Tuesday, January 22, 2008

Catherine Njuguna opposes RIAA motion to amend complaint, says RIAA's expert has admitted they did not 'detect an individual'

In Atlantic v. Njuguna, in South Carolina, defendant Catherine Njuguna has opposed the RIAA's motion for permission to amend its complaint to remove the "making available" claim and to add a "detecting an individual" claim. (See "RIAA jettisons its "making available" complaint in Atlantic v. Njuguna, asks Court to grant leave to amend complaint" (November 29, 2007))

Ms. Njuguna's lawyer, Jason Scott Luck of Charleston's Seibels Law Firm, pointed out in his opposition papers that the allegations of the proposed amended complaint are refuted by the RIAA's own sworn statements, including the fact that the RIAA's expert witness, Dr. Doug Jacobson, has testified under oath that -- contrary to the allegations of the proposed amended complaint -- the RIAA did not 'detect an individual'.

Defendant's response to RIAA's motion for permission to amend complaint*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica







Keywords: digital copyright law online internet 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 intellectual property






3 comments:

Shane said...

The response seems extremely clear and convincing.

The RIAA has the same evidence (lack of evidence) as it has had since 2005 and now seeks not to amend the complaint but to swap one legal theory for an entirely different one after the defendant moved for judgment. Clearly the RIAA is trying to forestall an unfavorable judgement.

How an impartial judge could not rule in favor of the defendant on this clear issue would be beyond me, so I hope this obviously correct opposition succeeds.

Anonymous said...

Not only didn't, and couldn't, the plaintiffs detect an individual, they can't detect even in individual computer such that it can be positively identified afterwards with the information they're provided. They can only hope to compel discovery on every possible computer they can connect to the defendant, and pray that they find the P2P program, and the files listed on their Exhibit, on it.

You'd think after suing 30,000 people, that the plaintiffs would finally be able to get it right by now.

Btw, if the statute of limitations has run out, can they actually still amend in anything that seeks relief under it?

It looks from the outside as though plaintiff's strategy is, you can't rule on a motion to dismiss the current complaint since we're about to submit an amended one. Repeat as often as necessary, or until defendant runs out of cash.

Plaintiffs’ presumed expert, Dr. Doug Jacobson

Sweet!

I have examined evidence that shows
12 that the computer registered to the IP address
13 belonging to [Defendant] was used to share
14 copyrighted material.


Someone needs to point out to the presumed Dr., that computers aren't registered to IP addresses. That any computer can be plugged into the cable or DSL modem that connects to the internet. And that his testimony that an IP address therefore identifies a registered single computer is an outright lie. This goes far beyond his inability to identify what user might have been using this "registered" computer.

-Dodge Magnum

Art said...

This is a well written response. Best of luck to the defendant!!!

In looking back at the RIAA's proposed amended complaint, it still fails to adequately link defendant to any specific acts of infringement. They start with "identified an individual" using an IP address, try to link defendant to the IP address, then refer to "such acts of infringement". OK, so what specific acts are they referring to again?

Regards,
Art