Rochester Judge Holds RIAA Evidence Insufficient 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."
Good news for the defendant (Score:3, Funny)
Re:Good news for the defendant (Score:5, Funny)
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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" (Score:5, Insightful)
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.
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Re:Yet another "not liable by technicality" (Score:5, Informative)
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. (Score:5, Insightful)
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... (Score:3, Insightful)
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.. (Score:2)
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.. (Score:4, Insightful)
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What makes you think I didn't include songwriters in the "artist" category...?
As for the performers? Look up performing arts [wikipedia.org] for an idea of why people would consider them "artists".
Taste Filter (Score:2)
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
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Even in the worst examples of an engineered performer - N-sync or Spice Girls - I may never buy one of their albums - but there are people
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Re:Yet another "not liable by technicality" (Score:5, Insightful)
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).
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Uhmmm, did you just say that the jury doesn't have the last word? You're wrong. The jury decides the final verdict, regardless of what anybody else thinks, even if it's against the written law. The jury is ABOVE THE LAW.
"The jury has a right to judge both the law as well as the fact in controversy."
John Jay, 1st Chief Justice
United States supreme Court, 1
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No, the jury does not have the last word in convictions. They have the last word in acquittals -- if a jury finds someone not guilty, nobody anywhere can overturn them. But if a jury convicts, and the judge believes the prosecution didn't meet the burden of the law, they can overturn the jury's conviction.
That's what I meant when I said it was the best of both worlds -- you can be acquitted based purely on jury emotions, but yo
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Re:Yet another "not liable by technicality" (Score:5, Informative)
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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).
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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" (Score:5, Insightful)
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.
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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" (Score:5, Insightful)
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
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Not free and clear. (Score:2)
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 i
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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" (Score:4, Insightful)
Re:Not free and clear. (Score:4, Insightful)
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That is a necessary side effect of the rule of law. You don't get to go off half-cocked and play vigilante. You have to play by the rules. The fact that the rules allow for some evil to go unpunished is the PREFERRED state of things.
We presume innocence for a reason.
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I have met such people in the real world, but they are generally uninformed and believe what little they've heard in the news about these issues (usually media company disinformation.) Nobody with more than a cursory understanding of the facts should be able to rationalize defending these creeps, and nobody whose spent much time on Slashdot reading threads like
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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.
Re:Yet another "not liable by technicality" (Score:4, Insightful)
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.
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Re:Yet another "not liable by technicality" (Score:5, Insightful)
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.
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Quite true according to what some of my friends from mainland China have told me. Often enough, an accused person will not even be able to really defend themselves. The attitude is usually "Shut up! You're a crim
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hmm.
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Wait... I bet you work for the RIAA. In that case, I can understand your argument.
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Re:Yet another "not liable by technicality" (Score:4, Insightful)
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.
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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" (Score:5, Interesting)
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
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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
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More seriously (or less humorously), the headline is offtopic and completely false. Your not having any proof of my wrongdoing is NOT my "getting off on a technicality". You've never robbed a bank, so is your never having been convicted of bank robbery "getting off on a technicality?" We're supposed to be innocent until proven guilty. It's thinking like this, where lack of evidence of your guilt means you "got off on a technicality", is what's got us heading towards the police state I maintain we are already in.
Keep saying stuff like that and you'll never be able to get a job at the RIAA, or with SONY BMG, Warner Bros, EMI, or Vivendi/Universal.
Now, that's in interesting way to handle it (Score:5, Insightful)
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 (Score:5, Informative)
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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
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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.
Defendant is still not out of the woods (Score:5, Informative)
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)
No big news here, but... (Score:5, Interesting)
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.
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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
Re:No big news here, but...THE NUMBER I'D LIKE TO (Score:2)
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
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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)
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Creative Commons Music Can Be Legally Shared (Score:5, Interesting)
Here are some resources for you:
- Creative Commons Search [creativecommons.org]
- Jamendo [jamendo.com] - CC music distributed via BitTorrent and eMule
- My own piano music [geometricvisions.com] - you could really help me out if you shared it on the Internet
- The Mutopia Project [mutopiaproject.org] - CC and public domain sheet music
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.My hourly rate on Slashdot (Score:5, Funny)
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 (Score:5, Funny)
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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?
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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
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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
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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,
Where is the RIAA going to get the evidence from? (Score:5, Interesting)
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 (Score:2)
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
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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
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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
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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
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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.
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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?
See (Score:2)
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)
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)
Re:Semantics (Score:5, Funny)
Re: (Score:3, Informative)
Re: (Score:2, Insightful)
Re:Semantics (Score:4, Insightful)
media != file
Re:Semantics (Score:4, Interesting)
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: (Score:3, Informative)
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: (Score:2)
For a reason (Score:2)
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
Re:Kazaa still up.. (Score:3, Informative)
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 bigge
Re:RIAA heading for a big fall? (Score:5, Insightful)
Re: (Score:2)
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 ene
Re: (Score:2)
The FCC will be knocking at -- er, crashing through -- your door shortly.