RIAA Smacked Down in 2005(Title Change)

[bazooka]

www.boycottriaa.com

This is a heck of a way to start out the new year.

RIAA Smacked Down Again
Posted by George D. Ziemann on January 5, 2005 at 12:55 AM (printer friendly)

The 8th Circuit Court of Appeals slammed the RIAA hard today, denying them the ability to obtain subpoenas, at least in the Eastern District of Missouri.

According to the court's decision" (Click here for PDF file. http://www.ca8.uscourts.gov/opndir/05/01/033802P.pdf

"The dispute arose when the Recording Industry Association of America (RIAA) requested the clerk of the district court to issue subpoenas under § 512(h) to Charter Communications, Inc. (Charter),1 in its capacity as an ISP, requiring Charter to turn over the identities of persons believed to be engaging in unlawful copyright infringement. The district court issued the subpoenas and denied Charter's motion to quash. We reverse."

Why? Among other things, "This Circuit has never determined whether music downloaded from P2P systems violates the copyright owner's rights or is a fair use. The RIAA, to our knowledge, has never prevailed in any infringement actions brought against individual downloaders."

It's looking like the RIAA is coming to the point where they have to present an actual case.

If they ever had one.

[bazooka]

This is one more nail in the coffin

[yoda313]

This is one more nail in the coffin

Hello,

Yeah but we have to start a new protest of the WRAMPIA! (the mpaa/riaa merge :P).

Kevin

[bazooka]

This is one more nail in the coffin

Hello,

Yeah but we have to start a new protest of the WRAMPIA! (the mpaa/riaa merge :P).

Kevin

If that even happens

[888888]

Number of new RIAA label CDs me or my friends will buy in 2005- 0.

Number of new MPAA studio DVDs me or my friends will buy in 2005- 0.

Number of MP3s me or my friends will buy from Napster or the like- you're kidding right?

I will however make an effort to buy as many pro-artist, anti-RIAA, independant label records that I can.

I hope they will get the message that companies should not abuse, harass, and rip-off their own customers.

The ruling is very encouraging news Bazooka and thanks for posting it.

[bazooka]

The ruling is very encouraging news Bazooka and thanks for posting it.

No problem

[adam]

Well it still doesn't change anything. They just have to keep filing John Doe suits like the Court said.

This case was a lost cause, the DMCA Safe Harbor provisions seem to pretty clearly apply to this type of isp. But ultimately the RIAA and MPAA are just trying to save money in bringing suits which are going to be brought anyway. They've got like 10,000 ip addresses who they can prove violated a copyright. They'd like to subpoena the names and addresses of these individuals all at once under the DMCA, so they can bring suit, but now they can't...at least in the 8th Circuit. So they have to file 10,000 individual John Doe suits and then subpoena the names individually for each one, amend to add the correct names, and then proceed to trial. It takes substantially more time and money though, and this gets passed on to the defendant once they lose and have to pay the RIAA/MPAA's attorney's fees.

[bazooka]

Well it still doesn't change anything. They just have to keep filing John Doe suits like the Court said.

This case was a lost cause, the DMCA Safe Harbor provisions seem to pretty clearly apply to this type of isp. But ultimately the RIAA and MPAA are just trying to save money in bringing suits which are going to be brought anyway. They've got like 10,000 ip addresses who they can prove violated a copyright. They'd like to subpoena the names and addresses of these individuals all at once under the DMCA, so they can bring suit, but now they can't...at least in the 8th Circuit. So they have to file 10,000 individual John Doe suits and then subpoena the names individually for each one, amend to add the correct names, and then proceed to trial. It takes substantially more time and money though, and this gets passed on to the defendant once they lose and have to pay the RIAA/MPAA's attorney's fees.

I cannot argue with anything you said, but the fact remains that they are pinning their hopes on something that is not an exact science.

IP numbers is not a very good way to track them, because the numbers are dynamic and change all the time. That is how they have pinpointed wrong people in the past.

[adam]

Hmm, I don't see how it makes a difference whether the ip is static or dynamic. They log the time of infringement and the ip that did it at that time. The ISP has a record of who used that ip at that time, thus there is no room for confusion or mistake even if the infringer's ip has changed since.

The mistakes that have been made involved misleading filenames mostly. They log someone downloading/uploading a file that appears to be copyrighted by the filename, but it later turns out to be some public domain source, or something which the person had the rights to distribute (ie: I upload home movie titled, HomeAlone.mpg and the MPAA thinks I'm uploading that stupid Mcaully Kulkin film.)

And there was at least one case where they sued a minor. I have no idea how that could have happened though.

