Thursday, March 13, 2008

In Lafayette, Louisiana, default case, RIAA submits hearing outline indicating it intends to call no live witnesses

In Warner v. Lewis, the Lafayette, Louisiana, case in which the judge rejected the RIAA's first attempt to get a default judgment based on a written submission, the RIAA has submitting a "hearing outline" in which it indicates it plans to call no witnesses.

Hearing Outline*

* 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






12 comments:

Alter_Fritz said...

Since when does the RIAA has Zombies working for them?

"RIAA submits hearing outline indicating it intends to call no live witnesses"

I understand it with my broken english that their witnesses are not alive anymore or why do they submit an outline for a "hearing" with no live witnesses?!


*SNCR*

Anonymous said...

Looks like the RIAA Plaintiffs want to avoid any possibility of cross-examination of any of their witnesses, in particular Catherine/Katherine Which-Is-It Albert, Elizabeth Hardwick, Jennifer L. Pariser, and Silda Palerm. This could be especially relevant since in previous cases where copyright ownership was to be shown, copyright certificates were submitted for songs that were not in any of the Plaintiff's corporate names.

Again it looks like one of the parameters for cases that the RIAA pursues is a KaZaZ screen name that can reasonably be assumed to be linkable to a live person. If LtlJames@KaZaA has been asdf9876@KaZaA.com, this suit might have never been pursued.

Things missing from the Exhibit list:

1. The name of the MediaSentry person who originally identified the IP address, and his declaration of how and why this identification was accurate.

2. Who listened to the downloaded songs and identified them as corrupted (i.e. highly compressed) versions of the actual originals, and this person's qualifications to perform this analysis.

3. The downloaded songs themselves as evidence.

4. How either actual downloading (as opposed to other methods of acquiring digital media) or uploading (actual distribution, as opposed to making available) is proven, or any good argument on why the court should accept a lower standard than this for copyright infringement. Cases cited are hardly persuasive.

5. Why any digital music file not actually downloaded and identified by a qualified expert is even allowed to be mentioned in this case. That seems overblown rhetoric on the Plaintiff's part to make this case bigger and more in need of legal remedy than what they can actually prove, or are asking for in damages. Exhibit D should be stricken immediately as not relevant and likely prejudicial.

6. No evidence that any actual hard drive was ever inspected.

7. The age of the Defendant, who was still using his mother's ISP account.

XK-E

Anonymous said...

Looks like the RIAA is sueing for future "crimes", since the complaint wasn't/will be filed in August 2008!

Ray Beckerman said...

alter_fritz wrote:

"Since when does the RIAA has Zombies working for them?

"RIAA submits hearing outline indicating it intends to call no live witnesses"

I understand it with my broken english that their witnesses are not alive anymore or why do they submit an outline for a "hearing" with no live witnesses?!"


Dear alter_fritz, if I didn't know better, I'd have thought you must be new around here.

The RIAA has only Zombies working for them. (And of course ghouls, the walking dead, the undead, and a number of mutants).

Jadeic said...

According to PACER the hearing (if that is the correct term) before Judge Tucker, at which this submission by the RIAA would have been considered, was scheduled for 3/11/2008 01:30 PM. There are no papers yet filed to clarify the outcome. It may be, but I hope not, that we are therefore too late to comment on this latest ploy by the RIAA to establish dubious precedents in one case which they can later employ elsewhere.

I have only just downloaded the file but am already struck by what appears in paragraph III.B to be the RIAA's desperate need to establish appropriate precedent for a claim of minimum statutory damages without the need to reveal evidence of actual damages: something they wish, of course, to avoid at almost any cost. I will be paying particular attention to the assortment of cases under bullet point 4 and will post anything significant.

Paragraph IV also caught my eye. I'm sure this wording has appeared many times before but its possible significance has never struck me before. Assuming for the moment that the RIAA prevail in this case and that the Defendant has to comply with paragraph IV, then , in order to do so the Plaintiff must be in a position to identify each of the 'sound recordings made in violation of the Plaintiff's exclusive rights'. What then would happen if the Defendant responded that at least one of the identified tracks was not downloaded but ripped for a CD in their possession? The onus would then be on the Plaintiff to state categorically whether a track ripped from an owned CD was a 'sound recordings made in violation of the Plaintiff's exclusive rights': no more fudging. If they say 'yes' in order to force this Defendant to comply with a Court Order then they will be lambasted from every corner of the globe - if they say 'no' it is another nail in their coffin. What think you - or am I just rambling?

Dave

Anonymous said...

XK-E

Looks like the RIAA Plaintiffs want to avoid any possibility of cross-examination of any of their witnesses, in particular Catherine/Katherine Which-Is-It Albert, Elizabeth Hardwick, Jennifer L. Pariser, and Silda Palerm. This could be especially relevant since in previous cases where copyright ownership was to be shown, copyright certificates were submitted for songs that were not in any of the Plaintiff's corporate names.
Who is going to cross-examine the "witness"? This is a default case, where the defendant didn't even show up.

Q

Anonymous said...

Q,

Who is going to cross-examine the "witness"? This is a default case, where the defendant didn't even show up.

The answer to your question is that the Judge would question the witnesses. A proper judge isn't a rubber-stamp for whichever side happens to show up in court. A default judgment still requires that the side requesting it has presented, if not refuted, a valid case under the law. Such a judge might have questions to the witnesses to verify that what is claimed for them is backed up and credible.

There have been other cases (one at least) where the judge didn't immediately rollover to the RIAA when the Defendant didn't make a proper showing. That judge said that the RIAA's case was sorely lacking and might not survive a motion to dismiss by the Defendant, if the Defendant showed up to file such a motion.

XK-E

Russell said...

This is Louisiana, home of Voodoo. Zombies are possible :)

Although I agree with XK-E, if nobody from the defendant shows up, what is the value of a person being there in court as a witness.

Anonymous said...

"Who is going to cross-examine the "witness"? This is a default case, where the defendant didn't even show up."

The judge, I would say.

Rick Boatright said...

what are the odds that Mr Lewis has NO IDEA that the judge is taking his best interests to heart?

It seems odd that Mr Lewis did not show up when one of the RIAA documents is an affidavit from his mother saying that he was the one running Kazza....

Anonymous said...

The answer to your question is that the Judge would question the witnesses. A proper judge isn't a rubber-stamp for whichever side happens to show up in court. A default judgment still requires that the side requesting it has presented, if not refuted, a valid case under the law. Such a judge might have questions to the witnesses to verify that what is claimed for them is backed up and credible.

I think it ends up being worded "the Judge should question the witness." As you say, the judge must verify that what is claimed is credible fact, but I would not expect the level of analysis to be as thorough as a competent defense attorney. For example, had the plaintiffs presented live testimony, I wouldn't expect the judge to request documentation of fault rates of MS's technique. You can't expect every Judge to be a slashdotter.

Obviously, this is an RIAA ploy to enter "testimony" without scrutiny.

However, the scale is tipped to the RIAA's side here, in that they're presenting evidence that the mom ratted the kid out. The only thing the default defendant has in his favor is that the RIAA's legal theory of copyright infringement is wrong. Considering the number of cases they've already shuffled through the legal system, I don't see why there's such optimism for this case.

Q

Ray Beckerman said...

You called it, anonymous Q.