Both the plaintiffs' and defendant's motions for summary judgment have been denied in Motown v. DePietro, in the Eastern District of Pennsylvania. Ms. DePietro is appearing pro se.
The Court held:
There are... genuine issues of material fact concerning whether or not Defendant has been misidentified as the infringing user.... Defendant has... supplied the Court with a report from her purported expert. In this report, Defendant's expert offered several theories to explain that, even though Plaintiffs identified a user at Defendant's IP address as the infringer on November 18, 2003, it is possible that Defendant was not the infringing user. At the summary-judgment stage, the Court must accept this report in the light most favorable to Defendant. Doing so, in conjunction with Defendant's repeated denials that she downloaded or distributed the sound recordings at issue in this case, creates a genuine issue of material fact. If Defendant can offer proof at trial that she may not have been the user identified by Plaintiffs, a reasonable jury could find that she is not liable for infringement.The Court also, held, however, that Ms. DePietro's discarding of her computer, approximately five (5) months after receiving the "Doe letter" informing her that she had been identified as an infringer and instructing her to preserve all related evidence (which was 4 months after the filing of the complaint, and 2 months after being served with the complaint)... and her returning the cable modem to her cable provider... created problems. Her expert had conceded that if these had not been discarded, the plaintiffs could have been able to use them to tell whether Kazaa had ever been installed on the computer, whether the MAC address of the computer and modem matched the MAC address in the cable provider's logs, whether a virus or worm could have been responsible for downloading, and whether defendant had enabled the remote desktop feature on her computer which could allow a third party access to the computer remotely. The Court then invited the RIAA to make a motion for sanctions for spoliation.
The Court also stated, in a footnote, its belief that "making available" is, as the RIAA argues, in and of itself a copyright infringement. (This is the issue that is before the Court in Elektra v. Barker).
February 16, 2007, Order and Decision*
Docket sheet*
* Document published online at Internet Law & Regulation
Commentary & discussion:
Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
6 comments:
Can you clarify some things for me Ray?
1. Since we have clarified and established that IP addresses do not identify a person, but a computer at the Jacobson deposition, by what standing does the judge in this case can say that an IP address identify a person?
2. Can footnotes be cited as caselaw for another case(referring to Electra v. Baker)?
1. The judge didn't say that, she just said that she thought that that was enough evidence to withstand a defendant's summary judgment motion. ( I disagree with that, by the way. )
2. Footnotes can be cited just like anything else. However, rulings against a pro se litigant are not considered very persuasive, since the absence of an attorney representing the defendant strongly suggests that the judge never really got to hear both sides of the issue. Judge Karas, on the other hand, got an earful in Elektra v. Barker. He not only heard from lawyers on both sides, but from lawyers representing various amicus curiae.
A question for today. If a computer at a household identified by an IP address was found to have, or have had, the KaZaA program loaded on it, but no infringing music files, or evidence that such files had been erased, is that evidence of guilt -- or innocence?
In support ofDefendant’s position that someone other than she downloaded the music
files at issue here, she submitted a report prepared by her purported expert, Joseph C.Magee, Jr., in
December 2005. The first drafts of this report were contested by Plaintiffs for failure to comply with
Federal Rule of Civil Procedure 26(b)(2). Defendant has resubmitted a draft that she contends complies with the Rule, though Defendants(sic!) continue to question the validity of the report and the
conclusions offered within it.
OK, thanks to his first time deposition by Ray, we already knew about the qualifications of plaintiffs expert in these cases and the validity of the report and the conclusions offered within it, if he works in all cases the same way like in Lindor. According to a footnote, he furnished a report in this case too but without an HDD image.
If it is possible Ray, please try to get defendants expert report and the objections from plaintiffs about it.
Might be usefull for other cases to see if the Plaintiffs ask for the same high standards that their expert has from defendants experts too and that's why they objected, or if they are willing to forgive defendants if their experts aren't such high paid highly competent experts that those big companies can afford to pay.
P.S. yes Igor, me thinks its a typo too, after I read your comment, used a "SIC" in the quote therefore.
"If a computer at a household identified by an IP address was found to have, or have had, the KaZaA program loaded on it, but no infringing music files, or evidence that such files had been erased, is that evidence of guilt -- or innocence?"
It is more evidence of guilt. If you claimed in your defence that KaZaA was never in your home, that defence would, on the balance of probabilities, be denied. You could still have the following defences: (from Arista v Finkelstein)
- You were not the person who installed KaZaA. (Hackers, visitors, flatmates, etc). If the person who really did install KaZaA is identified, they could be sued by the RIAA.
- Making available does not constitute copyright infringement. (Elektra v Barker)
- $750 per song is unconstitutional. (This could get damages reduced but not eliminated.)
- More complicated defences relating to the RIAA's past activity (see the "fifth affirmative defence" and onwards in Arista v Finkelstein)
with the riaa everything is evidence of guilt...
1. files on your computer... you did it...
2. files not on your computer but there have been deletions.... you must have deleted the files....
3. nothing at all on your computer they can use.... you must have switched the hard drive...
no matter what.... guilt....
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