In Atlantic v. Brennan (__ F.Supp.2d __, 2008 WL 445819), the Connecticut case in which Judge Janet Bond Arterton denied the RIAA's application for default judgment and rejected the RIAA's "making available" theory, the RIAA has made a motion for reconsideration attempting to verturn Judge Arterton's decision.
Motion for Reconsideration*
Declaration of Timothy Reynolds in Support of Motion for Reconsideration*
Declaration of MediaSentry's Elizabeth Hardwick in Support of Motion for Reconsideration*
* Document published online at Internet Law & Regulation
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
13 comments:
The RIAA sure loves these reconsideration motions.
So they sent two letters (no indication of whether or not they were certified / registered / etc) and an email. Then instead of serving the actual Defendant, they served his mother. Do they know if the actual Defendant ever received notice? Since his mother was served on March 22, 2007 and he was likely at school at that time, I suspect the Defendant has never even been properly notified.
Since I'm not a lawyer, I have to ask. Given that the defendant is a legal adult, is serving the mother sufficient notice if she is present at his legal address? Actually, let's take that a step further - is serving ANY adult at your legal residence sufficient notice. After all, how could the process server be certain that the woman receiving the paperwork was truly his mother?
Just thought I should point out the wording in the Media sentry exhibit. Notice it says "engaged by the RIAA" NOT by the RIAA lawyers....
New thoughts...
Since the case against the defendant is based on actions that took place when he was in MA (Boston U.), is another possible defense the legality (or as it may turn out to be illegality) of the MediaSentry "investigation".
Secondly, we've got the issue of distribution to plaintiff's agents again. They claim it's infringement, but the agents were authorized, so that should be a non-issue.
The blatantly false statements on pg 19 irk me to no end:
"...harm to Plaintiffs results not only from Defendant's downloading, but also from Defendant's unlawful distribution of..."
Umm.... you have proof he downloaded instead of ripped from CD? And distributed to millions? BU must have a pretty big connection to the Internet for one single user to be able to do that. Here's some simple math:
1 MP3 song = ~3.5 MB file
3.5 MB file = ~29.4 million bits of data
29.4Mb data * 2 million(*) users = 58.8 trillion bits of data
(*) I chose 2 million because it's just over the line from million to millions
Assuming the Defendant had the fastest possible consumer network connection (Gigabit) and there was no overhead in data transmission, it would still take 58,000 seconds to transmit that much data.
Realistically, the user had a 100 Megabit connection, but was further restricted on upload speed to somewhere around 1.5 Megabit. That puts the upload time requirement to somewhere around 38.3 million seconds... also known as 443 days. Considering this is a college and the Defendant would have had to leave the dorms for the summer (including taking his computer), I don't believe the actual distribution to "millions of users" is possible. Besides... where's the proof of distribution to users other than Plaintiff's agents?
WOW, this Lawyer Mr. Moran is really bold!
I was only on page 4 or 5 of his letter and already spotted about 3 thinks that I would classify as plain lies on the face that RIvsTP's valueable help to find resources about the RIAA "rewrite copyrightlaw"-campain pointed out that the factual realities are different then Mr. Moron claims they are.
Me wonders if he isn't afraid that Honorable Judge Bond not only deny the reconsideration but aditionaly will punish him with "Rule11" for this clear lies.
P.S. Since I stopped reading after the early reaccuring lies, was there anything else interesting in his brief further below worth mentioning?
"This individual had 2071 music files on his computer and was distributing them to the millions of people who use peer-to-peer networks. "
This is blatantly false. So much so that (again) I think this is perjury by the attorney or shows s/he are [fill in synonym for stupid here]. A) I2HUB never had more than a few thousand users at any one time and B) The collective user pool never reached more than 100k. C) It's not available to people who use ANY p2p network but only to those on the one the user was using...
"An IP address can be associated with an organization such as an ISP,
business, college, or university, and that organization can identify the peer-to-peer network user
associated with the IP address."
This is as we know is false as they can identify a computer or a hub but not necessary a user.
Finally...the first 4 attempts to contact them were (imo) not attempts to serve the defendant but attempts to "talk" and threaten a lawsuit.
"MediaSentry’s process for identifying potential infringers and gathering evidence
of infringement has multiple fail-safes to ensure that the information gathered is accurate.
MediaSentry takes numerous steps to check and double-check the IP address of the potential
infringer."
What are they?
Question to media sentry: How many people were connected to i2hub on this date?
Question 2: Were the files downloaded instantaneously?
Question 3: Where did you get your Internet 2 connection? That IS NOT something available to every user on the internet like you claim.
What gall to say RIAA hired MediaSenty when in Arista v. Does 21 they just said MS was employed by attorneys as an exception to the Mass. private investigator license requirement!
And what a crock about Brennan being properly served! No David Brennan is listed in the phone book at the address they claimed to have served him. If I were the court, I'd require a lot more to convince me he was served.
