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Rochester Judge Holds RIAA Evidence Insufficient 169

Posted by kdawson
from the so-prove-it-already dept.
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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Rochester Judge Holds RIAA Evidence Insufficient

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  • by DrXym (126579) on Sunday October 28, 2007 @05:08AM (#21146689)
    Heavy Jeff is said to be delighted at the ruling.
  • by SamP2 (1097897) on Sunday October 28, 2007 @05:13AM (#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: (Score:3, Insightful)

      by Rogerborg (306625)
      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"?
      • by ZachPruckowski (918562) <zachary.pruckowski@gmail.com> on Sunday October 28, 2007 @08:16AM (#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.
        • by Erris (531066) on Sunday October 28, 2007 @10:32AM (#21148033) Homepage Journal

          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.

          • ... 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*.
            • 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?

            • 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*.

              That's their fuction as "taste filters." Essentially - most people don't want to sort through a sack of crap to find one nugget of gold. Music labels do that job of sorting for you. A site which allows music authors and performers to upload - but allows users to do the tagging and rating - would be a nice replacement for that last (poorly accomplished) bit of work.

              Of course, you have to convice artists to put up with tags like "sell-out" "shit sucker" and the even more painful "uninspired."

              -GiH

      • Dude, judges often try to find some issue to deflect their having to make a decision on the matter at hand. I'd call it "better safe than sorry and leave no trail". It's the truly brave judges who will decide that a "principle" matters. Research desegregation in USA public schools and Roe v. Wade.
    • by rking (32070) on Sunday October 28, 2007 @05:38AM (#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.
      • 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: (Score:2, Insightful)

          by rking (32070)

          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).

        • by DeadChobi (740395)
          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.
        • by jvkjvk (102057)

          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.
          • No I'm not saying its okay. I'm just saying lets not celebrate this person getting off. Its like if a rapist was arrested. I would want him to be found guilty beyond all reasonable doubt or otherwise set free. I wouldn't be happy if he was set free and was the rapist, I certainly wouldn't celebrate it. As people here at slashdot do anytime someone gets away with copyright infringement because the RIAA couldn't prove they did it with a preponderance of evidence.
            • FILESHARING = RAPE

              Wait... I bet you work for the RIAA. In that case, I can understand your argument.
              • FILESHARING = RAPE
                No, that isn't what I said. I find it quite sad you do not grasp the most basic rudiments of the English language to realize this. You are a prime example on why no child left behind does more harm then good. I hope its repealed in time for your children.
    • by jbengt (874751) on Sunday October 28, 2007 @10:11AM (#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.
    • by Dun Malg (230075)

      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".

      • by GodInHell (258915) on Sunday October 28, 2007 @01:50PM (#21149255) Homepage

        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

        • You need to also spread some hate on the judges that have accepted a "making available" argument in lieu of actual proof of distribution.
          I am only aware of a couple of judges that have accepted the argument, and in none of those few cases was the issue adequately briefed. I predict that you'll see a different result as the Courts take hold of fully briefed motions and appeals. You will see the RIAA's 'making available' theory slapped down.
      • Re: (Score:3, Informative)

        At this point, the law as it stands practically makes it illegal to have digital music and internet connectivity on the same computer.
        I respectfully disagree with you there. There is nothing whatsoever in US copyright law that justifies the RIAA's bizarre legal arguments. You just feel that way because the RIAA has been on this binge for 4 years, and the courts haven't thoroughly smacked them down yet.
        • I'm glad to see that you have confidence that the courts will put paid to their little scheme. It does seem like the judiciary is running more interference than it used to.
    • Still, if he runs for reelection or whatever, I'll be sure to vote for him. Yay for living in Rochester, NY.
    • by mpe (36238)
      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.

      This is hardly a "technicality". It's a rather basic requirement for a plaintiff to prove their case.

      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 - technicalities count, precisely for the reason that
  • by Rogerborg (306625) on Sunday October 28, 2007 @05:27AM (#21146757) Homepage

    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.

    • by rking (32070) on Sunday October 28, 2007 @05:54AM (#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: (Score:2, Informative)

      by Ra Zen (924419)
      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.
    • by kwandar (733439)

      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 ha

      • by Rogerborg (306625)

        Depends on the lawyer and why you need them. If you're betting your business in litigation, pay more. If you're contesting a traffic charge on a technicality, don't. In this case, clearly $300 an hour is $300 more than the accused needed to pay.

