Friday, November 23, 2007

RIAA Moves for Reconsideration in Default Judgment Case, Atlantic v. Dangler

In Atlantic v. Dangler, the Rochester, New York, case in which Judge David G. Larimer rejected the RIAA's unopposed motion for default judgment due to the paucity of its evidence, the RIAA has filed a "motion for reconsideration".

Court records reveal that the RIAA filed its motion on November 6th, but did not mail copies to Mr. Dangler until November 20th, apparently after the Court had brought it to their attention that they had failed to give Mr. Dangler notice.

RIAA's Memorandum of Law in Support of Motion for Reconsideration*
Hardwick Declaration in Support of Motion for Reconsideration*
Train-Gutierrez Declaration in Support of Motion for Reconsideration*
Exhibit (AOL Letter) in Support of Motion for Reconsideration*

* Document published online at Internet Law & Regulation

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






9 comments:

Alter_Fritz said...

I know we have pointed it out again and again numerous times what is wrong about the RIAA lawyers statements under penalty of perjury about "has detected an individual", but maybe Judge Larimer, that seems to be resonable when it comes to evidence, reads this blog post here for the first time so I will repeat what RIAA's own expert admitted under oath:
They can not detect/identify named individuals as doing any copyrightinfringement

This HRO lawyer Train-Gutierrez does this perjury thingy when he declares otherwise!

Your Honorable Judge Larimer I suggest you do this sua sponte thingy about those Rule 11 stuff against Mr. Train-G.

If your Honor would please take special note about the MediaSentry Lady's declaration page 3 the sentence before the last one. Here she admitted that it was a Computer connected to Kazza that they detected, and not an individual. Even though she claims more then once this individual thingy in her declaration.
Please your Honor, don't let the plaintiff's lying lawyers confuse you with this junk they gave you here. You might want to take note about the evaluation of the RIAA lawyers bahaviour from Judge West. He brought it well on the point in his orders.

(Mr. Beckerman can probably respond to this post with apropriate links to those orders or post the docket/case numbers so your honor can take notice on your own)

Thanks your Honor for your mindfulness.

Anonymous said...

Alter Fritz,

Not only can't they identify an individual engaged in any illegal act, they actually can't even identify the computer running the filesharing program.

An IP address doesn't identify a computer on a cable or DSL modem connection. It only identifies the modem itself, and that modem MAC can be easily spoofed by any other user on a shared cable loop. This is why they need to run forensic analysis on computer hard drives in order to locate the songs and filesharing programs in question. Any computer MAC address doesn't get beyond the cable/dsl modem itself. That modem substitutes its own MAC address at that point to continue the transmission up the cable/phone line to the next transmission handler.

The truth is that IP addresses are assigned to MAC addresses, not computers, and then related to a given subscriber who is the person who is supposed to have that unique MAC address-identified modem device.

So, IP addresses don't identify people, and they don't identify actual computers. The RIAA really has nothing here to justify a suit against any given individual from an IP address and a timestamp alone, and are only looking for a Fishing License!

Anonymous said...

For whatever reason, I can't get any of these links to come up. They don't seem to be broken, just blank.

Anonymous said...

Reloaded Adobe Reader and it works fine now. Don't know why that went south on me.

Anonymous said...

Elizabeth Hardwick makes some very questionable statements. Especially on page two where she states: Thus, when MediaSentry searches forsound recordings on the peer-to-peer network, views the files that each peer-to-peer user is disseminating to others,

I would strongly question her usage of the word "disseminating". This sounds like the old "making available" argument hidden in sheep's clothing. The dictionary definition of to scatter or spread widely, as though sowing seed; promulgate extensively; broadcast; disperse strongly implicates that she witnessed these specific files being downloaded by other people at this very moment – which, of course, she did nothing of the sort.

As for Patrick Train-Gutierrez, he states that computer can be positively identified because of the unique IP address of the computer distributing the files which can be captured by another user. It's a lie. A hundred or more separate computers can be behind a single home router that shows only a single IP address to the Internet at large. It is a fraud on the court, or amazing technical ignorance on Pat's part, to believe that a single IP address seen on the Internet at large equates to a single and uniquely identifiable computer. That lie is on par with the contention that every download equates to a lost sale at full CD prices. Any judge should sanction him severely for ever promoting such falsehoods in any court of law! Truth is that two computers can easily function quite well, with the help of a NATing router when connected to the Internet with the same IP address shown to the Internet. Therefore his total declaration is a sick joke on the court.

Maybe the only reason that the RIAA is pursuing this case is because of the name "Jeff" in the account and in the KaZaA user name. A stupid, or just badly coincidental, move if you can find a stupid jury with bad jury instructions.

Anonymous said...

In this case, I noticed that even though the defendant was named Jeff, and the username had the name Jeff in it, Im glad that the Judge did not jump to a conclusion based on that.

