Wednesday, May 23, 2007

The Battle of Athens, Ohio, Begins; Ohio Law Firm Takes Up Cause of Students Against the RIAA

There have been numerous press reports that Ohio University, in Athens, Ohio, has been targeted by the RIAA.

Now the battle is joined.

The RIAA has filed its usual ex parte John Doe lawsuits.

But this time it has encountered an adversary.

Joseph A. Hazelbaker and Jonathan Sowash of Sowash, Carson & Ferrier, an Athens, Ohio, law firm, have taken up the cause of Ohio University students, and have served notice on the University that they expect the University to protect its students' rights, and will hold the University accountable if it does not.

Complaint in Arista v. Does 1-15*
Complaint in Capitol v. Does 1-10*
May 23, 2007, Letter of Joseph Hazelbaker to Ohio University*

* Document published online at Internet Law & Regulation

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12 comments:

pepper said...

Well, doesn't this just give the university a little old dilemma? (not to mention a great huge headache) Nice new twist, and this is going to be very interesting to watch.

Christopher said...

I am confused. If the John Doe lawsuits have been found to violate the Rules of Civil Procedure, then why are judges allowing such conduct?

Caladil said...

Ray, does there ever come a point when a judge will actually hold the RIAA to the Fonovisa v Does ruling? Or is the RIAA simply above little things like orders from Federal judges?

Scott said...

So is Mr. Hazelbaker asserting that a school which prematurely releases student information is violating federal law?

If so, would a student who paid a settlement to the RIAA after a school released information about him or her have a reasonable chance of winning a lawsuit against the school?

Schwammo said...

OU already has a horrible reputation for misusing / losing student data (a la the scandal last year), they should already be very hesitant to release such information.

Ray Beckerman said...

Yes it's a nice new twist, and one I've been waiting for.

AMD FanBoi said...

RIAA: Each Defendant is alleged to have robbed a branch of the same parent bank, in the same city, using handwritten notes in the same color of ink, while brandishing the same model of gun, and escaping in the same make and color of stolen car. Therefore we want all the secret banking records, credit card records, and cancelled checks, of everyone believed to be in town at that time to sift through in an attempt to see who may have more money now than they should. And to make our life, and your life, but mostly our life, easier, we want you to give us this blanket authority in a single, joined, ex-parte, John Doe lawsuit.

The Court: Did they all rob the same bank at the same time, acting in conspiracy and/or collusion with each other to accomplish this?

RIAA: Uh, no, Your Honor.

The Court: Then don't sue them all together.

RIAA: We also maintain that they continue to rob banks to this moment. Doesn't that interest you?

The Court: Can you prove they're all robbing banks even as we speak?

RIAA: Well, no, Your Honor. But we can't prove they're not, either.

The Court: You've got to be kidding!

- - -

Just a thought here. At the ex-parte point in the proceedings, could it be argued that any data developed, revealed, and/or disclosed as a necessary part of that case could ONLY be used in that case itself. And could ONLY be revealed about potential Defendants residing or doing business within that court's jurisdiction?

Otherwise the courts become nothing more than a mechanism to overturn every privacy law in existence, on the most flimsy evidence available, for any purpose afterwards that anyone wishes to pursue in any other case. Once the cat's out of the bag, well you know what I mean.

People have been sued before, just to get their identities revealed, with no possibility or intent of actually being able to win in court. Other forms of retribution, such as firings, happen instead, on grounds that would have never survived a court case.

Ray Beckerman said...

AMD_fanboi, I have no idea what your comment is about....

"At the ex-parte point in the proceedings, could it be argued that......"

At an ex parte part of the case nothing can be argued because nobody is there to argue.

AMD FanBoi said...

Apologies for not being clear.

What I'm asking is, when the initial case is filed against Does 1 thru xx, is it possible to limit any private data revealed to only that case itself? At least some people have been notified in the past by their ISPs when the subpoenas arrive based on these ex-parte proceedings, and have mounted other types of challenges (e.g. illegal joinder) at that point, so it seems that the court will hear some arguments after the subpoenas have been issued, and before they are fulfilled.

As it is now, the RIAA uses that initial case simply for the purpose of piercing the veil of privacy, and then dismisses the case and takes that information for use by both their Settlement Center, and in new cases. This would seem to be an abuse of the court process, and makes personal privacy laws worthless, since you don't have to actually use the personal information in the case you filed to get it.

Ray Beckerman said...

1. We don't know if judges everywhere are allowing it. We know that some judges have expressly forbidden it.

2. When a case is ex parte it means there's no one there to explain to the judge why the RIAA is violating the law.

3. Yes I expect the judges will hold the RIAA to the Fonovisa v. Does ruling. But SOMEONE HAS TO GO TO COURT AND FIGHT IT. IF PEOPLE WIMP OUT AND JUST SETTLE OR HIDE THEN IT WILL CONTINUE TO GO ON. OUR ADVERSARY SYSTEM REQUIRES ADVERSARIES.

4. I think students and parents should start thinking along the lines of holding the universities to the standard spoken of by Mr. Hazelbaker.

5. AMD I don't understand your second comment either. An Ex Parte case means THERE'S NOBODY THERE FIGHTING IT. OF COURSE IF THERE WERE SOMEBODY THERE FIGHTING THESE VERMIN IT WOULD BE POSSIBLE TO LIMIT THE DATA TO ONE PERSON. IN FACT IT WOULD BE POSSIBLE TO GET THE CASE DISMISSED AND LIMIT THE DATA TO NO PERSONS. BUT IT REQUIRES SOMEBODY TO GO IN AND FIGHT.

6. It is an abuse of the court process to bring these sham cases. That's why people have to START FIGHTING BACK.

CodeWarrior said...

Look..lawsuits in general, are giant money holes. The RIAA gets ITS money from member recording companies. The Recording companies are thus the "head" and the body/tail is the RIAA. Deprive the recording companies of sales, take away their money, and watch the slimy bastards at the RIAA wither and die.

http://boycott-riaa.com
~Code

mhoyes62 said...

You know, look ing at the John Doe complaints, it makes me question. How can they state that it is their belief that a particular person at an IP address is infringing. First, they haven't shown any evidence that a person actually has the files, but just a list that is purported to be a list of files on the machine (which may just be files that are being atempted and not that they are providing). Nor do I see the time zone that the time of the alleged infringment is made. Nor, do I see any attempt to correlate the time difference the ISP has on its logs to the time difference with the machine doing the search. Also, how many different computers are doing the search, and what time reference do they each use.

Another thought came to mind. It isn't really an valid argument, but it may mitigate damages. If the songs are actually on a computer, there is no proof of:

1) intent to actually make them sharable
2) how many times they have been downloaded
3) what portions have been downloaded. P2P serves from multiple computers so if it is a popular file, it will be shared from many different machines.
4) is the file even a copy of what it purports to be. A lot of the web seems to name files as something people may want, when in reality they are viruses or porn.

Number 3 also raises an interesting thought. If only a small portion of a file is downloaded from each server, then each individual server is only contributing only a few seconds of music, which falls in fair use :-P. Not valid I don't think, but certainly worth a think.

meh