They do some really loose talking about an actual distribution when the judge and everyone who follows these cases know that the only "distribution" was when MS made the copies, in other words, NO distribution in violation of 106(3) was shown. They keep throwing reproduction around but cited no evidence of it. They say MS captured meta data but never said they looked at meta data on Brennan's files and could prove those files were illegal.
Finally, if I were the Court and found out that MS was being investigated in Mass., where the Brennan was using a B.U. I.P. address, and that plaintiffs failed to bring that matter to my attention, I'd sanction them.
Igor
can you please explain your question 3 a bit further
Waht do you mean with "that is something not available to everyone"?
Does it mean -even if the other statements by Mr. Moran were not (probably) perjury- that MediaSentry were somewhere where everyone (aka. the public) could not go, so even if the judge would value all he statements in favour of plaintiffs, what allegedly happened was not in public to the public as defined in your copyrightlaw , but in some kind of closed "usergroup"
Man, then i guess that would mean that Mr. Moran has lied even more then I thought he did!
Someone should give the Judge this highly technical information as soon as possible I would say.
Timothy M. Reynolds repeats the OUTRIGHT LIE that "users" of peer-to-peer networks who "distribute" files over a computer network can be "identified" by using "Internet Protocol ("IP") addresses" because the "unique IP address" of the "computer" distributing the files can be captured by another user during a search for files, or during a file transfer.
This is wrong in so many ways that have been detailed here on this blog so very often.
He goes on to compare it (badly) to the postal system and zip codes.
And from Elizabeth Hardwick: "MediaSentry does not do anything that any user of a peer-to-peer network cannot do."
Such an outright LIE. MS claims that their methods are secret, proprietary, and the results of tens of thousands of man hours of development over years of time. That is clearly not any ordinary user.
She also claims (erroneously) that users MS detects are "distributing" up to thousands of files, when in fact all she has seen is a purported list of files residing on a storage device of some sort. No actual "distribution" to any member of the public was ever observed.
She even makes the legal judgment – no doubt to save the court unnecessary effort – that they can identify, from the file, "the person or group that originally copied the file and began disseminating it 'unlawfully'." She is now judge and jury in matters of law.
Since she declares under penalty of perjury that the foregoing is true and correct, can we get her put in jail for her lies? Please? Pretty please?
Maybe seeing will be believing. It's past time to take a picture of a couple dozen unattended computers – i.e. no users sitting in front of any of them – connected to a NAT-ing router, which is in turn connected to the Internet. This will show two dozen computers, ALL PRESENTING THE VERY SAME IP ADDRESS TO THE INTERNET, with NO POSSIBLE IDENTIFICATION OF ANY INDIVIDUAL USER, and require the Plaintiffs to explain how any methodology available to them can identify the one computer in this setup actually sharing files, or which legal person is responsible for that computer. Let's make it simple for the courts to see how flawed the Plaintiffs assertions truly are.
I'm tired of fighting this battle any longer. For all my good arguments on why the RIAA is full of hot fetid air in everything they're trying to fraudulently put over on the courts, simply view my past posts. I'm tired of repeating myself over and over again as the RIAA looks for ever new courts and judges that haven't go a clue to how vacuous their exiguous arguments truly are, and how they misuse the court system to punish their perceived infringers with no valid evidence. Judges that allow the RIAA cases to continue on for a second longer than necessary are simply pawns, playing right into the hands of the Recording Industry and their campaign of terror and extortion. Uninformed judges are not good for justice.
-DM
Alter_Fritz,
I2Hub was run over a network seperate from the internet. It was over what is called Internet2. See here to read more about Internet 2. But basically it was a research network that at the time hooked up mostly Universities and a few industry research institutions (which is why allegedly college students could get blazing speeds using it).
I don not believe that RIAA/Members were part of it or were allowed to do the activities they were doing on it to scan for file sharers (though I'm not 100% on this). The best I can figure, Warner Bros. or someone related to them did get into the group at around 2005 (though not sure). I am almost 100% positive SafeNet/MediaSentry was not part of this special group of members and should not have had any access for their "investigation".
They could have of course piggy backed on some poor student's connection to do this (by paying him to conduct the investigation for them from a college campus...which would probably be a violation of most school policies).
Anyway, this needs to be flushed out in discovery as to how they got access to Internet 2 and why they didn't specify.
Just to be clear though, Joe Schmo from a Verizon or Time Warner or Comcast connection could not access Internet 2 without having new wiring hooked up to their house not from those ISP as it was physically over different wires and required permission.
Thank you very much igor, that is very informative indeed.
P.S. according to the membership list that they are "making available" on their site under
http://www.internet2.edu/resources/Internet2MembersList.PDF
the R.I.A.A. was/is indeed a member, but no mentioning of an unlicensed investigator company like MediaSentry/Safenet as member!
So where could "the public" as defined in your copyrightlaws sign up with the Y.M sorry R.I.A.A. to make their songs available too?
They couldn't? To bad then for their complaint about violations of some distribution right that does not even apply in the first place since the "how to"-infrignement is done requirements that the law mentiones are not met, no matter if internet2 or not.
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