        You get that the suggestion that there are any actual lawyers on Slashdot is a joke, right? There are no lawyers, girls or non-virgins on here, except me and thee, and I'm not so sure about thee.

  • by LinEagle (1180795) on Sunday October 28, 2007 @06:03AM (#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.

  • Communists! (Score:5, Funny)

    by clarkkent09 (1104833) on Sunday October 28, 2007 @06:40AM (#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...
  • by Stanislav_J (947290) on Sunday October 28, 2007 @06:43AM (#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.

    • 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
    • by rhizome (115711)
      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 con
    • by GodInHell (258915)

      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

    • 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

    • 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.

      I think the point is they make more from each settlement than the cost of extorting it. True, not a cash cow, but it certainly costs them nothing. In dollars.

  • Claim Ignorance (Score:5, Interesting)

    by JamesRose (1062530) on Sunday October 28, 2007 @08:04AM (#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)
    • I tend to agree. If the term does not have widespread currency, which could mean that it is used in dictionaries and in common usage, used by professionals in the practice of their profession (a medical, engineering, scientific, political, or economics related term or something that professionals of a particular field could be called to define in their testimony), or defined explicitly by law then it should be regarded as a meaningless statement and stricken from the record of the court and not considered.
  • by MichaelCrawford (610140) on Sunday October 28, 2007 @08:04AM (#21147303) Homepage Journal
    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.

  • 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.
    • by patio11 (857072) on Sunday October 28, 2007 @12:56PM (#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. :)
      • Re: (Score:3, Funny)

        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. :)

        Guilty on all counts except about Perl.... I don't know enough about Perl to form an opinion.

        Does it help that (a) I don't like Windows (b) I went to Bronx High School of Science, and (c) I used to have pocket protectors until I misplaced them after graduating from high school?

        • by xtracto (837672)
          c) I used to have pocket protectors until I misplaced them after graduating from high school?

          That would make you a nerd... which is different from a geek. But hey, slashdot is supposed to be "news for nerds" so I guess you would be more "on site" than lots of geeks here :).

          BTW, the other day I talked with my lawyer friend about Copyright infringement in Mexico. It seems (from what he told me) that in Mexico it is a criminal offence (copyright infringement). So if you get sued of C.I. over there you get to g
          • c) I used to have pocket protectors until I misplaced them after graduating from high school? That would make you a nerd... which is different from a geek. But hey, slashdot is supposed to be "news for nerds" so I guess you would be more "on site" than lots of geeks here :). BTW, the other day I talked with my lawyer friend about Copyright infringement in Mexico. It seems (from what he told me) that in Mexico it is a criminal offence (copyright infringement). So if you get sued of C.I. over there you get to go to a criminal court (instead of the civil court... it is more or less similar). The advantage? is that they *must* absolutely prove (without any doubt)that you are the one that infringed the copyright. So far, I believe no one has been targeted there for copyright file swapping and all that... of course I guess the RIAA knows that they can't extort too much money from us poor beaners =oP.

            Yes I guess you're right, although I was so closely associated with geeks that I considered myself to be one of them. The thing is, I didn't really fit in as a nerd, either, because I lived in a very tough neighborhood, and took no guff from bullies. So I guess I was neither a full fledged nerd, nor a qualified geek... I was merely someone who found friendship among such people, more easily than I found it among the ghouls, vultures, hyenas, and other carrion feeders of the world, like the RIAA's running d

            • by xtracto (837672)
              Yes they would go after people criminally if they could.... they would stop at nothing... in some countries, such as France, they bring criminal not civil cases.

              In the US if they tried to bring such cases they'd probably go to jail themselves for filing false criminal complaints.


              I think you missunderstood my comment. The fact that they file criminal charges in Mexico is because it is stipulated in Mexican law that copyright infringement cases are indeed criminal cases. It is curious that you mention France,
  • 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.
  • 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 anothe
    • Re: (Score:3, Insightful)

      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 exi

      • 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 somethi

        • Re: (Score:3, Insightful)

          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 1

          • 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.
            • Re: (Score:3, Insightful)

              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?

  • by cdrguru (88047)
    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 i
  • Truth Is... (Score:4, Insightful)

    by Nom du Keyboard (633989) on Sunday October 28, 2007 @02:44PM (#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 -- ev

    • Re:Truth Is... (Score:4, Insightful)

      by NewYorkCountryLawyer (912032) * <ray AT beckermanlegal DOT com> on Sunday October 28, 2007 @06:59PM (#21151763) Homepage Journal

      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.

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