RIAA countersued

[GullyFoyle]

You want me to prove that something doesn't exist? Let me explain how the legal system works. If you want to prove something YOU put forth evidence and get a ruling. I'm not saying the RIAA hasn't broken laws in bringing their suits, I have no frickin' idea, I'm saying that no one has shown any evidence of this yet. I'm not defending the RIAA, I'm defending common sense. If there's no evidence one way or the other than don't just make shit up, wait until the evidence does come out.

Look if some wardriver is hacking into a 90 year old, blind, deaf, Mac user's computer and downloading gansta rap on the RIAA's end its still just an ip number which could belong to anybody. They can't evaluate the likelihood of mistaken identity until they at least know WHO they are suing and so far I am not aware of any case in which the person presented a valid case of mistaken identity and not had the case dropped.

Basically you can not prove your statement because you can not prove every RIAA suit is legal and valid.
So instead you choose to obfuscate.
Even with two known cases of RIAA identity problems, you still deny there are problems.
And more importantly the problems are directly related to class and socioeconomic status.
The people least likely to defend themselves because they are poor.
Just admit that the RIAA is seriously flawed and use the blunt instrument of corporate cash to have their way.

[adam]

Basically you can not prove your statement because you can not prove every RIAA suit is legal and valid.

I did not say every suit was legal, I said no suit has yet to be shown to be illegal. I don't know if you really understand what you are even saying, but that places the ball in your court, not mine. So spare me your argument that I can't prove my statement since I'm not omnipotent. As for validity you only need a good faith belief to file a lawsuit. Those cases later found to be invalid due to mistaken identity were dropped, but at the time of suit the RIAA has more than a reasonable belief they have an absolute belief because whether the account holder knows it or not their account was used to commit an infringement. There is nothing illegal or abusive about this, its how our courts are supposed to work.

The RIAA has had some of their procedural attempts to use the DMCA for discovery thwarted, and in the past they have been charged with Antitrust violations and price fixing. Oh and there have been alot more than 2 mistaken identity cases. Its been more like dozens. But as of yet no one has shown any illegality in their use of the courts to sue file sharers. You said it yourself, none of these cases have even gone to trial yet, though that is going to change real soon in two separate cases.

So rather than conclude the RIAA has committed crimes and civil offenses simply because I don't like them, I'm choosing to see whether this woman or any others can prove their case. And I'm just throwing out my personal opinion that she can't after reading her claims. I wish people could just take off their F**CK_RIAA glasses and have a reasonable discussion sometime. It never happens and it seems that the people who bitch the most know the least about the legal process.

[ROF]

I wish people could just take off their F**CK_RIAA glasses and have a reasonable discussion sometime. It never happens and it seems that the people who bitch the most know the least about the legal process.

That right there says more than anything else in this entire topic. No legal degrees required to understand that.

[Delerious]

http://recordingindustryvspeople.blogspot.com/2005/10/oregon-riaa-victim-fights-back-sues.html


Here's another write-up. After the article there's a link to the complaint (before the comments).

J

[GullyFoyle]

I wish people could just take off their F**CK_RIAA glasses and have a reasonable discussion sometime. It never happens and it seems that the people who bitch the most know the least about the legal process.

We all know just how fair the legal process is, right.
It would be different if we had a legal process that really did work. Instead we wind up with the shit sandwich version. The more bread you have the less shit you eat.
On the other hand at least no one is saying that the RIAA is doing gods will.

[RottenFoxBreath]

considering that the sums to pay are more than some people would pay for a lawyer its no surprise that they choose to pay,but im glad that people are starting to not take it in the ass.
ips mean nothing,and really thats all they have,no files she downloaded at all,its all a smokescreen,make examples of some and people will back down and realise what they do is wrong.
nope,there wrong,they just promoted file sharing more than the most expensive ad campaigns could.
and adam,you couldnt make a thread like this without politics,because in america at least ,corporations own the goverment,in there little natty suit pockets.

[adam]

RottenFoxBreath: They have the file list showing the files that that user had in their shared directory. They have a log showing other users downloading those files. They download a sample of the file to confirm it is indeed the copyrighted content they believe it to be. They have a video recording of all of this happening inside the software in real time. All of this activity can be absolutely linked to an ip address which the isp can absolutely trace to its account user. These cases are as slam dunk as you get in law. You've got 99% of the evidence you need the second it happened. THAT'S why everybody always settles.

