They're locked in to proving $750 per recording. They've already been precluded from trying to prove more than that.

Ms. Lindor is arguing they are limited to 11 times 750.

They are trying to be able to recover 38 times 750.

Re:Mitigation? (0)

Anonymous Coward | more than 7 years ago | (#16174421)

This seems mostly to be about reduceing potential damages. But there's a small chance, that if they can show how sloppy the RIAA is being, it may cast some doubt on the whole case.

Evidence (5, Insightful)

Toba82 (871257) | more than 7 years ago | (#16173347)

Evidence isn't needed when you aren't expecting to win. The RIAA doesn't care about winning the case, they care about scaring people. It still works.

Re:Evidence (1)

babbling (952366) | more than 7 years ago | (#16173531)

Suing people without any evidence works better at scaring other people, in fact. Absolutely anyone could get sued!

Re:Evidence (2, Insightful)

Sancho (17056) | more than 7 years ago | (#16173771)

See, except that they do have evidence. The question is whether what they have counts when it gets before a judge. They aren't picking IP addresses out of thin air and making up that this person was violating copyright, they're saying, "This person is sharing files which look quite a bit like our music. I'm not going to download it to verify, but I'm going to sue." Realistically, a judge is going to assume that you are actually sharing the file, and I doubt you could convince him otherwise, particularly if the RIAA has 11 other songs that they did download.

And don't argue "what ifs" or "but I'd do it just to screw with the RIAA". What matters is appearance, here, because ultimately the RIAA could take any mp3 and claim that they got it from you. How could anyone possibly prove otherwise? When we're talking about something as nebulous as a digital copy of music, it's virtually impossible to determine the origin of a file.

Re:Evidence (1)

uucp2 (731567) | more than 7 years ago | (#16173683)

"Listen. And understand. That RIAA is out there. It can't be bargained with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And it absolutely will not stop, ever, until you are sentenced or will settle."

Re:Evidence (0)

Anonymous Coward | more than 7 years ago | (#16174395)

" I'm a friend of Sarah Fileshara. I was told she is here. Can I sue her, please?"
"You can't sue her. She's making a settlement."
" Where is she?"
"Look. It's gonna be a while while the RIAA is looking for 27 song files. You wanna wait. There's a bench."
"I'll be back"

Re:Evidence (1)

Technician (215283) | more than 7 years ago | (#16173981)

The RIAA doesn't care about winning the case, they care about scaring people. It still works.

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 access points.

Has anybody noticed the ripple effect from these lawsuits?

Re:Evidence (1)

kamapuaa (555446) | more than 7 years ago | (#16174083)

> Has anybody noticed the ripple effect from these lawsuits?

Does OSHA count? Most people are in favor of consumer protection and civil liability.

WTF? Copies? Files? (1)

prionic6 (858109) | more than 7 years ago | (#16173361)

Ok, I was drunk yesterday and I'm not a native speaker, so maybe the problem ist with me. But even after reading some of the linked pdf and articles I can't comprehend. Can someone tell me in plain words, who has copies of what and would like to have other files that were not produced (babble babble babble). I understand that it is about music and filesharing, I'm not dumb. Is this about an agent of the RIAA downloading files from Ms. Lindor, then they sue her about those and additional files that were there but that they did not download? Or what?

Re:WTF? Copies? Files? (5, Informative)

larry bagina (561269) | more than 7 years ago | (#16173447)

The lady was using eDonkey or whatever. The RIAA downloaded 11 songs from her and filed a lawsuit. They have a screenshot showing that she was sharing 27 songs and want all them included in their lawsuit, even though they didn't actually download/verify 16 of the songs. That's my understanding, at least.

Re:WTF? Copies? Files? (1)

prionic6 (858109) | more than 7 years ago | (#16173455)

Ok, that makes sense in a way. Thank you.

Re:WTF? Copies? Files? (2)

incabulos (55835) | more than 7 years ago | (#16173655)

Perhaps these 'songs' were recordings of the Plaintiff saying 'Bite my shiny metal ass' ?

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:WTF? Copies? Files? (2, Insightful)

JonathanR (852748) | more than 7 years ago | (#16173929)

Perhaps a good defence would be to hand over a CD with 27 audio files saying just that (make sure you get the file size correct by padding the end with sufficient random white noise). It would be good to get some audio file of "RIAA are fucking arseholes" heard as evidence in court.

I presume, as part of discovery, the defendant could ask for a copy of the files the RIAA downloaded?

Re:WTF? Copies? Files? (1)

Kaenneth (82978) | more than 7 years ago | (#16173907)

I really don't see the issue; an authorized agent of the content producer asks an automated system for copies of files they own, an automated system provides them.

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:WTF? Copies? Files? (1)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16173939)

They have eleven song files they claim to have downloaded from the computer in Ms. Lindor's apartment. But they announced that they are trying to recover damages for thirty eight (38) recordings. Ms. Lindor's says "how can you prove 38 when you only have 11?"

Re:WTF? Copies? Files? (2, Funny)

penguinbrat (711309) | more than 7 years ago | (#16174229)

Wayyy back when, somewhere in the middle east - David saught out Goliath.

In the US - Goliath seeks out David...

Continuing the spread of crap... (5, Funny)

Tsuki_no_Hikari (1004963) | more than 7 years ago | (#16173375)

"Our investigator saw a screenshot of an IP address we traced back to them."

