RIAA Will Finally Face the Music In Court 282
Falstaff writes "Exonerated RIAA defendant Tanya Andersen is expected to refile her malicious prosecution lawsuit against the RIAA today. The refiling will mark a significant watershed in the RIAA's fight against P2P users because for the first time, the group's tactics, secret agreements, and fee splitting with MediaSentry are likely to come to light, thanks to discovery. Andersen's attorney says he'll be 'digging into agreements between the RIAA, RIAA member companies, MediaSentry, and the Settlement Support Sentry. Part of that will involve looking at compensation, like how much MediaSentry gets from each settlement. "I'd love to know what kind of bounty MediaSentry got paid to supply erroneous identities to the RIAA," Lybeck says.' The judge has barred further motions to dismiss the complaint, which means the RIAA will have to face the music. 'Unlike the thousands of lawsuits filed so far, the RIAA does not have the luxury of walking away from this case if there's a real chance of embarrassing information being released. "Once discovery happens in the cases the RIAA brings, they run," Lybeck says. "This is our case now, and they can't run."'"
Re:Where's NYCL when you need him? (Score:5, Informative)
http://arstechnica.com/news.ars/post/20080313-andersen-attorney-on-riaa-suit-they-cant-run-now.html [arstechnica.com]
Re:Gentlemen, start your paper shredders (Score:5, Informative)
Its only if they have a reasonable data retention policy already in place, and can show that the deleted or destroyed information or records were destroyed in accordance with that plan - and that they have been following that plan rigorously and not just in this one instance, that they can justify not producing the records. If for instance they have formally established and been following a records retention policy whereby they state they will destroy email records after holding them in backup for say a 5 year period (higher in some industries where its specified by law how long you must preserve those records), and have done so and thereby cannot produce records from before that period, then a judge should not hold it against them during discovery. They made a plan, stuck to it prior to entering litigation, and the court has to recognize there is a cost associated with maintaining and backing up such data that should have a logical limit when the utility of that data has been reduced by the time that has passed. If however they have not followed that policy, don't have such a policy, or give the appearance of selectively applying it to hide potentially damaging evidence, they can have it held against them (possibly with the assumption that the information in question was damaging), and they can be fined by the court. They can even have the court summarily find in favour of the prosecution. They can be fined if they cannot produce the evidence in a reasonable period of time, and will usually bear the brunt of the cost of producing those records - no matter how difficult or expensive that may be - as long as the other side can produce sufficient cause to justify the importance of that evidence to their case. Sometimes the other side can be required to pay for some of the cost of course, if its reasonable. This can be extended well beyond physical records and emails, to include IM traffic, chat logs etc, all of which an organization bears a responsibility to back up and maintain. You can even be held liable if your backups cannot be restored due to changes to technology over time - you are expected to transfer those backups to a new format, or maintain the old equipment required to restore them etc. If you failed to place backups in offsite storage and they were destroyed in a fire, thats your fault too for not taking reasonable precautions and storing the backups elsewhere. I expect a few companies are going to get bit badly in the next few years when they cannot produce backups of all the IM traffic that passed over their networks for instance - because if anything that happened during those IM sessions has any bearing on anything legal, its a record that needs to be backed up, period. If you and I discuss a business deal, and then I send you an email that just says something like "About our conversation yesterday, lets do it" and the lets do it implies a verbal agreement to pursue a business deal, that email is a legal record, same thing if we agree via IM chat
So simply removing evidence by destroying it is not necessarily of any benefit to an organization when they hit the courts. The courts can and should take a very dim view of someone who deliberately destroys damaging evidence
IANAL, but I used to work for some who dealt with records retention, discovery etc, and picked up some of the details. Its surprising how many companies and organizations do not have and do not follow a logical retention policy with regards to data (apparently about 40%
Re:Gentlemen, start your paper shredders (Score:4, Informative)
Re:If She Doesn't Settle (Score:0, Informative)
Re:If She Doesn't Settle (Score:5, Informative)
500 Island Corporate Center
7525 Southeast 24th Street
Mercer Island, Washington 98040-2336
It's a relatively small practice - two partners and a dozen attorneys all told - so I would expect that anything mailed to Tanya Anderson c/o Lory Lybeck will reach her attention.