The infringement is self evident. The've got it on camera happening and it is tagged with a unique number which can be traced to an individual responsible for that account (its a unique number because only one person uses it at any given time and the isp logs it at all times). The only room for error is when some ELSE has intervened, usually through an illegal act, and used that account without authorization. Its like someone stealing your car and running over someone. Are you going to be suprised when they trace the license number to you and consider you a suspect before hearing your side of the story?

RottenFoxBreath we can surely discuss this matter without bringing up Bush or 9-11.

[junkmalle]

They have the file list showing the files that that user had in their shared directory. They have a log showing other users downloading those files. They download a sample of the file to confirm it is indeed the copyrighted content they believe it to be. They have a video recording of all of this happening inside the software in real time. All of this activity can be absolutely linked to an ip address which the isp can absolutely trace to its account user. These cases are as slam dunk as you get in law. You've got 99% of the evidence you need the second it happened. THAT'S why everybody always settles.

I remember reading recently that one of the cases was tossed out of court -- because the RIAA had nothing of the sort. All they had was a file name list. They hadn't verified that the person actually had the files in question (say, by downloading them), that the files were actually what they claimed (named) to be, or that anyone had actually downloaded the files (to show actual damages).

Sorry, I don't have a link. It may not have been in the USA.

[edit]

Ah, I think this is the story I was thinking of:

http://www.theregister.co.uk/2005/07/12/dutch_p2p_case/

It was a Dutch case.

[satviewer2000]

There is no mention of whether there is anyone else living at her household. Is it possible that she may have a teenage son who lives at home, or visits home, and uses her computer to download the music? I recall that satellite companies had used a similar strategy against pirates. They had sued everyone who was on certain mailing lists that they had seized from gray market decoder hardware makers. In those cases, any household which had a teenager present would have had the lawsuit dropped.

Of course, this also brings up another question. Is there not, under current American law, a presumption of innocence? Is the strategy of the RIAA not based upon "Guilty until proven innocent"?

[junkmalle]

Is there not, under current American law, a presumption of innocence?

Yes, but you will still have to hire a lawyer to represent you (well, you could represent yourself but few people are prepared to do so) and that will cost you far more than the ~$3000 extortion fee, oops, I mean settlement, the RIAA will offer you. So for most people it doesn't matter whether they're guilty or not, it's cheaper to settle.

[gadgetguy]

The presumption of innocence is in the absence of evidence. From Adam's description there is plenty of evidence that allows the RIAA to assume the party is guilty. But that doesn't mean the court assumes guilt, only those pressing the charges do. The whole point of the settlement is to avoid going to the courts so the presumption of innocence doesn't really apply.

[AlecWest]

I wonder what kind of Internet setup that lady had. This is why I'm curious.

A coworker of mine got himself a new computer and was planning on connecting it to his old computer via a wireless router and wireless NIC. But, before he could sign up for broadband, he noticed that he could "already" access the net. Apparently, someone else in his apartment building already has an Internet connection and his wireless NIC card could connect to it. He still hasn't figured out who it is ... but has been accessing the net for some time now using wireless NIC cards on both computers (no router needed). He had to set himself up with a web-based email service. But other than that, he's getting free Internet service via an unknown wireless benefactor (grin).

Point is, the person he's "piggybacking" off of has an IP number. And he could download illegal music day and night and the finger of guilt would NEVER point to him ... but to the person who was assigned that IP number.

Anyhoo, if that lady is a broadband user and is using a wireless router in her home, it could be that someone closeby could be tapping into her Internet connection without her knowing it.

Question for Adam -- In today's world where wireless routers come into play, could this be successfully used as a defense? It would certainly raise a reasonable doubt of guilt if piggybacking was a potential factor.

[Steelfatboy]

I also have a question for Adam, one that is relative to the RIAA lawsuits. If I purchased a cd, then downloaded one of the songs on it off of p2p, have I committed a crime? I thought the lawsuits were going after people for sharing the music (allowing others to download from them) rather than the downloading. It is not against the law for me to make an mp3 from a cd I purchased. What is the difference between that and downloading an already created mp3? And if it is legal for me to download an mp3 of a song I have on cd, how can the RIAA sue me? Thanks in advance for your reply and please forgive my ignorance of the law.

[CaptainVideo]

If I purchased a cd, then downloaded one of the songs on it off of p2p, have I committed a crime?