[bazooka]

Hmm, I don't see how it makes a difference whether the ip is static or dynamic. They log the time of infringement and the ip that did it at that time. The ISP has a record of who used that ip at that time, thus there is no room for confusion or mistake even if the infringer's ip has changed since.

Mistakes were made that accused several people that had macs and could not use the software. There was a couple that were targeted that had no computer. One person was accused of uploading latino music. He did not understand spanish and hated the music because he did not understand the music.

And there was at least one case where they sued a minor. I have no idea how that could have happened though.

That is a long story.

The isp's do not keep their logs for very long.

Whether it is static or dynamic makes all the difference in the world between nailing the right person or the wrong person.

[adam]

Mistakes were made that accused several people that had macs and could not use the software. There was a couple that were targeted that had no computer. One person was accused of uploading latino music. He did not understand spanish and hated the music because he did not understand the music.

With the exception of the nonexistant computer (no idea), I bet those mistakes were the result of an unsecure line where someone else was doing the infringing. But this is just a defense, which if true should get you off the hook. The copyright holders are still entitled to your name and address if they have reasonable cause to believe that you have infringed on the copyright (you are granted no less in any other suit of any kind).

My lawfirm actually sued the wrong guy because we had surveillance of his twin brother doing something at his house (the house of the guy we sued.) There is just no way to avoid a mistake like that under those circumstances, its totally reasonable. We looked ridiculous in court, but we still had every right to sue him based on the evidence we had gathered. I don't think that the inevitableness of mistakes like this should preclude you from using those means to track potential infringers.

Whether it is static or dynamic makes all the difference in the world between nailing the right person or the wrong person.

I just explained why this is completely untrue. It is the ip used at the time of the incident which the copyright holder subpoenas. It doesn't matter if it has changed since.

[bazooka]

Mistakes were made that accused several people that had macs and could not use the software. There was a couple that were targeted that had no computer. One person was accused of uploading latino music. He did not understand spanish and hated the music because he did not understand the music.

With the exception of the nonexistant computer (no idea), I bet those mistakes were the result of an unsecure line where someone else was doing the infringing. But this is just a defense, which if true should get you off the hook. The copyright holders are still entitled to your name and address if they have reasonable cause to believe that you have infringed on the copyright (you are granted no less in any other suit of any kind).

My lawfirm actually sued the wrong guy because we had surveillance of his twin brother doing something at his house (the house of the guy we sued.) There is just no way to avoid a mistake like that under those circumstances, its totally reasonable. We looked ridiculous in court, but we still had every right to sue him based on the evidence we had gathered. I don't think that the inevitableness of mistakes like this should preclude you from using those means to track potential infringers.

Whether it is static or dynamic makes all the difference in the world between nailing the right person or the wrong person.

I just explained why this is completely untrue. It is the ip used at the time of the incident which the copyright holder subpoenas. It doesn't matter if it has changed since.

Again, I cannot argue anything you said. They do have a right to that info. I was just letting you know as a network specialist, that it is very easy to get the wrong person.

[MrMoody]

Hmm, I don't see how it makes a difference whether the ip is static or dynamic. They log the time of infringement and the ip that did it at that time. The ISP has a record of who used that ip at that time, thus there is no room for confusion or mistake even if the infringer's ip has changed since.

There's plenty of room for confusion. One word: Clocks.

Logs that record an event time depend on a clock to record that time. What happens of the evidence-gatherer's clock disagrees with the ISP's clock? The issue of time zones confuses things too. Not all ISP logs are recorded in their local time, or are even located in the same time zone as the customer. I'd want the ba****ds to PROVE their clock was perfectly synchronized with my ISP's at the time they recorded the upload.

I applaud the ISPs who are sticking up for their customers BTW. If I ran one, there'd be no logs kept at all, just current status.

[adam]

I don't know the exact measures these watchdog groups use in collecting their evidence. I wouldn't imagine that there would be any difficulty whatsoever with ensuring that their time was synchronized with the isp's, or the rest of the world for that matter, as this is done all the time in all areas of industry. To account for time zone differences all you need to do is note the time zone you are in. The corresponding times in all other time zones can easily be derived from this exactly. And yes, if these issues were raised by the Defendant then the Plaintiff would have to prove them, but they are going to be accurate anyway just as a matter of practice.

ISPs are required to log a certain amount of user activity by Federal Law, and naturally they have to make sure that the logs are accurate so its unlikely there would be any meaningful discrepancies in time.

