The RIAA has filed its opposition papers to the motion to quash made by Oklahoma State University students in Arista v. Does 1-11
Declaration of Moshe D. Rothman in Opposition to Motion to Quash*
RIAA Memorandum of Law in Opposition to Motion to Quash*
Exhibit 3 List of Ex Parte Orders*
* Document published online at Internet Law & Regulation
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Keywords: digital copyright online law legal download upload peer to peer p2p file sharing filesharing music movies indie independent label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs
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FROM THE DECLARATION OF MOSHE D. ROTHMAN
3. Mr. Fern informed me that OSU had no difficulty linking specific users of OSU's network to a specific internet protocol ("IP") address with the information Plaintiffs provided in the subpoena that was issued to OSU.
An outright lie! They might be able to link a specific computer, provided that nobody has changed their MAC addresses, is using their own NATting router which clones any required MAC address just so that it can be connected to the network, and that wireless wasn't involved, but that still doesn't link a specific user to the infringing activity on that computer. MAC addresses are easily spoofed, and especially in college where you may need to "borrow" someone else's access because of some problem with your own at the moment. Don't people have a clue what actually goes on in college computer science departments? Show up in court with 2 separate computers, both of which have the very same MAC address, and you should cast substantial doubt onto the RIAA's identification process.
5. I spoke with Mr. Fern again on August 28, 2007. During that conversation, Mr. Fern informed me that the portion of OSU's campus that is pertinent to the present action does not use Network Address Translation ("NAT").
Another lie, or simply clueless! Maybe the University hasn't plugged in any NAT boxes, but students do – all the time! You want to run your laptop wirelessly from your Internet connection, hey, plug in a wireless router into the wall plug, set the MAC address on it to the MAC the University requires for connection, and compute away. Your friends with wireless notebooks, "Hey, use my router instead of buying one of your own." They also use routers so that they can connect to a printer using a local LAN instead of a wire from the notebook computer, use more than one computer from the single plug in the wall, and for firewall protection, among other valid, legal uses. In fact, if I was a student warned that the RIAA was subpoenaing my information and I didn't yet have such a router, I would have one of my own within the next hour as my defense.
Bottom line: The RIAA here has no more evidence to identify a particular student as the infringer they seek, than they do to identify an ISP account holder in past cases – and we know how often they've been way wrong there. In fact, given all the shenanigans that do go on in college all the time, they probably have even less of a case!
OPPOSITION TO MOTION TO QUASH
Page 2 Footnote [1]: I just laughed at reading this. Great tactic to slow this down so that it can be carefully considered, rather than rushed through without the chance for sober thinking it all our first.
Page 3: "Indeed, hundreds of courts have agreed in similar cases..."
Have "hundreds of courts" actually been involved yet? Have even a single hundred courts handled these cases? With the Plaintiff's staff we've seen so far, it's hard to see how they could have prepared all the necessary paperwork in actually pursuing "hundreds" of cases so far. In fact, they refer to "hundreds of courts" a second time on the same page to try and diminish a single Texas case that they lost so badly. And the second time they refer to "hundreds of courts", its AFTER the Texas decision. This doesn't smell right, and if they lying to the current judge about this, he or she should be royally pissed off!
Page 5: "Defendants are activite participants on a P2P network, distributing copyrighted sound recordings..."
NO! COMPUTERS are active participants, and any Defendant may be nowhere near at the time, or even aware that their computer is connected to a P2P network. In addition, any user is not affirmatively okaying each file upload from their machine, like the RIAA appears to be trying to assert.
Page 7: Plaintiffs claim that they're entitled to expedited discovery because: 1) They will be severely damaged if these 11 users continue their infringing activity; and 2) they have an "inability to pursue their claims against Defendants absent expedited discovery.
1) 11 people are a drop in the bucket compared to the millions of current P2P users. To maintain that severe harm will happen ONLY DUE TO THESE 11 DEFENDANTS is patently unreasonable.
2) Why can't they use normal discovery instead of secret, ex parte, expedited discovery? What makes them so special in this regard, aside from the fact that normal discovery can be better fought? Answer: What the RIAA knows, and the Court should be well aware of, is that once the revealed identities cat is out of the bag, it can never be put back in again. The RIAA is desperate to get the identifying information, knowing that once they have it BY ANY MEANS NECESSARY, it can never be taken away from them again and they can hound these unfortunate few for the rest of their lives! All over nothing more than a few dollars of ACTUAL LOSSES!
Page 8: "Plaintiffs have met their pleading burden under Rule 8 by alleging facts sufficient to state a claim for copyright infringement."
NO THEY HAVEN'T! With all the Plaintiffs have provided so far, ANYONE could be sued if they ever touched the Internet.
Page 15: Again Plaintiffs rely on the DISCREDITED Carlos Linares Declaration. That should be immediately attacked and be forced to be removed from their motion.
Page 17: Actually, as explained above, the University CAN'T identify Doe Defendants with the complete precision that the RIAA claims here. A hundred students could walk into the court, all carrying laptops or routers with the identical MAC address that the University tied to the given IP address and time.
Page 17: "Because they cannot challenge the accuracy of the Linares Declaration directly..." WHAT? IT HAS BEEN SUCCESSFULLY CHALLENGED! Btw, stealing and cloning MAC addresses isn't even hard with network sniffing software. Such software will report every MAC address on a given wiring loop, such as cable service in a neighborhood, or LAN wiring in a university building.
Page 25: There's that "frivolous" word again. The one that gets me in so much trouble here. (Note: I did look up the definition of it on Groklaw, and it didn't seem all that complicated.)
Page 25: Nice to know that somebody feels that they need not comply with any of the provisions of the DMCA. Wish that reasoning could simply apply to all of us.
I do hope this court will stand up for the right thing, and re-enforce the Texas order against joinder of otherwise unrelated Doe defendants.
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