I can't speak for Adam, but I believe (my opinion based on my knowledge) you have. You are downloading a copy from a different compact disc that you do not own. If you wanted a copy and you had the disc you would have to make it from your copy. And if you say it saves you time to just download it then I have to ask what type of computer you own? Ripping from a CD is as fast or slightly slower than downloading.

The person supplying it is definitely guilty for distribution of copyrighted works without permission regardless if the person getting it already has a CD of it.

[Steelfatboy]

And if you say it saves you time to just download it then I have to ask what type of computer you own? Ripping from a CD is as fast or slightly slower than downloading.

Actually, I didn't say it saved me time, just wondered about the legality of it. For example, I have some cd's in storage and downloading the song would be faster than me digging it out and ripping it.

You are downloading a copy from a different compact disc that you do not own. If you wanted a copy and you had the disc you would have to make it from your copy.

Just wondering if that is true. If the song is the same, meaning same length, not remastered or different from the one I have on the cd, then why would it matter?

[lordsmurf]

I think the problem here is "legality" has taken the place of "justice" and doing what is right.

While it's inevitable that owners of works want to protect their investments, at some point, they fail to want justice, and instead prefer the greed granted by "legally protected" forms of racketeering (or rather something obfuscated enough to barely bypass that strict definition).

Art and protection of profit by said art has fallen to the wayside in past decades, and now people think anything they create should make them rich by any means necessary. And that's plain wrong.

As far as I'm concerned, the best form of anti-piracy is reasonable competition (providing what people want, in the format they want, for a reasonable price). Not suing everybody in a no-holds-barred, do-not-care-about-the-facts sort of approach.

[adam]

@AlecWest: Yes an unsecure network is always a defense and that is basically what the RIAA has been chalking up these mistaken identity cases to. When it becomes clear that the people were not doing this down/uploading than the most logical explanation is that someone else was accessing their network and like you said, all fingers still point to the account holder. But copyright infringement is a willful act so the account holders can't be held liable...there is still an argument for vicarious or contributory copyright infringement but it will take many years before our society is considered computer literate enough so as to hold someone liable for failing to secure their network.

@Steelfatboy: The issue of downloading music to essentially backup a hard copy you already have, was ruled on in A&M v. Napster and basically no, its not allowed. You can backup music yourself using a "digital audio recording device" as defined under the Audio Home Recording Act (dat recorders, some pc software, etc...) but you cannot download it to obtain your copy. Realize thought that just because something is an infringement that does not make it a crime. Copyright infringement only becomes criminal copyright infringement if you do it for profit or if you do it in large quantities ($1000 worth in any 180 day period.)

As for the RIAA, they have stated that, while downloading copyrighted works is still an infringement, they are not actively suing downloaders only distributers.

[Cornucopia]

You know, it would be hilarious to find out that this woman didn't have broadband--that because of her slow 56k modem it would be physically impossible to DL as many songs as they're claiming!

Scott

[ROF]

As for the RIAA, they have stated that, while downloading copyrighted works is still an infringement, they are not actively suing downloaders only distributers.

That right there is their achilles heel. The downloaders are the problem, because the most infringing distributors are smart enough to mask themselves on the net to become, for example, a 41-year old disabled single mother living in Oregon.

[adam]

Its not cost effective to sue downloaders. If they download one file that's one incident of infringement. If they upload the file there may be 20 people downloading it, that's 20 incidents of infringement each punishable by up to $5,000.

Plus there's the argument that the person doesn't know the file they are downloading is infringing until after they get it. But if you are uploading it you are presumed to know that the content is copyrighted.

And really I don't think these suits are aimed at the smart infringers, the one's who bother to mask what they are doing. These suits are aimed at the common person who doesn't necessarily see anything wrong with sharing music or movies on the interent. Its basically propoganda to get the word out that copyright infringement is wrong and can get you into legal trouble. All of the small time incidental infringers add up to a much larger problem then the really hardcore blatant ones...at least in the US.

[abc-123]

Hey, I have a question. Don't you guys (I live in Canada) have a law down there that states you can refuse to answer a charge on the basis that the answer might incriminate you?

Scenario: What if I was on an open wireless router and the RIAA charged me with downloading an illegal copy of "The Sound of Music" movie at 4:30 am one Saturday night. In order to prove I didn't do it I'd assume I'd have to supply them with my computer hardrive contents and let them search my home for cd/dvd's, right?

