In Arista v. Does 1-27, the RIAA's case targeting students at the University of Maine, where seven (7) students joined together and hired Portland lawyer Bob Mittel of Mittel Asen to make a motion to dismiss the complaint, the RIAA has filed its opposition papers.
RIAA Opposition to Motion to Dismiss*
* Document published online at Internet Law & Regulation
Commentary & discussion:
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
3 comments:
Plaintiffs could not ascertain the Doe Defendants' names , addresses, or any other contact information, but they could identify the Internet Protocol ('IP' ) addresses from which the Doe Defendants were unlawfully distributing Plaintiffs ' copyrighted works.
That's an outright lie. Plaintiffs have no idea who was behind the specified IP address, and there's no indication that the University has correctly identified any person correctly with certainty. But if the Plaintiffs are allowed to continue with the highly questionable identifications, they will proceed to put these innocent-until-proven-otherwise Defendants through financial hell. If I was misidentified by my University and thrown to the RIAA wolves, I'd be prepared to sue the heck out of the University for the sloppy work of not truly being able to identify any alleged infringer. Perhaps fear of a suit such as that would put enough fear into the University itself that they wouldn't roll-over so willingly to the RIAA. After all, this is the Does fighting the RIAA monster, not the University itself.
The University maintains logs that match IP addresses with their users' computer hardware.
Another lie. At best, the University maintains a log that matches an IP address to some device with a MAC address at the end of a wire. They do their best to ensure that only one IP address is ever assigned to one MAC address. Past that point, they have no clue what kind of device has that MAC address, or how many computers may well be behind it. Nor do they know who actually was using any of these computers at the time in question.
The University can then match those computers with the names of the students responsible for unlawfully distributing Plaintiffs ' copyrighted works.
What does it take to get it through these people's Thick Heads that the IP address supplied may well not match any single computer. And even if a computer is found, you still don't know which student that belongs to.
The RIAA claims to have sufficient "factual allegations" to sustain their case, provided you assume everything they claim is absolutely true. If you're not that stupid to actually believe ANYTHING they say is actually true, wouldn't it be time to conduct some discovery into just exactly everything they do have at this moment to decide if it's sufficient to violate privacy and subject students to baseless fishing expeditions?
By the way, have the record companies in this suit yet proven their ownership of the copyrights in question? Or is that to be taken on their word alone too?
You know, it wouldn't matter that the RIAA was blowing smoke here if it didn't cost so much to prove it. But it does. You can lose by winning, and those RIAA jackals laugh all the way to their next, equally flimsy, case.
When the RIAA does lose, it needs to be a whole lot easier to collect ALL the money due the prevailing Defendant.
And despite the RIAA's contention that they only have to prove two facts – ownership, and violation of an exclusive right – they have yet to prove the second, hence everything else they say is moot. I hope a judge can see that.
Plaintiffs have further alleged that Defendants have used and continue to use online media distribution systems to download (copy) and distribute the sound recordings at issue, in violation of Plaintiffs' copyrights and exclusive rights under the Copyright Act.
And once again we have the famous (and vile) allegation of "continue to use". Not a shred of proof offered, and it flies in the face of common sense. If I was accused of a criminal act, the first thing that I'd be sure to take care of was that I wasn't still doing it. In fact, this argues that SOMEONE ELSE OTHER THAN THESE DOES did the dirty deed, since I'm sure these Does were told by their lawyers, "If you're doing it now, and I'm not asking if you are, Stop!"
I wish such obvious falsehoods could simply piss off the judge and invalidate the entire filing.
(2) because they expressly state the acts by which copyright infringement took place and that such infringement was continuous.
I absolutely cannot see how those words are any kind of legal leg to stand on.
I'm led to wonder if P2P programs eliminated the ability to browse another user's Share directory, if this would bring the RIAA to its knees, since they would no longer be able to gather for their "evidence" the long lists of files they like to submit. Losing that functionality in P2P programs would be a small price to pay until the current madness is over.
And then, last, but hardly least:
Plaintiffs cannot be expected to allege each individual act of infringement because the infringement has been ongoing, likely taking place for quite some time.
Because the Plaintiffs cannot make their case, they argue that they shouldn't have to make their case. Since they intend to beat down the targeted Does without likely ever going to court anyway (one case only to trial so far), all that matters to them is their ability to keep on moving on this.
What really jumps out here, however, is the true weasel word. likely. This single word indicates the truly SPECULATIVE nature of all their charges. They really don't know. They claim it's continuous and ongoing, BUT THEY REALLY DON'T KNOW! That's why it's purest speculation, and why the RIAA should be denise.
And that "hundreds of other courts" argument means nothing, unless every one of those courts ruled against the specific arguments brought up in this specific case. Most were never contested at all, and many are too old to pass the Twombley test.
Lastly, Plaintiffs contend:
The extent of this viral, or exponential infringement set in motion by
Defendant is literally incalculable.
It may be incalculable, but the current Doe cannot be held libel for the actions of others, as the RIAA contents they must be. If that were true, then maybe someone upstream of these Does in the chain of distribution has already settled, and now the RIAA is trying to collect twice on the same distribution. You just can't have it both ways!
--TXX
Ray,
You've long stated in your filings that the Plaintiffs have failed to state a claim upon which relief can be granted.
At the end of the RIAA's filing here, they insist that they have managed to do exactly that - state a claim upon which relief can be granted.
Do you have an expert opinion about the truth of that contention on their part?
-Anonymous #1
It almost seems like they have to go out of their way to state directly that it does sufficiently state a claim because they know it really doesn't and it would come out as soon as someone committed to calling them on it does so.
It sounds kind of like the (now offline) website run by one of Michael Vick's cronies for a pitbull breeding organization that they felt the need to say "we do not engage in dog fighting."
Oh yeah, did anyone mention that, like in 43 other states, private investigators working in Maine (aren't you working in Maine if you are investigating people in Maine, no matter where you're physically sitting?) MediaSentry/Safenet is illegal and everything it gathers is illegally obtained, at least in those 43 states.
-Jimbo
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