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Rochester Judge Holds RIAA Evidence Insufficient

kdawson posted more than 6 years ago | from the so-prove-it-already dept.

The Courts 169

NewYorkCountryLawyer writes "Judge David G. Larimer, presiding in Rochester, New York, has denied an RIAA application for default judgment on the ground that the RIAA's evidence was insufficient, in that it contained no details of actual downloads or distributions, and no sufficient evidence that defendant was in fact Kazaa user 'heavyjeffmc@KaZaA.' The decision (PDF) concluded that 'there are significant issues of fact regarding the identification of the defendant from his alleged "online media distribution system" username.' (In case you're unfamiliar with the term 'online media distribution system,' that's because it is a term the RIAA coined 4 years ago to describe p2p file sharing accounts in its lawsuits; the term is not known to have been used by anyone else anywhere else.) In August a similar RIAA default judgment motion was denied on the ground that the pleadings failed to allege sufficient factual details supporting a claim of copyright infringement, in a San Diego, California, case, Interscope v. Rodriguez."

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169 comments

Good news for the defendant (2, Funny)

DrXym (126579) | more than 6 years ago | (#21146689)

Heavy Jeff is said to be delighted at the ruling.

Re:Good news for the defendant (4, Funny)

Timesprout (579035) | more than 6 years ago | (#21146707)

He aint heavy, he's my filesharer.

Re:Good news for the defendant (1, Funny)

Anonymous Coward | more than 6 years ago | (#21147471)

There's an 85.7% correspondence between your reply and a 1969 song title.
Expect to be contacted by our lawyers shortly.

The RIAA.

Re:Good news for the defendant (2, Funny)

multipartmixed (163409) | more than 6 years ago | (#21147673)

Bah.

The road is long, with many a winding turn.. that leads to who knows where. I mean, to the MAFIAA actually winning that.

Yet another "not liable by technicality" (5, Insightful)

SamP2 (1097897) | more than 6 years ago | (#21146713)

Decided by question of fact, not question of law. Instead of "not liable in principle" it's "not liable because they couldn't prove it". Judge's favorite way of avoiding responsibility for a legal precedent for hundreds of years.

But at least it shows you why choosing a judge in such cases is a much better option for the defendant than a trial by jury [slashdot.org] - technicalities count, precisely for the reason that judges have a vested interest in maintaining the status quo, while juries prefer to take the big-bang approach.

Re:Yet another "not liable by technicality" (2, Insightful)

Rogerborg (306625) | more than 6 years ago | (#21146731)

What on earth are you jabbering on about? In an adversarial system, it's the prosecution or litigant's job to "prove" the allegation. Where in any statute can I find a reference to conviction on "principle"?

Re:Yet another "not liable by technicality" (1, Insightful)

Anonymous Coward | more than 6 years ago | (#21146767)

In an adversarial system, it's the prosecution or litigant's job to "prove" the allegation. Where in any statute can I find a reference to conviction on "principle"?
But juries are more likely to rule on "feeling" than on the basis of what is said in a statute

Re:Yet another "not liable by technicality" (4, Insightful)

NMerriam (15122) | more than 6 years ago | (#21150753)

But juries are more likely to rule on "feeling" than on the basis of what is said in a statute


That's why judges still run the courtroom, even in a jury trial. We count on juries to refuse to convict based on "feelings", which is the whole purpose of having 12 random Joes rather than a professional jury class. But we also count on judges to both regulate what evidence is presented to the jury and overturn convictions where "what is said in a statute" is not met. It's basically the best of both worlds, assuming you believe it is better to err on the side of allowing guilty men to go free rather than imprisoning the innocent (not that both don't happen regardless).

Re:Yet another "not liable by technicality" (5, Informative)

ZachPruckowski (918562) | more than 6 years ago | (#21147347)

What on earth are you jabbering on about? In an adversarial system, it's the prosecution or litigant's job to "prove" the allegation. Where in any statute can I find a reference to conviction on "principle"?


He means that the judge found him not liable because of insufficient evidence, not because the judge thought that filesharing shouldn't result in lawsuits or that the label's case was tainted or something.

If the judge had said "non-commercial infringement is not something you can sue over" or if he had said "your tactics to collect this evidence were illegal", then the case would get thrown out, and other judges would be given ammo to do the same thing. In this instance, it was a decision about a specific set of facts which are non-generalizable.

Generalize. Fitting Punishment. (4, Insightful)

Erris (531066) | more than 6 years ago | (#21148033)

In this instance, it was a decision about a specific set of facts which are non-generalizable.

That would be true if the RIAA show trials were different from each other in any way. None of them ever present "sufficient evidence" of damage. If other judges look at this decision and follow, the game is over as it should be. This judge has come close to understanding that the charges themselves are unsupportable.

The sad fact of life for the broadcast and recording companies is that they have nothing special to offer. Anyone can now make good quality recordings and everyone has access to the same, dirt cheap promotion platform. Their position as the sole promoter of music can only be maintained by eliminating everyone else's rights.

The nature of publishing has changed and the laws need to move with it. If the goal of copyright it to maximize culture and the state of the art, copyright law needs to become more accepting of new publication methods not less accepting. Terms of exclusivity and punishment for violation of that exclusivity need to more closely match the lower costs of recording and publishing. 100 year copyrights and $200,000 judgements are absurd. You will never see anyone prove actual damages like that because it never happens.

Everyone can now make good quality recordings... (2, Insightful)

patio11 (857072) | more than 6 years ago | (#21148779)

... which is why, if you open a random P2P users' collection, you will find hundreds of gigabytes of quality open-license indie music like Code Monkey and maybe three or four random crappy Britstreet Boys tracks.

The labels are certainly not the only ones capable of making music, but they sure seem like they create the vast majority of the music that people think is valuable enough *to pay nothing for*.

Re:Everyone can now make good quality recordings.. (0)

Anonymous Coward | more than 6 years ago | (#21149439)

Why should I go to Kazaa for Code Monkey, when I can just get it from Coulton's own web site?

Re:Everyone can now make good quality recordings.. (1)

UncleTogie (1004853) | more than 6 years ago | (#21149479)

The labels are certainly not the only ones capable of making music, but they sure seem like they create the vast majority of the music that people think is valuable enough *to pay nothing for*.

The labels, as much as they'd like to indicate otherwise, don't create the music. They create the marketing. Should I be more impressed with an artists ability to create, or the record firms ability to try to pawn a crap sandwich as filet mignon?

Re:Everyone can now make good quality recordings.. (1)

iron-kurton (891451) | more than 6 years ago | (#21150305)

From what I understand, the labels not only provide the recording studios and marketing money, they also provide producers who, in 99% of pop music today, write and compose the actual songs. The "artists" are nothing more than performers of the songs written by the record producers.