We are not talking about a small time frame where a guy downloads something, powers off and loses his ip, and another assumes it shortly thereafter, and now the isp isn't sure who actually did the downloading. The RIAA/MPAA would monitor the infringing ip's activity over a period of time, naturally. These types of suits are not even remotely profitable unless you rack up statutory damages for each instance of infringement, which is why they are primarily going after uploaders instead of downloaders. So they are going to sit there and watch this guy upload to half the world. It takes more then a couple minutes to upload that many complete files. This is long enough of a time frame to account for any time discrepancies, which I'm guessing register in the miliseconds anyway. I imagine most of the surveillance is conducted over a series of days.

To be honest, these sorts of mistakes (suing minor, or wrong person, or dead person, or someone who could not possibly have done it, etc...) happen all the time in all sorts of suits. There just aren't websites like BoycottRiaa reporting them everytime they happen. The Courts have numerous safeguards to weed out the enevitable mistakes.

[bazooka]

I was researching this further on www.slyck.com and according to the court decision, the DMCA does not cover p2p.

So the DMCA will either need to be amended or the lawsuits will eventually stop when the industry realizes they would have saved more money if the had just left p2p alone.

[Doramius]

There has been strong desire to have it amended, but I believe the last few have all been thrown down. Or maybe there's another reason why they weren't allowed to go forward, but I know it's been attempted quite a few times already.

[adam]

How do you mean bazooka? The DMCA allows a copyright holder to subpoena account information of users from the isp under certain circumstances. It doesn't matter whether the infringement took place over P2P or not. The Congressional Notes (where legislators explain what they meant when they drafted it) even mentions P2P specifically as being one of the reasons why the DMCA was enacted.

[bazooka]

How do you mean bazooka? The DMCA allows a copyright holder to subpoena account information of users from the isp under certain circumstances. It doesn't matter whether the infringement took place over P2P or not. The Congressional Notes (where legislators explain what they meant when they drafted it) even mentions P2P specifically as being one of the reasons why the DMCA was enacted.

The was one dissenting judge but the others made a decision that the DMCA does not cover p2p. Since the files do no reside on the isp computers, the isp's have no obligation to reveal the information.

This will probably be appealed, but from my understanding this is the second case that has stated that the DMCA does not cover p2p.

You might be able to shed more light on it.

[Doramius]

How do you mean bazooka? The DMCA allows a copyright holder to subpoena account information of users from the isp under certain circumstances. It doesn't matter whether the infringement took place over P2P or not. The Congressional Notes (where legislators explain what they meant when they drafted it) even mentions P2P specifically as being one of the reasons why the DMCA was enacted.

I thought they had to do it per individual and get the info. themselves rather than just arbitrarily get a subpoena and say to the ISPs, "give us a list of everyone who's violating copyright."

[bazooka]

The Congressional Notes (where legislators explain what they meant when they drafted it) even mentions P2P specifically as being one of the reasons why the DMCA was enacted.

The judges disagree

[adam]

The judges disagree

Without providing any context at all, that statement is just silly.

First of all, the DMCA clearly does apply to P2P generally. As I said, P2P is one of the specific "technological advancements" which propogated the need for the legislation.

But now that you describe the issue about the content not residing on the isp's actual network I know exactly what provision you are talking about and neither it, nor any case that I can find, comes anywhere close to making the DMCA inapplicable to P2P generally.

You are talking about the safe harbor provisions in 512(a). It holds that an isp cannot be held contributorily liable for copyright infringement if they meet five requirements.

(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.

So no an isp cannot be held liable for contributory infringement if their users infringe via P2P. A P2P itself can be held liable for contributory infringement however. This was decided in Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146.

But none of this has anything at all to do with an isp disclosing user information to a copyright holder who has reasonable belief that their copyright has been infringed. This provision falls under section 512(h) and is completely unrelated the safe harbor provisions. It states:

(1) Request. A copyright owner or a person authorized to act on the owner's behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.
(2) Contents of request. The request may be made by filing with the clerk--
(A) a copy of a notification described in subsection (c)(3)(A);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.

In this case the RIAA is not trying to hold the isp contributorily liable, they are just trying to subpoena user information under this provision. The Ct. ruled that they couldn't grant a subpoena here because that particular jurisdiction had yet to rule on whether downloading via p2p could even constitute copyright infringement. ISPs still have to disclose user information under this section if the copyright holder meets the requirements.

[jimmalenko]

There was a couple that were targeted that had no computer.

If the evidence-gatherer gets an IP address (using whatever research methods they use), then cross-checks this with the ISP's logs, how does someone without a computer (and therefore presumably without an IP address or internet access from any ISP, so therefore not listed with the ISP in any way, shape or form) get cross-referenced off the ISP's list and then prosecuted ?

