A new "John Doe" case named Arista v. Does 1-11, targeting students at Case Western Reserve University, is pending in Cleveland, Ohio, not to be confused with Arista v. Does 1-11 pending in Oklahoma City, Oklahoma, directed at students of Oklahoma State University.
In Artista v. Does 1-11 (Cleveland) a student has moved to quash the RIAA's subpoena.
The RIAA has filed opposition papers.
The student's attorney, Dean Boland, based in Lakewood, Ohio, will be filing reply papers responding to the RIAA's opposition papers.
Motion to Quash*
RIAA Memorandum of Law in Opposition to Motion to Quash*
* Document published online at Internet Law & Regulation
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3 comments:
Interesting new approach to the flaws and shortcuts attempted by the RIAA in their rush to judgment. They appear to make some great points. I'm surprised that they didn't also attack the improper joinder of unrelated Doe defendants, or the inappropriateness of not pursuing their claim under the DMCA more fully.
The RIAA, in return, trots out the same lame arguments that they've used before. In essence they claim that because they've bamboozled every other court with their (due to their ex parte methods) unrefuted arguments, this court should be bamboozled as well. Some sue sponte response by the judge would be nice here.
The RIAA doesn't even get through their introduction without claiming – NO PROOF SUPPLIED – that the Defendant has been "copying and distributing" their copyrighted works. Then they trot out their numbers that "hundreds of courts have agreed in similar cases". I doubt that's true. Hundreds of courts may have granted expedited discovery, but that was likely because no opposition could be mounted in time. Many defendants have stated that the first notice of a problem they ever heard about was AFTER their identity was revealed and a demand letter was received.
Nice also to see how the Plaintiffs both DO, and DO NOT, rely on the Copyright Act in pursuing their case here. I'd always thought you had to choose which set of rules to play under, and couldn't take some from one side, some from another, use the Cable Act of 1984 at times, and ignore the DMCA altogether – but that's the arguments I'm seeing in the RIAA reply.
Btw, as has been demonstrated in Oregon, a University CANNOT with any degree of certainity identify any Defendant, or even that it was a computer attached to their network and assigned that IP address, at the time. The RIAA lies to the court once again by claiming otherwise.
Where I feel the RIAA's response fails completely, however, and the reason that the subpoena should be quashed and the case dismissed, along with attorney's fees to the Doe Defendant, is found at the bottom of page 4. Only two elements need to be proven, the second being "copying of constituent elements of the work that are original. Or at the top of Page 5, "copying [or public distribution or public display] by the defendant." Are those words in the [brackets] part of the actual quote? Even if they are, NO ACTUAL DISTRIBUTION HAS BEEN PROVEN, OR LIKELY CAN BE PROVEN. Plaintiff's case fails completely on this one point, since they are unwilling, unable, or both to show how they can prove this point. There is no point in commenting further. The RIAA has failed to make their case.
And claiming that it was "continuous", when it was never proven that it ever happened at all, is an absolute joke! Someone should require the RIAA to prove "continuous", unless that word means something other than it has ever meant before.
Too bad nobody who could actually be influenced by my comments ever seems to read them. (I don't mean you Ray, but I do mean other attorneys, defendants, judges, and the EFF. There's no feedback that any of these posts have contributed in any material way to stopping the RIAA fraud machine.)
I think you're wrong. I think the well-thought-out comments that are posted here are very influential. They are read by many of the lawyers who work on these cases.
We know that Matthew Oppenheim is an avid reader.
Some of the arguments used by University of Oregon would apply here, if CWRU decided they wanted to oppose the subpoena (like that would ever happen). Many undergraduates here live either in double rooms or six-person suites where any of the resident students (not to mention guests) could have access to a computer without requiring a login to connect that computer to the network or to identify who's at the keyboard.
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