In Elektra v. Santangelo, the RIAA has submitted reply papers arguing that the dismissal should be "without prejudice". Included in the reply papers was a declaration by Tom Mizzone of MediaSentry in which he claims that over a period of ten (10) months he repeatedly sent instant messages to the alleged iMesh user at the exact same IP address:
Reply Declaration of Tom Mizzone of MediaSentry*
Reply Declaration of Richard Gabriel*
Reply Memorandum of Law*
* Document published online at Internet Law & Regulation
Commentary & discussion:
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6 comments:
Huh?
I thought it was already well established that an IP address is NOT a specific person, nor is an IP address the same as a street address in real life. And that a username in KaZaA is NOT a unique identifier for one specific person.
Mr. Gabriel's move to introduce instant messages of Mr. Mizzone look to me like a classical Chewbacca defense.
We all know that there are child molesters out there that send instant messages to the unsuspecting children. That's why we block those scum and their messages and thats what the ISP's are doing for those parents that are not so computerliterate.
Mr. Mizzone already admitted in Canada that his messages have no value what so ever;
"Q. If I take you to paragraph 13, you say there:
"Since August 13, 2003, MediaSentry, on behalf of CRIA,
has sent more than 694,000 'instant messages.'"
What's the significance of August the 13th, 2003; what's that about?
A. Just when that program started.
Q. Okay. Did you -- you didn't send out any of these messages, did you?
A. Me personally?
Q. Yes.
A. No.
[...]
Q. Do you know what software was used to send these messages?
A. Yes.
Q. What was it?
A. The Kazaa application.
Q. Do you know what version of Kazaa?
A. Not off the top of my head, no.
Q. Do you know whether it was version 2.5.1 or later?
A. Not off the top of my head.
Q. Do you know that in version 2.5.1 of Kazaa and thereafter
that the instant-messaging function was disabled by default?
A. I know that at some version of Kazaa they disabled the receipt
of incoming messages by default.
Q. What was the name of the sender? Do you know the name of the sender that was used on these messages?
A. No.
[...]"
Instant messages have IMO nothing to do with a question about dismissing with or without prejudice. Mr. Gabriel and the record label plaintiffs must be very desperate that Mr. Mizzone's messaging habbits ammount to a "Wookiee on Endor".
Well instant messages that do not go through are like calls to the same phone number that just ring, or answer w/ a computer voice and has no info but the number you called. There is not a whole lot of guarantee that anyone actually got the message especially after they didn’t respond to the first 20 or so of them.
On a second note it is not unlikely that the user DID actually have the same IP during that whole time in kazaa's system. Although DHCP can give you a new address every 5 min due to various factors (uncommon) it can also let you keep the same one indefinitely if you renew your lease in a timely fashion. Of course all of the same arguments as to IP -> machine -> person apply none the less but it is not too far fetched to see a user having the same IP for weeks, months or even (rarely) years.
I would say it's likely that the IP was assigned to the same house hold over that period of time if the log is accurate (since it varies among the same 3 usernames...) though never at the same exact time...sometimes within minutes though...which makes me suspect a router was involved with this case.
Why are there question marks in the log for some usernames and why are there two Null Id's for the message id (and what does message ID mean anyway...do they send different types of messages to different people?)
good questions, Igor!
Since Dr. J. is unable to answer these kind of questions about Mr. Mizzone's "investigations", Mr. M. is needed as the expert witness in cases where RIAA base their allegations on MediaSentry material to explain what the material means.
I wonder where these cases would be if everyone used the same KaZaA user name. So much is made about same names, names that appear to match certain people's surnames, and different names. Or if people started changing their name each time the logged in.
iMesh??? I thought Santangelo was sued for Kazaa???
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