Re:Yet another "not liable by technicality" (5, Informative)

rking (32070) | more than 6 years ago | (#21146797)

Decided by question of fact, not question of law. Instead of "not liable in principle" it's "not liable because they couldn't prove it".
You're turning the word "technicality" on its head. Not finding someone liable (yet) unless the case against them has been made is the very core of the system. It's the whole point of the proceedings. It's as far from being a technicality as anything could be.

Re:Yet another "not liable by technicality" (1)

speaker of the truth (1112181) | more than 6 years ago | (#21146937)

When the chances of someone being a filesharer is greater then 50% if someone is chosen at random, it becomes difficult to celebrate this person's innocence.

Re:Yet another "not liable by technicality" (2, Insightful)

rking (32070) | more than 6 years ago | (#21146969)

When the chances of someone being a filesharer is greater then 50% if someone is chosen at random, it becomes difficult to celebrate this person's innocence.
I can't even see how that's relevant. I've no idea whether they should be liable or not. Apparently the judge doesn't have enough information to make that decision either. So the case goes on. This is how it should be. The RIAA will have their chance to prove liability and the defendant has the chance to refute it (though so far the defendant doesn't seem to be taking that opportunity, which does not bode well for them).

Re:Yet another "not liable by technicality" (0)

speaker of the truth (1112181) | more than 6 years ago | (#21146977)

If they're found to have used a p2p program with the copyrighted material and still aren't found liable. This means that the law says that illegally distributing people's copyrighted content for free isn't something that companies should be able to sue you for.

However if he's found not liable because the RIAA couldn't prove he used the p2p program when everyone in court knows he did it then that's a bad thing, because he's getting away on a technicality. It'd be like having on trial being found not guilty because the state couldn't prove it. That's something that leaves everyone dissatisfied, except for the criminals of course.

Re:Yet another "not liable by technicality" (0)

speaker of the truth (1112181) | more than 6 years ago | (#21146997)

It'd be like having on trial being found not guilty because the state couldn't prove it.
It should read:

It'd be like having [insert person here who has done many criminal and despicable things] on trial being found not guilty because the state couldn't prove it.
That and someone who has pirated many things found not liable because the RIAA couldn't prove it, both leave everyone dissatisfied. It doesn't mean they're not at fault. It means they got away with it this time. Either the law should recognize that sharing music over p2p programs without the copyright holder's permission is legal or people should stop doing it. Having the law say its illegal and people getting away with it on technicalities, that isn't good for anyone.

Re:Yet another "not liable by technicality" (5, Insightful)

rking (32070) | more than 6 years ago | (#21147141)

It'd be like having [insert person here who has done many criminal and despicable things] on trial being found not guilty because the state couldn't prove it.
Infinitely better than having someone on trial who couldn't be shown to have done terrible things being nevertheless convicted on the basis that 'we just know you did it'.

Having the law say its illegal and people getting away with it on technicalities, that isn't good for anyone.
Again, it's not a technicality. And having the law say things are illegal but that we'll only punish people who can be proved to have done them is a very good thing indeed. Sometimes it will lead to unsatisfactory results(again, infinitely better than the results of the alternative), but it hasn't here.

You seem to be proceeding a. on the assumption that the defendant actually did infringe on the copyrights, which we don't know, and b. as if the judge had actually ruled the defendant not liable, which hasn't happened.

Re:Yet another "not liable by technicality" (1)

speaker of the truth (1112181) | more than 6 years ago | (#21147311)

Infinitely better than having someone on trial who couldn't be shown to have done terrible things being nevertheless convicted on the basis that 'we just know you did it'.
Right, but still hardly something worth celebrating over, as many here at slashdot do.

a. on the assumption that the defendant actually did infringe on the copyrights
Yes. As a human being I'm able to go with things such as common sense, common knowledge, reality and my gut unlike a court of law which has to find things on either a preponderance of evidence or beyond reasonable doubt. Are you truly saying you think this person hasn't shared music illegally over p2p?

Re:Yet another "not liable by technicality" (0)

Anonymous Coward | more than 6 years ago | (#21147545)

No, we're saying that the RIAA has no evidence that this particular person was engaged in copyright infringement. That's... you know... the whole point of a legal system. You need to have evidence. Since the policy of the US is theoretically "innocent until proven guilty" then, according to the law, he is to be handled as though he is innocent of the crime.

And if you feel otherwise, I hope you never get called for jury duty.

Re:Yet another "not liable by technicality" (1)

rking (32070) | more than 6 years ago | (#21147585)

Are you truly saying you think this person hasn't shared music illegally over p2p?
I am truly saying that I don't know, and have no opinion, on whether they have or not. I'm guessing you're basing your opinion on him having been accused and on his not having appeared to defend himself? Fair enough, but it doesn't seem much to go on to me.

I do think it's a good thing that the judge isn't willing to grant a default judgment (yet) without anything more to go on than that. I think it's a good thing that the RIAA will have the opportunity to bring evidence to support their claim and I think it's a good thing that the defendant has, and has had, the chance to defend himself. I see plenty of good to celebrate, though hopefully the sort of good that is quietly happening all the time and isn't particularly remarkable to this case.

Re:Yet another "not liable by technicality" (5, Insightful)

GodInHell (258915) | more than 6 years ago | (#21147609)

Yes. As a human being I'm able to go with things such as common sense, common knowledge, reality and my gut unlike a court of law which has to find things on either a preponderance of evidence or beyond reasonable doubt. Are you truly saying you think this person hasn't shared music illegally over p2p?
I'm not sure where you get the idea that "preponderance of the evidence" and "by looking at the evidence and going where my gutt tells me" aren't effectively the exact same thing. . . the judge can't peel back the layers of time to look at what really happened to see if the plaintiff has found 51% of the proof available.. he looks at what's been presented and then issues a ruling based on what he *feels* has been proven. That's why there's an appeal system - because judges often *feel* in ridiculous or plainly erroneous ways.


Now, the second question - has he done something Illegal - goes to the root of what the article is about. Since this is a question of law ruling - not a ruling on the facts - the judge is addressing EXACTLY that point. The Judge's answer was that there would need to be SOME proof this guy actually shared a file. Not someone using his account or his connection - but him. You need to show a tanglible link - some evidence that the defendant cannot counter with evidence to the contrary - that supports your position.

Now.. I hear you saying - but that's what I mean by "my gut" - the judge can't just look at the account name - see a guy named jeff - and say "you're guilty." The reason that is the case is that this is NOT the final disposition of the trial. This was RIAA requesting that the trial be ended now in their favor. A judgement before the jury reaches a conclusion on the evidence. In federal court there must be *no* relevant questions of fact left to be decided to support their ruling. This just forces RIAA to go through more of the trial - possibly even allowing a jury to hear the evidence and rule on their gutt. (Imagine, implementing the system our founder's evisioned!?)