[shelbyGT]

I think you need the answer button again, jim.

I questioned that, too, but just the other day I got a catalog from Victoria's Secret with MY name on it. Um... I really do like their stuff, but preferably not on me!

[adam]

If this is the case bazooka is talking about then I don't see the problem.

http://www.rednova.com/news/display/?id=32963

It seems it was their son-in-law who was doing the downloading, he just had the internet service under their name.

[jimmalenko]

If this is the case bazooka is talking about then I don't see the problem.

http://www.rednova.com/news/display/?id=32963

It seems it was their son-in-law who was doing the downloading, he just had the internet service under their name.

.. which still leaves them as responsible for the usage of the account, doesn't it ?

[adam]

I thought they had to do it per individual and get the info. themselves rather than just arbitrarily get a subpoena and say to the ISPs, "give us a list of everyone who's violating copyright."

They do. The DMCA has a specific provision that lets you subpoena an isp BEFORE filing suit if you reasonably believe that their customer is infringing on your copyright. You can always subpoena information during a suit after you get a court order, so you can always get the account information this way. But this DMCA provision makes it easier and cheaper to get this information by allowing it prior to suit, but you are still limited to making the subpoena for each individual customer.

What the RIAA was doing (and MPAA tried too) was filing a single suit against many John Does and then getting a single subpoena to obtain the information for each all at once. Then they'd sever each of the claims and pursue them. The Court said this was a due process violation and a violation of the joinder rules...and it is pretty clear that it is.

So now they can file an individual John Doe suit against each customer and get a subpoena for each individually, or they can go through the DMCA provision in any jurisdiction that will buy the argument (9th Circuit yes, 8th Circuit now says no.)

[adam]

which still leaves them as responsible for the usage of the account, doesn't it ?

Under their contract with the ISP probably, but not for copyright infringement. If it was their minor child yes. But under these facts it seems the son-in-law is guilty of copyright infringement and as long as these two old folks didn't have actual knowledge of what was going on, they can't be held directly liable. If you could prove they acted negligently and had constructive knowledge of the infringement (they should have known) then they could be held liable for contributory infringement.

[jimmalenko]

which still leaves them as responsible for the usage of the account, doesn't it ?

Under their contract with the ISP probably, but not for copyright infringement. If it was their minor child yes. But under these facts it seems the son-in-law is guilty of copyright infringement and as long as these two old folks didn't have actual knowledge of what was going on, they can't be held directly liable. If you could prove they acted negligently and had constructive knowledge of the infringement (they should have known) then they could be held liable for contributory infringement.

So how would one go about trying to prosecute the son ?

I'm no lawyer but that does not sound right to me. Law is law, and I know that sometimes the law as written does not exactly make sense or seem just, but that seems absurd to me. All ISPs I have been with so far (4 to date) list the account holder as being solely responsible (and liable) for usage of accounts held with them. I don't understand why account holders can plead ignorance to the situation if they're not the actual people infringing, when the usage of the account is clearly their responsibility. As far as I'm concerned, they're most likely in violation of the ISP's terms of service anyway, so they should have to take the rap for any illegal activity.

Shooting myself in the foot, however, I guess you could relate it to speed camera fines - here in Australia, at least. Should your car be caught speeding by a speed camera, the vehicle's registered owner is issued with an infringement. If they were not driving the car at the time, they have the opportunity to nominate another driver (with a stat-dec arrangement), who then has to wear the fine and penalty points.

I guess I'm failing to understand why copyright law does not re-inforce terms of service imposed by the ISPs.

[adam]

Your agreement with the ISP is a contract. They can bind you personally to their terms, even for the actions 3rd parties accessing your account, but this has nothing to do with the enforcement of copyrights. The act of downloading/uploading is the infringement, so regardless of who is paying for the access, if these folks never did the actual distribution then they cannot be held liable for distribution. At the most the use of the account only contributes to the infringement, so they could be held liable for that.

Maybe someone accesses my unsecure line and does something illegal. It would be difficult to prove, but I have done nothing wrong and so I should not be punished. It doesn't matter that my name is on the account.

Maybe one of my friends uses my phone to make a bomb threat. Its my account, but unless I had knowledge of what he is doing I shouldn't be held responsible.

[jimmalenko]

Thanks Adam

As I said, I don't think it's fair/just, but I'll just add that to the ever-growing list

I'm afraid though, that you didn't answer my question:

So how would one go about trying to prosecute the son ?