Thursday, December 13, 2007

RIAA protests Oregon AG's request for discovery into RIAA 'investigatory' practices

A big thank you to Ashbel (Tony) Green of The Oregonian for bringing these documents to our attention:

In Arista v. Does 1-17, the Portland, Oregon, case targeting students at the University of Oregon, the RIAA is protesting the Oregon Attorney General's request for discovery into the RIAA's investigatory practices.

It has not only opposed the request, it has moved to strike it.

Surreply Memo in Opposition to Oregon Attorney General's Request for Discovery*
Motion to Strike Oregon Attorney General's Request for Discovery*

* Document published online at Internet Law & Regulation

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16 comments:

Peter said...

"once the University notifies Defendants of the subpoena,
Defendants themselves will have an opportunity to raise any objections before the University
responds to the subpoena."

Of course, this would have the side benefit that everyone involved would have to disregard the valid points put forward by the AG and do something that they cannot: identify individuals by IP addresses.

Anonymous said...

Gee, I wonder what they're trying to hide...

I mean, we do already know they're not licensed to be doing their investigations in Oregon, no matter how they're doing them.

-Jimbo

Ray Beckerman said...

Now now peter.....

What you just said there sounds like logic.

You can't expect logic from these folks, anymore than you can expect (a) fairness (b) decency or (c) anything else most parents try to instill in their children.

Art said...

These filings are just more logorrhea from the plaintiffs.

It is lunacy for them to suggest the University doesn't have standing to protect the students' privacy, when it is the University's legal obligation.

They hypocritically accuse the University of having a political agenda that is inappropriately using the court system.

Their fallacious reasoning claims they have "...evidence of actual copyright infringement by each of the Defendants..." while at the same time "...the only entity that can identify Defendants is the University...".

When the University brings up other cases to support it's arguments, the plaintiffs go to great lengths to show how different they are from this one. However, when defending their improper joinder of the defendants, they go to great lengths to claim they are logically related. It is also preposterous to claim that improper joinder is somehow more efficient and non-prejudicial to the defendants.

The argument for joinder also makes the outrageous claim the defendants are using the "University's P2P network". So are they accusing the University of operating a "digital media distribution system"? If so, it seems they should sue the University and not the students.

I surely get dizzy when trying to find any logic in any of the plaintiffs filings. I suppose they hope the judge will grant their frivolous requests out of tiredness and confusion.

Regards,
Art

Anonymous said...

http://www.kval.com/news/local/11956421.html

"It is our view that universities carry the great responsibility of educating students about many important issues, including technology, ethics, copyright law and civic responsibility," says RIAA mouthpiece Jonathan Lamy.

He forgot to mention education about our legal rights as Americans (such as they exist today, at least), upon which this lawsuit campaign has run roughshod.

Mr. Lamy also claims the moral high ground for the RIAA which apparently are doing something they shouldn't be doing. Kind of like Edgar Bronfman's kids downloading music without paying for it. And as a punishment, his oldest will be sentenced to the hard labor of moving the RIAA's Wikipedia entry to the "Defunct Organizations" category.

Keeping it within the family indeed.

-Jimbo

Anonymous said...

You may think the RIAA has something to hide, and this is why they are resisting discovery.

The truth is, they have nothing to hide. This is because they have no case, and are still trying to go out and find one. You can't hide a case you don't have. This should truly be a case of put-up-or-shut-up – and we know how the RIAA folded the last time a court held them to that. Too bad it was after tens of thousands of dollars of legal fees in that case.

Seems to this non-lawyer that requests for Expedited Discovery, especially those done Ex Parte, must be held to a higher standard. There must be a truly valid reason for the haste, and the case must strong, not speculative, since important Defendant rights are truly trampled here.

Yet when I read the RIAA version of events, they see it as nothing of the sort. They feel a "relaxed" standard is appropriate instead of strict scrutiny. I feel they must be wrong, and hope the judge agrees. Giving in to the RIAA at this point when they don't have a valid case truly damages the Defendants they then proceed to harass after getting their private information.

If the court did nothing more than require the RIAA to explain how (they can't) an IP address and a time-stamp identifies an individual (it doesn't), or a single infringing computer (it doesn't), this case, and all the boilerplate cases like it, would be over before they start.