And yes, your "feeling in your gutt" would be applicable if you were a juror and had listend to all the evidence - because it's a civil case, and the purden of proof is preponderance of the evidence.

-GiH

Re:Yet another "not liable by technicality" (0, Flamebait)

speaker of the truth (1112181) | more than 6 years ago | (#21147741)

The Judge's answer was that there would need to be SOME proof this guy actually shared a file. Not someone using his account or his connection - but him. You need to show a tanglible link - some evidence that the defendant cannot counter with evidence to the contrary - that supports your position.
Which means little more then people are able to break the law until you get caught. And people here celebrate this as if its a good thing.

Re:Yet another "not liable by technicality" (0)

Anonymous Coward | more than 6 years ago | (#21148041)

Again, the assumption that the person is more likely than not to have committed the infringement is the part you are failing on. If the RIAA cannot prove that this person committed a alleged offense based on real evidence presented (not just a gut feel) the court system has no choice in its duty to find in favor of the defendant. This is in fact a good thing -- Even if the person infringed. This is a protection of everyone's rights that requires a plaintiff to present evidence before finding in their favor. This isn't a technicality. This is a judge, analyzing the evidence and saying, there is not enough data here to support a default judgment.

I mean if we were to apply a similar (not exact, but still has to do with the court system) situation (this is /. after all). Take driving. (Oh no, the dreaded car analogy) A large portion of the general population has committed traffic offenses (speeding, not coming to a complete stop at a stop sign, not using a blinker to change lanes, etc, etc, etc.). The police can issue a citation to a random person and say we know you are guilty, but a judge/jury has a duty to analyze the evidence and make sure the offense happened in the way the police say it happened, and by the person they have identified.

In this case, the judge is saying, that they didn't provide evidence identifying the user was the person operating KaZaA and that they didn't provide a time frame that the offense allegedly happened.

I think the bigger source of celebration is that a judge is applying scrutiny to the evidence being presented rather than just accepting what the RIAA says as proof.

Re:Yet another "not liable by technicality" (0)

Anonymous Coward | more than 6 years ago | (#21148053)

No, it means that the RIAA can't just walk into a courtroom with a defendant, throw a bunch of papers on the judge's bench, then say, "He's clearly guilty your honor, let's just rule in our favor, wrap this thing up, and hit the golf course." It means that the judge says, "This evidence might be contestable, so I'm going to actually let this thing go to trial, where you present your evidence and the defendant gets to try and counter it."

So yes, we do celebrate this as a good thing, because it means the judges aren't just taking the RIAA's word as gospel truth just because they're the RIAA. Which is as it should be.

Re:Yet another "not liable by technicality" (0, Flamebait)

speaker of the truth (1112181) | more than 6 years ago | (#21148275)

Well I prefer not to celebrate people breaking the law and getting away with it. Different strokes for different folks I guess.

Re:Yet another "not liable by technicality" (1)

Volante3192 (953645) | more than 6 years ago | (#21148741)

So you've never broken the law? Ever?

Never went a few miles over the posted speed limit?
Never jaywalked?

It's akin to what IBM said to Sun, "There's lots of laws in this country. Are you sure we couldn't find one that you've broken?"

Not free and clear. (1)

GodInHell (258915) | more than 6 years ago | (#21148865)

Well I prefer not to celebrate people breaking the law and getting away with it. Different strokes for different folks I guess.
Again.. No one has "gotten away" with anything yet. The RIAA will actually have to mount a case - that's all. Since the defendant has elected not to appear in court he dosen't get to mount a defense. The RIAA will be able to put their case before a jury and ask a group of people to agree with them.

More specfically, let's quote TFA

Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs' consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the "KaZaA" online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, dentified only by the username heavyjeffmc@KaZaA, was determined to be the defendant.
Here RIAA, here is the roadmap of evidence - show me an IP, show me that this IP was leased to the defendant at the time someone was sharing these files from that IP... this is the minimal (and questionably reliable) level of evidence the RIAA has used in so many of its other cases. Bearing in mind that there was no opposing counsel to argue that any of RIAA's theories were sloppy or unproven - they just didn't present a case. . . but they still can. The case wasn't dissmissed. It's NOT over.


-GiH

Re:Yet another "not liable by technicality" (1)

49152 (690909) | more than 6 years ago | (#21149021)

Gotten away with it? Nobody has gotten away with anything.

This only means there has to be a full trial before the matter is settled one way or the other.

Re:Yet another "not liable by technicality" (0)

Anonymous Coward | more than 6 years ago | (#21149059)

Well I prefer not to celebrate people breaking the law and getting away with it.

I prefer to celebrate people not getting away with trampling the court system.

Re:Yet another "not liable by technicality" (1)

NoOneInParticular (221808) | more than 6 years ago | (#21148143)

Yes, and your preferred mode of operating law in a country is? Convict people *before* they break the law? Don't worry, happy days are coming your way.

Re:Yet another "not liable by technicality" (3, Insightful)

ScrewMaster (602015) | more than 6 years ago | (#21147811)

Are you truly saying you think this person hasn't shared music illegally over p2p?

Who knows. Who cares? Maybe he shared his entire MP3 collection but you see, that isn't the issue. This is about the methods the RIAA uses to determine if a particular individual is guilty of copyright infringement. That's been the sticking point all along, and the reason so many knowledgeable Slashdotters are against those people. Does modern copyright need major reform? Yes. Does that change the fact that it's the current law of the land? Nope. Nobody really argues that around here. Most of us do, it appears, believe that people should be judged guilty based upon actual evidence, not gut feelings, and not some attack lawyer's manufactured "proof." Nor should we be subject to the music industry's need to make examples out of us, regardless of our actual guilt. Don't excuse the RIAA's behavior: these are a bunch of bad dudes and they really need to have the shit kicked out of them (ah, in the legal sense, of course.)

Let's face it, the RIAA's "evidence" (and I use the term loosely) appears to have been deemed insufficient. It's about goddamned time! Seems to me the judge did the right thing: he told them to come back when they could prove it, which is something that I wish more judges had been doing the past few years. What, you mean their "evidence" is too weak? Won't hold up in court? Gee, that's too bad. Good thing we have judges and laws I guess, to help us sort this stuff out.

RIAA attorneys have been getting away with a lot of questionable proceedings (and outright lying to the court, any court) and I'm hoping maybe the judiciary is finally catching on. That's the only way we'll put a stop to this.

Re:Yet another "not liable by technicality" (1)

Paradise Pete (33184) | more than 6 years ago | (#21148177)

Are you truly saying you think this person hasn't shared music illegally over p2p?