Well, what if I want to refuse doing that because at 4:30 on that particular Saturday I was busy chatting with my alqueida network planning the next bombing of Kerplakistanian subway stations? Or maybe I was on a conference video call with my midget clown child sheep porn syndicate creating a new "tape" which I'm sure the RIAA would not wish to claim copywrite ownership to? How would I be able to go about defending myself against the copywrite infringement without incriminating myself? Isn't that a form of invasion of privacy? (I could be totally wrong, I know.) How is it that the burden of proof has shifted to the accused to disprove his guilt rather than the accuser to provide sufficient evidence of such guilt? (Funny, I always thought you can't "prove" a negative.)

But the bigger issue is, if such people are mistakenly found by the RIAA, does it not make the discovery of their harsher crimes inadmissable in court if they didn't use p2p? I mean, the authorities would never have known what they were up to on their computers if the RIAA didn't get involved, right?

IMHO, The RIAA is making the situation worse technologically all for the sake of a few dollars as the masses will find newer ways to circumvent the existing tracking methods. I bet 99% of the people in this thread are trying to think up new tech ways to protect themselves against such bullshit lawsuits but don't realize that those same methods will also be used tomorrow to protect the child porn posessers and terrorists. Guys, be carefull what you wish for.

[johnny quest]

abc: You and some others here are confusing criminal vs. civil proceedings. When you are sued, it is a civil proceeding. Your 5th Amend. right to remain silent is in reference to criminal charges, and even when you are charged with a crime, you still must answer by entering a plea of "not guilty". In the civil context, a plaintiff must be able to make a sufficient pleading of facts that COULD justify a cogent right of action. While you could still plead the 5th in civil litigation, the Courts will interpret this as an admission to whatever fact or question your refuse to answer. Generally, a civil defendant would have many available affirmative defenses such as "failure to state a claim", jurisdiction, "statute of limitations", etc. In almost all cases, the burden of proof does not shift unless and until a plaintiff makes out a prima facie case against the defendant that there are factual and material issues in controversy as to the claim.

As to your various scenarios about supplying your hard drive, I don't think that would be an issue as you would first receive a discovery request or subpoena for it. You could object by motion, protective order, or simply erase the offending material prior to submitting it.

[abc-123]

And what exactly constitutes a prima facie case when dealing with the RIAA? An ip number sitting on a static server? They're suing "John Doe" for frig sakes.

I'm not confusing civil and criminal law, just drawing parallels from it. In criminal cases when they have such flimsy evidence and cause an innocent party needless grief, that party can sue for wrongful arrest/prosecution, even if it hasn't cost them a dime and only their reputation has been sullied. That makes the prosecuters think twice about going off after someone half cocked.

But in this instance, such a modifier is not present and I think that's what enrages people. When it's found that an innocent party has been wrongfully harrassed and pressured to settle a suit, the RIAA just shrugs their shoulders and tells people to just suck it up. Then they go on with the same zeal as before prosecuting further "John Doe's".

There should be a modifier even in civil cases such as these, when it costs the common man money he can't afford for a lawyer to defend himself. What if the RIAA was charged with covering their lawyer fees and small sum for sullying their reputation? Would that not balance things out?

P.S. If you persued a course of action to prevent them from obtaining the contents of your hardrive - in any way - would that not also not seem as an admission of guilt in the eyes of the court? Or destruction of evidence?
If not, why does anyone comply with such an order in a civil case?

[adam]

abc-123 the John Doe suits are a mere formality to obtain the actual names of the party. Once they file this suit they can then subpoena the account holder's name from the isp, then they refile their suit against this actual party. Its all because of procedural requirements and its really more like they are suing the isp than the individual...sort of. By the end of it they are suing the person responsible for the account that was used to actually infringe the copyright. If a 3rd party ILLEGALLY interfered then the accused party has to present evidence of that. I don't see why this would be shocking. Its not like the RIAA is actually mistaking anyone's identity, its that the person they are suing was framed. ALL of the evidence points directly to this person. Naturally this person has some explaining to do even if they are innocent.