Weak points in their motion include:

There is NO evidence that even 1 song was downloaded by anyone other than the Music Industry's Agent, which of course is authorized and NOT an infringement.

There is a start time/date, but no evidence of how long the file sharing program was running. Also no testimony as to how long it took their agents to download the files, or why they quit monitoring the IP and what time that was.

They are still giving the IP address=single computer false argument. They have clearly forgotten part of their postal service comparison. The part about zip code=network (AOL) and address or mailbox= Subscriber might be considered close to correct. However, if they want to be complete, they forgot the NAME part of the postal address, and the fact that more than one person can receive mail at a given address/mailbox. A router or wireless router is a device that would allow more than one computer to use an IP address, much like the name in a postal address.

I saw NO attempt to suggest that a router was or was not in use, or any evidence that the operator of the computer was the person who was responsible for sharing files. Also, no evidence that any of the files (except for the ones actually downloaded) were in fact real ones, and not MediaDecoy files.

In todays world, I can see Judges taking judicial notice that most broadband connections set up today have wireless access, and permit connections from more than one computer. Even if the Judge simply assumes just one computer, it would not be a stretch of judicial notice that a typical home computer is used by multiple persons. Since copyright infringement MUST be proven to have been done by a SPECIFIC PERSON, the more persons and computers connected to a given internet connection, the less the odds that the subscriber is the one that is responsible.

Albert the Network Admin.

Mike said...

One thing that struck me the most when reading the declaration by Ms. Hardwick was in point #4. They take great pains to point out that they are not collecting any information above and beyond what any other person can do. Let's take a great leap of faith and assume that's true for a minute. Isn't there a significant legal difference between a private individual accessing the information for personal use and a company accessing the information on a for-hire basis?

I think the point I'm trying to make is that while a private individual can access the P2P information and use it for their personal benefit, aren't there more restrictions on the information gathering being done on a for-hire basis? How lenient is the system before licenses and certifications are needed in order to ensure the information is collected in a uniform manner?

I've seen people start to look at this aspect, but haven't seen it explored deeply to really understand if it can be a potential problem for the RIAA.

Mike said...

Now on to Patrick's declaration and man... there are some whoppers in this one:

- I'm hoping the defense uses the analogy of a mail drop to turn this around. As an example, the company I work for has over 400 people in one office. Mail addressed to the corporate office address can go to anyone there. One address, 400+ recipients. It's the individual name that routes it to a particular person.

- Item #3 directly conflicts with the statement made by Ms. Hardwick. The RIAA says they detected an individual, but the investigator states they detected a computer. Which is it? :-)

- Item #3, part 2: "and was distributing them to the millions of people who use peer-to-peer networks". He was? And you have proof of this? Can we see this proof please? If not, can we get this stricken for the perjury that the rest of the IT world knows it to be?

- Item #3, part 3: "A third-party investigator retained by Plaintiffs...". Can we see an investigators license please?

- Item #4, I've got the same problems here that I had in Ms. Hardwick's declaration. The investigators are for-hire and I thought there were different rules as to what they could collect and use in a for-hire situation.

- Missing Item #7. Plaintiff's then assumed that an individual identified as the account owner on record for the account that logged in to the AOL network at exactly 2005-08-24 6:26:51 Eastern Daylight Time was the same individual actually in front of the computer that was running the software that had logged into the KaZaA network as heavyjeffmc@KaZaA and not a potential third-party who was sharing the computer with the defendant or possibly sharing the Internet connection with the defendant with or without his knowledge. The Plaintiff's also assume that the individual identified as the account holder is also the same individual who installed the software that logged into the KaZaA network and that this person intentionally set the software to share all the music files it could find instead. The Plaintiff's did NOT assume that the software performed it's default action of automatically scanning the computer it was installed on and automatically sharing any and all music files it found without any indication to the user.

(Wow... I should get my sarcasm meter checked... I think I just broke it)

Anonymous said...

I find this interesting:

4. In gathering evidence of infringement, MediaSentry does not do anything that any user of a peer-to-peer network cannot do and does not obtain any information that is not available to anyone who logs onto a peer-to-peer network. Thus, when MediaSentry searches for
sound recordings on the peer-to-peer network, views the files that each peer-to-peer user is disseminating to others, obtains the IP address and screen name of each user, and downloads
copyrighted works distributed by each user, it is using functionalities that are built into the peerto-
peer protocols that each user has chosen to use to upload (or distribute) and download (or
copy) music.
----
They state they are not doing anything that a normal p2p user can do, BUT they state they downloaded songs from the user. Now I'm sure everyone knows it is impossible to download from ONE USER. Thats why P2P is different than regular internet traffic. When I download a file I may actually be getting parts of a file from thousands of different users.

So Which is it RIAA? If they say only from that person then they modified the software, perjury! Then if they admit it came from other users then that is grounds to dismiss. Since they can't prove he had the file.

Am I wrong?