Be sure to tune into next week's exciting episode, when sheriff Speaker of the Truth rides into town and locks up people who "surely must have done something wrong sometime."

Re:Yet another "not liable by technicality" (0)

Anonymous Coward | more than 6 years ago | (#21149497)

Right, but still hardly something worth celebrating over, as many here at slashdot do.
Oh, but it is. This ruling means that the RIAA has to actually produce some serious evidence to go with their accusations.

Are you truly saying you think this person hasn't shared music illegally over p2p?
Based on your statements, I think he has. Also based on your statements, I think you have.

Re:Yet another "not liable by technicality" (2, Insightful)

Apple Acolyte (517892) | more than 6 years ago | (#21148581)

What you are, in fact, objecting to is due process, a bedrock principle of our judicial system. One of the most important obligations of the courts is to ensure that the laws on proper procedure are followed. If a person's due process rights are violated, it is the court's responsibility to either declare a mistrial or find in favor of the wronged person. Due process issues may seem like technicalities at times, but they're actually terrifically important if you want fair trials.

Re:Yet another "not liable by technicality" (1)

speaker of the truth (1112181) | more than 6 years ago | (#21148589)

No I'm not objecting to due process. What I'm objecting to is people celebrating a criminal getting away with a crime. While yes we must let criminals go free for the system to work, that doesn't make it worth celebrating.

Re:Yet another "not liable by technicality" (1)

brouski (827510) | more than 6 years ago | (#21148663)

Who is a criminal? What crime has been committed? You know this is a civil matter, right?

Re:Yet another "not liable by technicality" (1)

speaker of the truth (1112181) | more than 6 years ago | (#21148717)

I'm sorry, is downloading and uploading copyrighted music without the copyright owner's permission legal now?

Re:Yet another "not liable by technicality" (0)

Anonymous Coward | more than 6 years ago | (#21150091)

Enough with your strawmen.

Re:Yet another "not liable by technicality" (1, Informative)

Anonymous Coward | more than 6 years ago | (#21149079)

It's not a crime! This is a civil case.

Re:Yet another "not liable by technicality" (1)

iamwahoo2 (594922) | more than 6 years ago | (#21147921)

Wow...

How could everyone in court know anything that has not been proven? The defendant "getting away" is not a bad thing. This is a good thing, and it is certainly not a technicality.

Re:Yet another "not liable by technicality" (1)

DeadChobi (740395) | more than 6 years ago | (#21148701)

You're misusing statistics by assuming that they give any information at all about a sample size of one. Furthermore, just because 50% of people are filesharers, it does not hold that there is a 50% chance that any one person is a filesharer. It holds only that, if 100 people are selected at random there is a significant chance that 50 of them will be filesharers. However, only 1, or 25 or 33 of them could actually be filesharers.

Re:Yet another "not liable by technicality" (0)

Anonymous Coward | more than 6 years ago | (#21149243)

You are RETARDED. Learn some basic stats before talking again.

Re:Yet another "not liable by technicality" (1)

jvkjvk (102057) | more than 6 years ago | (#21150749)

When the chances of someone being a filesharer is greater then 50% if someone is chosen at random, it becomes difficult to celebrate this person's innocence.
What? Are you saying that it's okay to go after a random person because the probability is that they are guilty? Or that you choose not to celebrate the fact they are innocent? or?

hmm.

Re:Yet another "not liable by technicality" (3, Insightful)

jbengt (874751) | more than 6 years ago | (#21147907)

"Decided by question of fact, not question of law."

Nothing has been decided except the judge's decision to not decide until an actual trial, or if the defendent continues to not respond, a hearing. Nobody has been found liable or not liable yet, neither in prinipcle nor because of proof or lack of proof.

This is about a motion for default judgement. By law, only questions of law can be decided by before a trial; facts, except uncontested facts, have to be decided by the finder of fact, usually the jury. (But, as you say, often it's better to have a bench trial. A good judge tends to be less emotional and more fact-based than a jury.)

The judge has ruled that the facts presented in the complaint, though uncontested by default and so taken as true, are, as a matter of law, insufficient to conclude a default judgement.

IANAL, YMMV, RTFA, etc. etc.

Re:Yet another "not liable by technicality" (-1, Flamebait)

kwandar (733439) | more than 6 years ago | (#21147945)

"instead of "not liable in principle" it's "not liable because they couldn't prove it". Judge's favorite way of avoiding responsibility for a legal precedent for hundreds of years."

Mod this down! What an asinine comment. Does he really expect the judge to find a defendant guilty with NO EVIDENCE OF GUILT?! When did the system suddenly change to guilty until proven innocent?

Re:Yet another "not liable by technicality" (1)

Dun Malg (230075) | more than 6 years ago | (#21148385)

Decided by question of fact, not question of law. Instead of "not liable in principle" it's "not liable because they couldn't prove it". Judge's favorite way of avoiding responsibility for a legal precedent for hundreds of years.
I'm sorry, but where the fuck have you been for the last 15 years? The judge essentially can't rule against the RIAA based on "not liable in principle" because the RIAA has written all the relevant laws and had their government lapdogs pass them. At this point, the law as it stands practically makes it illegal to have digital music and internet connectivity on the same computer. The only place the judge can rule against them is in the area of "you can't prove it".

Re:Yet another "not liable by technicality" (4, Interesting)

GodInHell (258915) | more than 6 years ago | (#21149255)

I'm sorry, but where the fuck have you been for the last 15 years? The judge essentially can't rule against the RIAA based on "not liable in principle" because the RIAA has written all the relevant laws and had their government lapdogs pass them. At this point, the law as it stands practically makes it illegal to have digital music and internet connectivity on the same computer. The only place the judge can rule against them is in the area of "you can't prove it".
Angry, but not unreasonable.

However, it is incorrect to assign blame for the wholeness of the problem on congress (really the last three congresses before the current one - which has just refused to correct earlier errors). You need to also spread some hate on the judges that have accepted a "making available" argument in leiu of actual proof of distribution. That has *literally* made it questionably legal to run ITunes with the built in content sharing app (on by default).


-GiH

Now, that's in interesting way to handle it (5, Insightful)

Rogerborg (306625) | more than 6 years ago | (#21146757)

If you read the actual ruling (and I know none of you will), it turns out that the defendant has been served, but has never bothered to respond or show up. The RIAA have then gone for a default judgement, but this apparently makes the judge responsible for carefully checking their allegations. Normally that would be the defence's job. So the defendant has in effect managed to get himself a free legal defence, of the very highest quality: the judge himself.

It's a risky strategy, but at least he isn't getting reamed by some guy who makes $300 an hour for playing a lawyer on Slashdot.