"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? :D Oh, I can't wait!

Re:Continuing the spread of crap... (3, Informative)

TERdON (862570) | more than 7 years ago | (#16173431)

The swedish Antipiratbyrån already has got people convicted with screenshots as the only evidence. You'll better hope they won't teach **AA that...

Re:Continuing the spread of crap... (1)

dangitman (862676) | more than 7 years ago | (#16173845)

The swedish Antipiratbyrån

Is that some kind of large rodent?

Re:Continuing the spread of crap... (1)

Lemm (88514) | more than 7 years ago | (#16173975)

I can't be sure, but I think byrån is Swedish for bastards.

heh (0)

Anonymous Coward | more than 7 years ago | (#16173515)

I just imagined the RIAA as the Staypuft Marshmallow Man roaring "I am going to get you freeloading commie bastard hippies!" just before - Peter Venkman, Raymond Stanz and Egon Spengler crossed the streams.

uhmm...so? (1)

91degrees (207121) | more than 7 years ago | (#16173615)

They still have the copyright on the song don't they?

Re:uhmm...so? (2, Insightful)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16173945)

They don't have the copyright on the songs, just the 'sound recording copyright' on these particular recordings of those songs.

Re:uhmm...so? (1)

MerrickStar (981213) | more than 7 years ago | (#16174409)

no, the RIAA is an organization that represents record labels. They do not hold any copyright on songs that come into question.

Re:uhmm...so? (1)

91degrees (207121) | more than 7 years ago | (#16174549)

Okay. I've read the replies to this comment [slashdot.org] . I just totally misunderstood the argument.

Well... (2, Funny)

d3m0nCr4t (869332) | more than 7 years ago | (#16173677)

Shoudn't the RIAA start to sue themselves ? They downloaded copies of songs to there computer, and now they are shareing them with a judge...

Re:Well... (2, Interesting)

StrongAxe (713301) | more than 7 years ago | (#16174173)

Shoudn't the RIAA start to sue themselves ? They downloaded copies of songs to there computer, and now they are shareing them with a judge...

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 holder has the right to make whatever copies they want, and to provide permission to anyone they choose to do the same. So if they or their agents download, or upload, or do anything else they want to do with their own data, they have the right to do so.

test (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#16173693)

test

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boycott the music industry! (2, Informative)

AlgorithMan (937244) | more than 7 years ago | (#16173791)

not even videos are allowed as evidence in courts, how do they think "I saw a screenshot" could be allowed as evidence? allowing this as evidence in court would be dictatorship!

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 (2, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16174175)

I agree with you. I've been collecting a list of links to sources of non-RIAA music which I call Liberated Music [blogspot.com] . I've added garageband.com [garageband.com] to it (I already had Creative Commons [creativecommons.org] in there). Incredible the wealth of music that's out there once you liberate yourself from the monotony of the 4 big record companies.

Re:boycott the music industry! (0)

Anonymous Coward | more than 7 years ago | (#16174319)

No one seems willing or able to do that. Lots of clueless folk are downloading and sharing. The RIAA wants to put such restrictions on their music that it's difficult to see how anyone can use the product legally.

Just leave it be, let the music rot on the shelves, don't buy it or share it.

What's really funny... (2, Interesting)

technopinion (469686) | more than 7 years ago | (#16173949)

What's really funny is that the RIAA themselves seeded all sorts of fake files mislabelled as songs on the p2p networks. So how is the court supposed to know that what they think are real copyrighted songs are actually songs at all, when the RIAA didn't download them to find out?

Re:What's really funny... (2, Informative)

NewYorkCountryLawyer (912032) | more than 7 years ago | (#16174041)

Correct. See Gary Millin deposition testimony at pages 2-4 of Reply Memorandum of Law [ilrweb.com] , where he admitted making bogus files that looked like song files, and littering the internet with them. He admitted that the only way to tell if it was a real song file was to listen to it from beginning to end.

Re:What's really funny... (1)

cpuffer_hammer (31542) | more than 7 years ago | (#16174217)

Does not matter the "junk" in the file no matter how little sence it makes is still their copyright "junk". Now one might be able to claim it has little economic value.

Re:What's really funny... (1)

91degrees (207121) | more than 7 years ago | (#16174573)

Might not be copyrighted. If it's white noise, then recordings of white noise are in thepublic domain.

That, and we can argue implicit permission to copy since they were deliberately seeded on P2P networks. I'm sure the lawyers will be able to come up with much better arguments than those both for and against.

if a screenshot is the only prove (5, Funny)

aitan (948581) | more than 7 years ago | (#16174135)

Well, I'm safe because right now I've made it very clear that I'm not sharing anything with copyright. A screenshot would look like this:
This is not Metallica - Enter sandman
This is not Madonna - Confessions On A Dancefloor
This is not King Kong (Peter Jackson)

Re:if a screenshot is the only prove (1)

AmberBlackCat (829689) | more than 7 years ago | (#16174197)

And the news article six months from now will read, "RIAA gets court to accept evidence that people are not sharing files as evidence that people are sharing files."

It's not any more stupid than what they're doing right now, if this is for real.

Yawn (0, Offtopic)

Rydia (556444) | more than 7 years ago | (#16174295)

Circumstantial evidence? Hello?
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