The RIAA likes to explain how an IP address is like a telephone number. Yet they don't point out how your house can have a dozen telephone extensions in it that all ring when that number is called, or that knowing a telephone number tells you nothing about which of these phones was in use, or who was talking on it, during the call in question.

I pray for an intelligent judge, or a proper motion to quash and dismiss against the RIAA, that can lay this out in plain English beyond any possibility of refutation. It's already established that an ISP account holder isn't automatically responsible for what may be done on their account, yet that is all the RIAA has ever been able to finger. After that it's threats and extortion in an attempt to find the evidence they do not have, or pressure innocent yet scared victims to turn on others and throw them under the RIAA's bus.

According to research jointly published by Digital Music News and BigChampagne today, one out of every three computers has LimeWire installed on it. The RIAA doesn't have to go very far to find a computer with illicit software – if the courts let them phish for it! You can't just let them randomly search computers until they eventually stumble over something.

--TTZ

Nohwhere Man said...

I suspect one thing that the RIAA & Co isn't counting on is that the Attorney General's office quite likely has far more resources than they do. Further, having smelled something like unlicensed investigators, it is obligated to pursue any and all potential crimes.

I also suspect that the AG's office might have some fun with this. Now, if only the NY AG would get involved, too.

Anonymous said...

Gee, maybe they dont want to answer questions from the official who can nail them under the Private Investigator laws and maybe the debt collection laws too? Or maybe many others, Ya never know what state laws the AG can apply here....

Im wondering did they get permission from the court to file a sur-reply? I was under the impression that that was not allowed under the rules unless they get permission? And if they did not, cannot the other side just ask for it to be struck?

Also, since they appear to want all the names, including guests, roommates, etc, dont they need to amend their suit to add more John Does? Even under ideal conditions, are they allowed to ask for more names than there are John Does in the case??? Also, more John Does then there are IP's.


Albert

derivative said...

Ray:

I think you need to file excerpts from this surreply with Judge Trager.

It very nicely explains how all the RIAA's cases have different fact patterns and how the defendants are unrelated.

Ray Beckerman said...

Dear derivative,

Great minds think alike. We did that about 7 hours ago. Will try to post it tomorrow.

Thanks for the excellent thought.

Best regards.

Ray

Anonymous said...

Ray (and Derivative),

Sounds like the RIAA just may have Estoppeled themselves Royally in regard to their related cases claims.

--TTZ

Mike said...

You know, in reading the surreply, I just had a flash of inspiration into how much the RIAA really doesn't understand the technology involved in P2P file sharing.

As discussed above, Plaintiffs’ claims for copyright infringement are based on well-supported allegations of direct copying of Plaintiffs’ copyrighted sound recordings by each Doe defendant and actual distribution of Plaintiffs’ copyrighted sound recordings to millions of P2P network users across the world.
- bottom of pg 9, top of pg 10.

Most of us understand that even if you had files in a "share" folder, those files are only accessible to the world IF the computer is on AND connected to the Internet AND your upload settings are set to permit files to be transferred. Reading the line above, however, it almost seems as if the RIAA is assuming that once the files are in the "shared" folder, they are ALWAYS accessible to ALL users all over the world at ALL times.

If true, it is a truly staggering misunderstanding of P2P technology. I don't know what scares me more - that they could possibly believe that or that it wouldn't surprise me if they did.

Mike said...

"If you know yourself but not your enemy, for every victory gained you will also suffer a defeat." - Sun Tzu, The Art of War

Somehow, I seem to find this particular phrase rather appropriate in this case. I would absolutely LOVE to see the AG come back with a full-blown investigation into the RIAA practices in Oregon.

Anonymous said...

Mike,

The real truth is that there is no specific "Share" folder or directory. P2P programs can have any folder designated as shared, meaning that, by the RIAA's view, ANY song in ANY folder counts as "distributed".

--TTZ

Anonymous said...

It would be great if excerpts from this appeared in _every_ Does case, to show how the RIAA lawyers committed _perjury_ in response to every motion to quash in those cases.

Pity that most judges will never call them on it, or procedural games will prevent any of it being filed.

-B

Anonymous said...

the AG's office is not participatly well staffed at all, exactly, and frankly AG Myers is not what I'd call a people's advocate. That said, kudos to him for standing up to RIAA. And next year we've got a guy running who made his bones busting the mafia in Jersey, and is all about being the citizens' lawyer. Go John Kroger!