Re:Now, that's in interesting way to handle it (5, Informative)

rking (32070) | more than 6 years ago | (#21146841)

Denying a default judgment does not mean that the case goes away. It just means that the judge isn't prepared to rule on it on the basis of the facts currently in the record. The defendant can still lose later.

Re:Now, that's in interesting way to handle it (-1, Redundant)

Rogerborg (306625) | more than 6 years ago | (#21147273)

That's very insightful, but you appear to have posted it in the wrong comment. Perhaps you meant to start your own top level thread, rather than piggybacking on mine.

Re:Now, that's in interesting way to handle it (1, Informative)

Anonymous Coward | more than 6 years ago | (#21148105)

I know it tends to work that way in real life, but being an arrogant prick doesn't add weight to your arguments.

Re:Now, that's in interesting way to handle it (2, Informative)

Ra Zen (924419) | more than 6 years ago | (#21146877)

RIAA rarely brings cases to court in states where the defendants actually live. Convenient for RIAA. For the defendants, not so much. Also, due to any number of reasons, defendants are rarely notified of the suit with any reasonable time frame in which to respond. Thus, many cases have defendants missing court dates and having no representation. It looks bad for them, but it may not be their fault. I'm not sure if this happened here, but it is certainly a possibility.

Re:Now, that's in interesting way to handle it (1)

kwandar (733439) | more than 6 years ago | (#21148005)

It's a risky strategy, but at least he isn't getting reamed by some guy who makes $300 an hour for playing a lawyer on Slashdot.

I have to say that if my lawyer was only getting $300 an hour and was regularly on Slashdot, I'd be damned happy about it! IANAL. You obviously have no concept however of the going rate for lawyers or the difficulty of finding one who is well informed on the technical side (which would save many hours of time),

Let me also say that the lawyers I've seen on Slashdot seem to have a preponderance for defending those who can't afford to defend themselves. You should hope that if it happens to you, you end up paying only $300 per hour or and/or get a defense from a slashdot lawyer who is willing to help.

Semantics (0)

Anonymous Coward | more than 6 years ago | (#21146799)

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is (or was - does anybody actually use Kazaa anymore?).

Re:Semantics (3, Informative)

Anonymous Coward | more than 6 years ago | (#21146831)

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is
No it isn't. Can anyone speak English anymore? Kazaa distributed the product, not the media. You could reasonably descibe Kazaa as an online distribution medium; that would be accurate.

Re:Semantics (0)

Anonymous Coward | more than 6 years ago | (#21147019)

The data is what contains the music/movies/etc. How exactly would data be transferred without a media? All these silly semantic games, just to rationalize why it's not stealing when you download bootleg copies of "Transformers: The Movie."

Re:Semantics (0)

Anonymous Coward | more than 6 years ago | (#21147085)

The data is what contains the music/movies/etc. How exactly would data be transferred without a media?
As I said in the post you replied to "You could reasonably describe Kazaa as an online distribution medium". i.e. Kazaa is the medium. Or in your vocaculary it is "a media". It doesn't distribute the medium. It is the medium. It itself uses other media e.g. the internet, but it doesn't distribute that either.

Re:Semantics (0)

Anonymous Coward | more than 6 years ago | (#21147197)

Sorry, my implicit criticism of your use of words ("a media") was over the top. We all make typos or poorly edit our posts at times.

Re:Semantics (1)

funkyloki (648436) | more than 6 years ago | (#21149455)

All these silly semantic games, just to rationalize why it's not stealing when you download bootleg copies of "Transformers: The Movie."

Who would waste their time downloading that piece of crap? I mean c'mon, they killed off most of the characters, including Optimus Prime. I remember all the hype surrounding that movie when it came out in 1986, and boy, was I disappointed.
Oh wait, did you mean "Transformers", not "Transformers: The Movie"? Well ok then.

Re:Semantics (3, Interesting)

clarkkent09 (1104833) | more than 6 years ago | (#21147053)

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is

There is a difference between "online file sharing system" which is what the rest of the world calls it and "online media distribution system". I am surprised they didn't go for "online intellectual property stealing system", I guess they decided on a slightly more subtle approach.

Re:Semantics (1)

ConcreteJungle (1177207) | more than 6 years ago | (#21147955)

I guess they decided on a slightly more subtle approach Are you accusing the *IA of subtlety? Suing grandmothers and small kids isn't exactly subtle is it.

Re:Semantics (2, Informative)

st0rmshad0w (412661) | more than 6 years ago | (#21148593)

Definition: media, An object or device, such as a disk, on which data is stored.

Their term is incorrect even as a description, as Kazaa does NOT distribute media, if it sent you CDs in the mail that'd be different.

I can find no definiton for the term media that defines it as data or content.

Re:Semantics (1)

stubear (130454) | more than 6 years ago | (#21149145)

Merriam defines media as "a medium of cultivation, conveyance, or expression". I think a digital file certainly fits this definition. Therefore an Online Media Distribution System could certainly be one that distributes digital files, in this case music. The name is significant in that P2P is nothing more than distribution. As distribution is one of the five basic rights granted the owner of intellectual property, and arguably the most important to maintain and control, it behooves them to ensure that people can't become distributors of intellectual property for which they do not have the rights or permissions necessary to do so. You are more then welcome to write your own music and distribute it however you choose though.

For a reason (1)

GodInHell (258915) | more than 6 years ago | (#21148935)

Clearly, plaintiffs are entitled to relief if Dangler downloaded and distributed the Copyrighted Recordings without plaintiffs' consent. The question this Court must decide is whether plaintiffs have proven that those circumstances exist here. Although the complaint establishes that someone using the "KaZaA" online peer-to-peer file sharing service uploaded the Copyrighted Recordings, or otherwise offered them for distribution, the complaint does not identify details such as the time period during which the violations allegedly took place, or explain how that user, dentified only by the username heavyjeffmc@KaZaA, was determined to be the defendant.
There are some documents that need to be filed with the court that are not supposed to contain arguments. It's best if you use terms that are not SO argumentative in their nature that they can be used in all court filings. From a persuasiveness standpoint, they're making the decision that the persuasive power of using a slightly skewed term everywhere is better than using a heavily slanted term in some places and a different term elsewhere. Besides, in court, you can use inflection to mame the two phrases sound like they're the same thing anyway - or define a media distribution system AS a tool of theft. Prybar, check, lockpicks, check, 9mm, check, Kazaa, check. :/


-GiH

Re:Semantics (0)

Anonymous Coward | more than 6 years ago | (#21148711)

"Online media distribution system" isn't a proper noun, it's a description, and is a perfectly accurate and easily-understandable way to summarize what Kazaa is (or was - does anybody actually use Kazaa anymore?).

Really?! That's great!

I have never made use of any of these services (yeah, I haven't been keeping up). So tell me, what kind of media can I get through kazaa? Blank CDs or blank DVDs? Fresh cassette tapes? Eight track tapes? Maybe some more file space?