There are certain requirements to a copyright infringement action and the main one is that you show the party willfully infringed. This means they did the act consciously, not that they necessarily knew the file was copyrighted or that they were doing anything wrong. The RIAA obtains logs showing the party hosting files for download, usually over an extended period of time. They show others actually downloading those files. They download a portion of the file to confirm it is the copyrighted file they believe it to be. All of this observed activity is done under an ip which can be absolutely traced to its account holder. I can tell you from seeing many copyright suits that this is about as slam dunk a collection of evidence you can have, I mean they are sitting there watching and recording it as it happens. This is pretty much absolute evidence that SOMEONE infringed the copyright using that account. Since the person sued is responsible for that account they must present evidence that the account was used by another without their permission. This doesn't mean the burden of proof has shifted to them. The burden remains on the copyright holder to show, among other things, willful infringement. But now there is an issue of the burden of pursuasion. Taking the defendant's arguments into account, if the judge or jury, as the case may be, does not believe that the plaintiff proved willful infringement by a preponderance of the evidence than that party cannot be held liable.

I don't see how anyone can even argue that such suits are frivolous, the only time the party isn't caught red handed is when someone else ILLEGALLY interfered. Obviously the RIAA has a reasonable belief to file suit when they know for a fact that someone infringed their copyright and that this person used the account in question. But to answer your question, sanctions for frivolous suits, pleadings, or motions are always available in either a criminal or civil proceeding. The offending party usually must pay the other party's attorney's fees and costs of court and they can additionally be forced to pay fines and in extreme cases the attorney can be disbarred.

You see the system has many inherant methods to weed out frivolous suits and to protect individuals' privacy and due process rights. That's something that I think the average person really doesn't realize. The media does something like report a million dollar suit against McDonalds for making kids fat and everyone complains about lawyers and the justice system. What the media doesn't report is that the families sued pro se (they did not have a lawyer they just filled out a piece of paper) and the suit was thrown out the second it was presented to the judge.

[abc-123]

Ok, good. I'm glad to know that the system has all the proper checks and balances in place. So what have we learned boys and girls? If you're going to do the crime, do the time and quit your whining.

You want to piss and moan that the entertainment industries overcharge for their products? Don't pirate, boycott.

But I think most people don't agree with what is "willfull infringement" or why certain things have a copywrite in the first place. For instance, why is it if I make a dvd from my own tv caps it's ok, but if I download those exact same caps and make a dvd I'd be breaking copywrite? (I know the answer, it's just an example.) And how is a lawyer supposed to know what my knowledge of the law is or whether it was truly willfull?

Personally, I don't see a point in getting upset at the procedure of enforceing stupid laws, people should be getting upset and trying to overturn the labelling of what gets copywrited in the first place and then we wouldn't have to deal with this type of outrage.

Just my 2 cents.

[adam]

And how is a lawyer supposed to know what my knowledge of the law is or whether it was truly willfull?

Like I said, willful infringement does not require that you know the content is copyrighted or that you know what you are doing is in violation of that copyright. All willful means is that you did it consciously. Your knowledge of the law is irrellevant. And the jury would be given an exact defintion of "willful" in the jury charge and the plaintiff would have to prove it was willful according to that definition.

[abc-123]

I'm really really interested in the definition of "willful" that the jury would be given.

Ok, how can you willfully yet unknowingly break a law? Scenario: you park your car on private property unknowingly (because there are no signs up) and get a ticket. You didn't mean to break the law, but your action of parking there still broke it nonetheless. So now what's to stop a greedy city mayor from taking all the signs down in a metropolis just to raise his coffers by the fines people would have to pay left and right from unknowingly parking everywhere?

Where is the modifying law that prevents exploitation of what's willfull yet unintentional?

I guess I'm argueing ethics more than I'm argueing law here.

[nwo]

In this post-911 world, you have to expect that certain personal rights will be surrendered, willingly or not, to keep the country safe.

Well do it in your own country, and NOT in my country.

Coz American Ani't the World.

[celtic_druid]

If you get a parking ticket because of say a sign being bent so you couldn't see it. If you go back and can get a photo of it then you won't have to pay the fine. Your example and the above are totally different from being ignorant of a law though.

A better example might be that you are allowed to grow 2 Marijuana plants legally. You think it is 4, so you get caught with 4 plants. Now they aren't going to let you off even if you really did not know that the limit was only 2. On the other hand if your bird seed accidentally sprouts 12 plants then you would most likely get off.

[dcsos]

Did she have an unsecured wireless network.?
SanFrancisco is notorioius for those
Gangster Rap fans roam the outskirks of the metropolis looking for access points in their pimpmobiles

http://www.netstumbler.org/archive/index.php/t-15449.html