Rochester Judge Holds RIAA Evidence Insufficient

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."

Yet another "not liable by technicality"

[SamP2]

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"

[Rogerborg]

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"?

Now, that's in interesting way to handle it

[Rogerborg]

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:Yet another "not liable by technicality"

[Anonymous Coward]

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"

[rking]

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:Semantics

[someone1234]

It is not a 'media distribution' system, it i a 'file sharing' system.

media != file

Re:Yet another "not liable by technicality"

[rking]

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"

[GodInHell]

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"

[ScrewMaster]

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"

[jbengt]

"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:RIAA heading for a big fall?

[NewYorkCountryLawyer]

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.

Generalize. Fitting Punishment.

[Erris]

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.

Re:Yet another "not liable by technicality"

[Apple Acolyte]

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.

Everyone can now make good quality recordings...

[patio11]

... 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*.

Truth Is...

[Nom du Keyboard]

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 -- ev

Re:Yet another "not liable by technicality"

[NMerriam]

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"

[19061969]

I prefer to find out whether people actually *have* broken the law first. Does this not make sense? Surely someone has to have actually broken the law before they can be punished? That's exactly what this case is trying to establish.

Re:This would have been much better if

[NewYorkCountryLawyer]

All this story says is that the RIAA didn't win yet.

Yeah, but it's bigger than you think. Because the RIAA doesn't have any more evidence. They've told the judge exactly how they think they've identified the infringer; and the judge noticed that their proof is defective. They don't have any more proof to come back with. They have admitted under oath, in their expert's deposition [blogspot.com], and at the Capitol v. Thomas [blogspot.com] trial, that they can't identify the actual infringer. So what are they going to come to the hearing with? Evidence they've sworn under oath doesn't exist?

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

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.

Thank you for that.

GP is saying that it's a "mere technicality" that the RIAA brought a frivolous suit unsupported by evidence. I hope the author thinks twice about such a ridiculous statement. If he or a loved one were sued unjustly, he wouldn't think it's a mere "technicality" that the people suing him had no factual basis for their lawsuit.

Re:Not free and clear.

[NewYorkCountryLawyer]

GP was written by a user who immediately jumps into every discussion about the RIAA with a pro-RIAA line. Since I have never met anyone in the real world other than people on the RIAA payroll who say such things I really wonder who he or it works for.

Re:Truth Is...

[NewYorkCountryLawyer]

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.

Excellent post, Nom..... I hope you get modded to +5. I will take all of the above into account. At present we are drafting our demand for documents, data, & things.

Re:Everyone can now make good quality recordings..

[NewYorkCountryLawyer]

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.

Not so. The producers are independents, often entertainers themselves.

Re:This would have been much better if

[NewYorkCountryLawyer]

So what are they going to come to the hearing with? Evidence they've sworn under oath doesn't exist?

I figure they'll just present whatever records they got from the guy's ISP that show he was using the IP address and then hire another expert who will sign an affidavit explaining how the IP protocol works and that the IP address is unique to the defendant's account at that particular time. They'll then have the investigator who downloaded the song file an affidavit explaining how and at what time he downloaded the song from that IP address. If they really want to go nuts, I suppose they could do something like subpoena the defendant's landlord to testify that he's the only one who lives at that residence. If these were criminal cases, I'd have a field day defending these folks, but with the standard of proof in a civil case, it's got to be tough for a defendant to win. But I defer to your judgment, as you're the expert. I really appreciate your contribution here.

This appears to be a good judge who follows the law. Therefore

they won't be able to bring affidavits but will have to bring witnesses

the witnesses will have to be competent to provide the testimony they will attempt to introduce

the exhibits will have to be authentic

the exhibits will have to be properly authenticated

the investigator witness will have to show he's properly licensed

the evidence will actually have to prove that the defendant committed an infringement of one of the rights enumerated in 17 USC 106(3).

I.e., even with the defendant in default, they will not be able to prove their case, which means they will likely lose.

I would not be surprised to see them quietly forget about this case.... they've bumped into a judge who sees through their lack of evidence. They can stand on their head but will not be able to actually prove a prima facie case with the garbage they have.

Re:Semantics

[networkassault]

The very term "Online media distribution system" is so broad that it could cover YouTube, the iTunes Store, Napster, and eMusic, just to name a few. Heck, it's even broader than that. Since text is a form of media, this site and all sites on the web are "online media distribution systems." This was probably the RIAA's intent. Create a term that is so broad that it could be applied to anyone you dislike and that causes a sufficient level of confusion. Since the RIAA is unable to prove much about the majority of filesharing cases, they feel that they can get away with overly vague terms, as opposed to factual evidence.

Re:This would have been much better if

[NewYorkCountryLawyer]

they won't be able to bring affidavits but will have to bring witnesses

I thought this was similar to a motion for summary judgment, where you can file affidavits to show what the testimony would be if it went to trial. If your defendant is in default, why would you have to do anything more than state a claim? Forgive my ignorance, I don't practice in Federal court. Last time I moved for a default judgment, it was granted and I didn't have to present ANY evidence.

The judge has ruled that their affidavits were not sufficient and that he is requiring a hearing.

Copyright infringement cases are tort cases, not contract cases. When is the last time you saw a default judgment entered on a negligence claim?

Re:Yet another "not liable by technicality"

[NewYorkCountryLawyer]

Many perfectly legal and moral fair uses are either forbidden outright, or falsely claimed to be forbidden.

Forbidden? No.

Falsely claimed to be forbidden? Yes.

It is the content cartel's oppressive wave of frivolous litigation that is most at fault. It needs to be slapped down by alert judges, like Judge Larimer.

Excellent post, by the way.