Oh wait...

Could somebody send RIAA a link to dictionary.com and have them look at the definition of "media"? Their legal arguments might be more clear if they learned to use English in a more goodly and better fashion.

Re:Kazaa still up.. (2, Informative)

Technician (215283) | more than 6 years ago | (#21148727)

does anybody actually use Kazaa anymore?

I thought they were sued out of existance like Napster (The new Napster is Napster in name only and is not the old Napster)

A Google search shows they are not gone yet. They are still there. Them and Limewire seem to be the number 1 & 2 sources of RIAA targeting.

http://www.kazaa.com/us/index.htm [kazaa.com]

A few lawsuits are good for the P-P community. It shows problems with user privacy so vast improvements can be made.

I hope the RIAA will like the new versions. The biggest one they have problems with is the oldest. It's called the sneakernet.
http://en.wikipedia.org/wiki/Sneakernet [wikipedia.org]

Most attacks due to it's excellent privacy is carried out as a public relations campaign and sometimes through malware.
http://www.usbhacks.com/ [usbhacks.com]
http://en.wikipedia.org/wiki/Don't_Copy_That_Floppy [wikipedia.org]
http://www.cosky.com/?q=node/27 [cosky.com]
http://en.wikipedia.org/wiki/Copy_protection [wikipedia.org]
http://en.wikipedia.org/wiki/Pod_slurping [wikipedia.org]

Defendant is still not out of the woods (5, Informative)

LinEagle (1180795) | more than 6 years ago | (#21146867)

If you read the pdf link to the decision [ilrweb.com], it is noted on page 4 at the bottom that there will still be a further hearing. It is here that the RIAA will get a chance to substantiate its claims.

However I will say it is good that the judge actually read the arguments and understood that the RIAA did not provide the evidence.

Damn activist judges. (-1, Troll)

Anonymous Coward | more than 6 years ago | (#21146883)

-Dubya

Communists! (4, Funny)

clarkkent09 (1104833) | more than 6 years ago | (#21146991)

Damn, another one gets away on a technicality. I can just imagine heavyjeffmc, sitting in his mother's basement, overflowing his chair, enjoying his loot of stolen south park episodes and van halen songs, surrounded by candy bar wrappers and empty soda cans, laughing at his victory. Some people get it all for free while the poor pop singers and movie stars have to bust their asses earning a living. There is no justice in this world, I tell ya...

No big news here, but... (4, Interesting)

Stanislav_J (947290) | more than 6 years ago | (#21147003)

No huge defeat for the RIAA here, but it does show how a savvy judge can recognize when evidence is flimsy or insufficient. That's why the RIAA really doesn't want any of these cases to hit the courts -- it requires a higher standard of proof from them, and that means more time and money proving the case. They know that most folks receiving a "letter of doom" from them will just cave in and pay the extortion money up front.

But to digress to a wider subject here.....do you think the RIAA understands that their tactics are but a finger in a dike? Do they honestly believe that their efforts have made any significant dent in file sharing of copyrighted material? And if not, then why do they persist? Just on principle alone? Despite what some here have implied, this can't be a cash cow for them -- the settlements offered are relatively low, and I can't imagine that they are not running in the red on these endeavors when you look at the bottom line. Even the much publicized recent $200K+ judgement they won, IF they could collect it (good luck with that), probably wouldn't even come close to covering their overall expenses so far.

I'd love to see statistics on what they have spent to go after filesharers versus what they have recovered in settlements. For that matter, I wonder how many active P2P users were sharing copyrighted stuff before the RIAA started their campaign, and how many do so now. I'm willing to bet that the numbers have not decreased, but increased significantly. After all, RIAA goes after a handful of people in the U.S. -- most have not been busted, and they can't even touch those outside the U.S. For that matter, how many folks sharing and downloading music on these networks have ceased to do so on their own out of fear that they will be busted? Probably a modest number, but certainly not a huge percentage. For every person that is busted or just stops on their own, I'm sure there are half a dozen more taking their place.

Maybe it really is just the principle of the thing, and they have to actively do SOMETHING to defend their members' copyrights simply to have a track record of doing so? You know, in the event of any future legal or legislative challenges to these copyrights, or the whole copyright system in general? Is there a provision in copyright law that requires that one to actively defend their copyrights in order to keep them? Help me understand this, please.

Re:No big news here, but... (1)

Jeff DeMaagd (2015) | more than 6 years ago | (#21147849)

I don't think the litigation is intended to make money. I do think it's an odd way of trying to "keep people honest" so that more people don't go out and illegally download or distribute music. I don't think it needs to keep EVERYONE honest. It doesn't work that way. For example, speeding is fined, but that doesn't stop speeders, but enforcing the speed law does keep the average speed down. I've seen this anecdotally in my town, for the short time when the town put the law enforcement on emergency only, average speeds went up. They contract a patrol car, they went back down again.

I think a lot of the people that do download either don't care, don't keep up with the news or are just taking their chances. The chances are good that they are safe unless there is some new way to prosecute or enforce the law. If one in a thousand are targetted, and those people are asked to pay $3000, then the average price the user pays is $3. So I think that goes to reinforce your statement that the nastygrams really aren't much of a revenue stream.

Re:No big news here, but... (1)

rhizome (115711) | more than 6 years ago | (#21148233)

do you think the RIAA understands that their tactics are but a finger in a dike? Do they honestly believe that their efforts have made any significant dent in file sharing of copyrighted material? And if not, then why do they persist?...Is there a provision in copyright law that requires that one to actively defend their copyrights in order to keep them?

  1. Yes [wired.com]
  2. No [ibid.]
  3. Historically the members of the RIAA cartel have had complete control over the distribution of all music. P2P/Filesharing threatens that control, so they are trying to stall adoption until they can figure out how to deal with it by suing those who participate in alternative distribution mechanisms. Make no mistake, they are suing people for voting with their feet. So far, the cartel members' adaptation has amounted more to lobbying than finding new business models, but at the core it's all about them wanting all of the money that you are paying for music and not sharing it with any dumb kids and their dotcom protocols. None of this bad press matters as long as they wind up with all of the control.
  4. You're thinking of trademarks. Copyright law requires no such diligence.

Re:No big news here, but... (0)

Anonymous Coward | more than 6 years ago | (#21148765)

Do they honestly believe that their efforts have made any significant dent in file sharing of copyrighted material? And if not, then why do they persist? Just on principle alone? Despite what some here have implied, this can't be a cash cow for them -- the settlements offered are relatively low, and I can't imagine that they are not running in the red on these endeavors when you look at the bottom line.