Comment removed (Score:4, Informative)
Lawyer just filed the suit (Score:3, Informative)
Re:If She Doesn't Settle (Score:5, Informative)
Re:If She Doesn't Settle (Score:5, Informative)
I also seem to remember that the DMCA being passed unanimously by both the House and the Senate before Clinton signed it into law. You want accountability for bad laws? Talk to your legislators.
My point about Judge Brown being a Clinton appointee was merely to help elucidate where she falls in the political spectrum, and you do a disservice to judges everywhere by reflecting any "sins of the father" on appointees of any President. Was Sandra Day O'Connor partially responsible for the Iran-Contra scandal because she was a Regan appointee? Is Justice Alito complacent for his role in any laws that may have been broken by the Bush administration purging thousands of emails by being a Bush appointee?
I think the answer you're looking for is no, they are not. Get some perspective, old-timer.
Comment removed (Score:1, Informative)
Re:If She Doesn't Settle (Score:5, Informative)
In a technical sense you're right, but that entirely ignores the political aspect.
If the DMCA passed with a veto-proof majority--and I seem to recall that it did--vetoing it will serve no practical purpose other than delaying it slightly and getting his name off it. That's nice in a "principles > all" sense, but it also weakens him as president for no gain. That means when even worse legislation comes up, with something much closer to the <66.6% support for his veto to be worthwhile, it will be that much harder to kill that bill. The opposition will rally around "let's kick him while he's down!" and the president's own party will have more trouble getting anybody to stand by or switch their votes for fear they're going to lose anyway.
None of this is to say that Clinton didn't ACTUALLY support the DMCA; he might very well have. It's simply saying that a president not vetoing a bill doesn't automatically mean he supports it. I wouldn't hold a president responsible in a situation like that where his veto does nothing anyway. (Though ironically I'd personally think better of him for doing it in the face of all those reasons not to.)
Re:If She Doesn't Settle (Score:4, Informative)
http://www.opensecrets.org/politicians/contrib.asp?CID=N00000019&cycle=2008 [opensecrets.org]
http://www.opensecrets.org/pres08/contrib.asp?id=N00009638&cycle=2008 [opensecrets.org]
Re:If She Doesn't Settle (Score:5, Informative)
I work for an ISP, and part of my job description is dealing with abuse complaints (including DMCA complaints.) The usual modus operandi when we receive a complaint is to verify that the address was in use, verify that traffic was coming from that port, and then send the user's name back. Someone else (not me) also contacts the user.
A few weeks ago, we got a request from a user who wanted to use the network to do research (it's a college town)--specifically research related to Bit Torrent. They wanted permission to conduct this research, and assured us that they would not be engaging in copyright infringement. They had written a special client which advertises hashes of the torrent, but never sends data.
Fast forward to about a week ago--two MPAA complaints against their IP address. We could also verify that there was no way that they were sending or receiving files--their traffic usage was actually pretty small.
My assumption based upon the data is that the company who sent the DMCA notification just looks at the IP addresses that the tracker advertises is a part of the swarm. They don't bother to download and verify that the torrent is what they think that it is, and it's in-line with other debacles of the sort (remember the usher mp3 one from several years back?), as well as some anomalies we'd seen where a notification time was shortly after a person had released their DHCP lease (sometimes the trackers don't immediately notice when a user has disconnected.) I'd love to say that I'm shocked, nay horrified that they would gather evidence in this way, but frankly, it makes good business sense. Why waste the time downloading every file? Almost everyone who gets tagged has been infringing copyright--there just aren't that many 'fake' files out there. And since almost everyone is actually doing it, they'll almost all settle. Those few who do not are easily handled by simply dropping the case.
For this reason, I would expect that blacklists like Peerguardian wouldn't really work all that well. Lots of people give me anecdotal evidence when I bring this up ("Well it works for me!") but that's kinda like saying that this elephant repellant is working because there aren't any elephants on my front lawn. I know a lot of people who engage in a lot of filesharing, and none of them have ever gotten DMCA complaints. Just based upon the number I see in my job, I know that they're not sending them to very many people, in general.
Re:I'm bored out of my mind... (Score:2, Informative)