The RIAA's existence is solely dependent on the whim of the corporations who constructed it and continue to fund it. RIAA has to prove to Sony, et al, that it is doing some kind of good for them. Since they can't demonstrate that their methods have improved the bottom lines of their sponsors, they must be feeling pretty desperate by now, because all these lawyers are likely to be out of work pretty soon.

If you were on the Hiring Committee, would you recommend that your company hire a sleazebag lawyer whose last job was working for the RIAA? Wouldn't his name on the company roster introduce a slight whiff of two week old dead mouse in the cupboard? Who would want to work around that odor when there are so many perfectly good brand new law school graduates who haven't sullied themselves yet? I mean, it isn't like the experience of preparing RIAA cases is good for anything (except maybe the legal equivalent of busting kneecaps).

Expect RIAA to get increasingly vicious, ugly, and stupid as those employees who have any real world skills and a lick of intelligence find more meaningful work elsewhere. Expect that somewhere in this downward spiral, the RIAA corporate sponsors will decide they've thrown enough good money after bad, and shut the whole thing down. Then expect a minor flood of bad lawyers that will increase competition at the bottom-most rungs of the legal profession.

Re:No big news here, but... (1)

GodInHell (258915) | more than 6 years ago | (#21148983)

Even the much publicized recent $200K+ judgement they won, IF they could collect it (good luck with that), probably wouldn't even come close to covering their overall expenses so far.
I'm still convinced that this is a money MAKING operation. They are pushing enough cases through that document reuse is becoming more viable. They're also trying to stack up precedent to make these cases roll through quickly. From the RIAA's persepctive - all they need is a break-even to punish the "bad actors." From the law firm's persepctive - they're printing their own money with these cases. File sharing is unlikely to go away - so making this into a routine 1-to-2 thousand dollar intake for every two or three letters they send out with an occasionaly 20-100K outlay for a day in court to keep the process rolling is good bussiness - at least for the lawyers.

-GiH

Re:No big news here, but...THE NUMBER I'D LIKE TO (1)

Nom du Keyboard (633989) | more than 6 years ago | (#21149793)

I'd love to see statistics on what they have spent to go after filesharers versus what they have recovered in settlements.

The only number I'd like to see is how many sales are truly lost to P2P filesharing.

I don't mean how much RIAA member company profits have declined in the dot.com bust. That was a recession and all types of purchases were cut back. Also, very little new music is really all that exciting, all hype to the contrary.

And I don't mean how much money they've lost because they used to be able to make you buy an entire CD just to get the one song you really wanted, while that rest of that CD is UTTER JUNK! That should have been ruled Illegal Tying long ago, and had them fully slapped down hard.

The industry claims that every download equates to a lost sale. We know that's an outright lie, but no one is making them shut up about it yet as they should.

RIAA heading for a big fall? (1)

Nomen Publicus (1150725) | more than 6 years ago | (#21147047)

I wonder why the RIAA is persisting in taking this high risk approach. It may be cheap to not bother actually obtaining and presenting evidence, but when the courts realise that the RIAA is depending on lazy judges to just rubber stamp the case, there will surely be retribution.

Re:RIAA heading for a big fall? (4, Insightful)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#21148003)

I wonder why the RIAA is persisting in taking this high risk approach. It may be cheap to not bother actually obtaining and presenting evidence, but when the courts realise that the RIAA is depending on lazy judges to just rubber stamp the case, there will surely be retribution.
The reason is this: they don't actually have evidence that the defendant committed a copyright infringement.

Offtopic question (-1, Troll)

JackMeyhoff (1070484) | more than 6 years ago | (#21147245)

If I take a 2.4ghz wifi tuned antenna and modify it to take +5v and GND lines from a USB connector and plug it into the mains with my USB charger from my iPod will that effectively jam the 2.4ghz band? Thanks.

No (0)

Anonymous Coward | more than 6 years ago | (#21147283)

That was easy, and no, I won't help you further. You lack the most basic understanding of how things work - better work on that first. Secondly, I'm against electronic jamming.

Re:No (1)

JackMeyhoff (1070484) | more than 6 years ago | (#21148771)

Well, I managed to jam every AP in my area :) Set it to Israel channel spacing with Xtreme speed, full power and Adhoc connected. It just kicks em off in some cases permanently as some AP's presumably crashed :)

Re:No (1)

Nom du Keyboard (633989) | more than 6 years ago | (#21149887)

Well, I managed to jam every AP in my area :) Set it to Israel channel spacing with Xtreme speed, full power and Adhoc connected. It just kicks em off in some cases permanently as some AP's presumably crashed :)

The FCC will be knocking at -- er, crashing through -- your door shortly.

Claim Ignorance (4, Interesting)

JamesRose (1062530) | more than 6 years ago | (#21147301)

You've never used an online media distribution system, its a term they've made up, did they define it for the court? If they didn't they are referring to something they madeup. It's like walking into court and decalring from now on, you will be known as willy wonka. Just because they've made up this term and decided to use it, doesn't mean its a real word or a technical term. If it uses that term in a legal document have the case thrown out for having made up terms in it. Either that or contend that term refers to a small African Elephant that you've never had contact with (hell, it could mean anything)

Creative Commons Music Can Be Legally Shared (5, Interesting)

MichaelCrawford (610140) | more than 6 years ago | (#21147303)

We could all stay out of trouble if we downloaded and shared music with the permission of its copyright holder. The best way to know that one has permission is to look for a Creative Commons [creativecommons.org] license notice.

Here are some resources for you:

I placed my music under the Creative Commons Attribution ShareAlike license because I hoped that would enable more people to get to know my music. While I work as a programmer now, I've been studying piano so that, when I can pass the entrance audition, I can enroll in music school to study musical composition. I want to compose symphonies someday! By sharing my music freely, there will be plenty of fans ready to buy tickets to my performances when I'm ready to play professionally.

Re:Creative Commons Music Can Be Legally Shared (1)

Joe Jay Bee (1151309) | more than 6 years ago | (#21148637)

We could all stay out of trouble if we downloaded and shared music with the permission of its copyright holder. The best way to know that one has permission is to look for a Creative Commons license notice.

I'm sorry, that sounds like common sense there. (Creative Commons sense, perhaps?) The usual procedure here is to bitch and whine about copyright holders taking action to prevent copyright infringement, then claim that the solution to it is copyright infringement. Better luck next time. ;)

Shhhh! (0)

Anonymous Coward | more than 6 years ago | (#21147979)

"In case you're unfamiliar with the term 'online media distribution system,' that's because it is a term the RIAA coined 4 years ago to describe p2p file sharing accounts in its lawsuits; the term is not known to have been used by anyone else anywhere else."

Don't say that! If the RIAA hears you they'll realize they should patent the terminology and find a new reason to sue everyone.

My hourly rate on Slashdot (5, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#21148223)

So the defendant has in effect managed to get himself a free legal defence, of the very highest quality: the judge himself. It's a risky strategy, but at least he isn't getting reamed by some guy who makes $300 an hour for playing a lawyer on Slashdot.
kdawson, are you reading this?

I didn't know I was supposed to get paid for this.

Please tell Cmdr Taco to send me my check, I could really use the money.

Thanks. If I had known, I would have been much nicer to you guys.

You're not a Slashdot reader playing a lawyer (5, Funny)

patio11 (857072) | more than 6 years ago | (#21148825)

You're a lawyer playing a Slashdot reader. Same difference -- we can tell you don't belong here. Probably work out, have friends of the opposite sex, use a Windows box and think Perl is an abomination. And you're right, Perl *IS* an abomination, but you still don't belong here. :)

Where is the RIAA going to get the evidence from? (5, Interesting)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#21148259)

The key here is that the RIAA doesn't have any additional evidence to bring to the hearing; it has admitted under oath [blogspot.com] that it can't identify the individual.

So what they'll do is come armed with a bunch of backdated printouts and a lot of doubletalk, and hope to confuse the judge. Whether they can confuse this judge, as they have confused so many others, is, however, as you can see from the decision, quite problematic.

This would have been much better if (1)

spiritraveller (641174) | more than 6 years ago | (#21148417)

the headline were "Judge grants Defendant's summary judgment motion against the RIAA".

All this story says is that the RIAA didn't win yet. The judge denied the RIAA's motion for summary judgment, so there are issues of fact that will have to be decided by a jury. Sounds like the motion didn't have any merit anyway.

They will go to trial and some jury will decide that since the Defendant's name is "Jeff" and his username was "heavyjeffmc" he probably is the same guy. Unless there is some evidence of another guy named Jeff using the defendant's internet connection.

See (1)

cdrguru (88047) | more than 6 years ago | (#21149057)

Internet = No Consequences.

Your IP address is not your name. Your ISP does not claim that all activity on an account is the responsibility of the account holder. Therefore, tracking illegal activity to your IP address isn't good enough.

They need to get a photograph of who is at the keyboard. And without that, sorry, no evidience of wrongdoing. Unless, of course, you are an idiot and (a) use the same name lots of legal and illegal places or (b) blab about what you are doing. Both of those will get you in trouble.

Truth Is... (3, Insightful)

Nom du Keyboard (633989) | more than 6 years ago | (#21149625)

Truth is that it's likely impossible to actually prove that filesharing happened. Yeah, MediaSentry, now SafeNet, claims that they got downloads of infringing material from a certain IP at a certain time, but that's not capital-D Distribution because they work for the plaintiffs. Short of a keyboard+screenshot logger, illegal tapping of the broadband line right as it comes out of the computer, or a witness to the filesharing in question (and how would that witness even know who was downloading a file anyway, since KaZaA names are all aliases?), their is no actual proof of Distribution.

In the one court case the RIAA did win, Distribution was never proven. That woman was convicted, on a preponderance of the evidence, of Making Available. The jury was stupid, Internet illiterate -- and damn proud of it! Yet the two foremost authorities on copyright law (Nimmer, and the other one whose name escapes me -- IANAL) require that Distribution actually occur before the owner's exclusive right has been violated. That's impossible to prove with the evidence the RIAA has unless they can force someone to testify against the Defendant. In fact, turning somebody who probably participated in the downloading themselves is likely the only way the RIAA could honestly win a case with a fair jury and proper jury instructions.

Furthermore, even if "illegal" music files are found on a computer hard drive, that doesn't mean that they were "illegally downloaded" by the computer owner. They could have been ripped from owned or borrowed CD's. A friend could have brought over a data DVD of MP3 files and loaded them. The point is that MP3's on a computer hard drive alone is not evidence of illegal downloading.

Ray, you ask elsewhere what evidence to demand from the RIAA. Most of all you should require a guaranteed unaltered hard drive image of the computer that actually collected the evidence, this snapshot taken at the time that the Plaintiff's so-called evidence was collected. You also need them to Prove that the time clock on their screen shots matches the time clock that the ISP used when logging the IP address data. THESE ITEMS ARE CRUCIAL in determining that the evidence in question was accurately collected.

Consider, would you accept fingerprint data where you never questioned the technician on how it was gathered, or determined that he was using proper equipment with proper training? Or that the matching method used was the best available?

Would you accept as uncontaminated and properly tested DNA evidence from someone who had never shown any expertise in the area of DNA collection, could not provide proof that he had the equipment or training necessary to properly collect uncontaminated samples, or used a lab with no track record of being able to properly test samples?

How about a policeman who can't produce at trial the radar gun, in the condition it was in at the time he claims he caught your client speeding? There's a case pending right now where GPS evidence disputes the police radar evidence. And it can be very hard with a radar gun to know for sure which car it tagged. Would you accept that unquestioned?

I would hope not!

The evidence, methods, and personnel here require similar scrutiny. There is so much stuff that can go wrong in a personal computer these days, using questionable software (KaZaA in particular, which is the program that SafeNet maintains the use when they say "we went out on the internet like any other use could and found these infringing files offered for distribution"), virus/worm/trojan infections, adware/spyware, inept investigators.

And be sure to get the exact IP addresses the investigators used when downloading the files offered in evidence. There might be logs proving whether or not that IP addresses ever connected to the computers in question. In addition, the investigators may have been using illegal IP addresses in attempts to get around IP Address Blocking -- even if your clients don't even know what IP Address Blocking even is. This would be embarrassing to say the least, and might be illegal.

Everything the Plaintiffs have done we're told to accept on Information & Belief. You call them Unethical on your very own blog. I wouldn't accept a single thing they told me without the proof to back it up.

And if they can't supply the computers and hard drive images used, well spoliation of evidence should apply equally to them as it was used against one unlucky defendant who lost his case on no actual evidence against him.

Since they're only going by filenames... (1)

okmijnuhb (575581) | more than 6 years ago | (#21149725)

...how can they prove the content is what it says it is?
Suppose I filled my shared folder with files renamed as copyrighted mp3's, when they in fact were jpegs or something else?
. Does the MPAA actually download and examine the content of the files?

Re:Since they're only going by filenames... (1)

Nom du Keyboard (633989) | more than 6 years ago | (#21149857)

Does the MPAA actually download and examine the content of the files?

Yes, their investigators SafeNet (formerly MediaSentry) download a couple dozen songs for audio identification (they listen to them to see if it's the copyrighted version of the song in question), and then try to claim that they've proven that some songs are as represented, and that likely all the other ones are too!

A good reason to be using PeerGuardian, or some other effective method of implementing the P2P Blocklist of known P2P enemies. What they can't download, they can't use against you.

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