Thursday, April 10, 2008

Motion to strike filed in Arista v. Does 1-21 in Massachusetts based on MediaSentry illegality

Correction. The motion in London-Sire v. Doe 1 (formerly Arista v. Does 1-21) did not show violation of the cease and desist order, it showed prior violation of the Massachusetts licensing statute. I made an error in reading the printouts. However, we have learned of instances of MediaSentry's violation of the cease and desist order from printouts filed in a new case, LaFace v. Does 1-17. -R.B.]

The motion to vacate the RIAA's papers that was made by the students is based on proof that MediaSentry has been violating the Massachusetts statutes, as stated in cease and desist order previously issued by the Massachusetts State Police on January 2, 2008, continuing to conduct investigations without an investigator's license.

Memorandum of Law in support of motion to strike Carlos Linares declaration*
Exhibits (Cease & desist order, printouts)*

* Document published online at Internet Law & Regulation

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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:

Anonymous said...

The RIAA just doesn't know when to quit, do they? They get told NO by one judge, employee of a state agency, or whatever, and they just continue blithely along as though they hadn't heard a word of it to the next judge, case, state, or you name it. It's as though they are so big and so important that nothing bad enough can ever happen to them to deter these actions. They seem to feel "We on a mission from God". (Now I'm in copyright trouble for borrowing that phrase, no doubt.)

As for the Carlos Linares declaration, that is so badly flawed that it should have been discredited beyond any further use long ago. That fact that it hasn't been beaten down enough yet (Linares should be in jail himself for his lies to the court, as well as sued by every victim who has ever been harmed by those lies) is why the RIAA continues to get away with still using it as well.

I'm sure that P. T. Barnum's most famous saying is applicable to federal judges as well, since the RIAA goes out and proves the truth of it every day.

It is technically feasible that the Court itself could reproduce copyrighted matter on a photocopier without permission, and millions of such illegal copies are made every day by others, which following the rationale of the ORDER, would lead to a “statistically reasonable inference” that illegal photocopies are being made by the Court, but that does not mean that the Court actually did so. By storing hundreds of copyrighted books in its chambers and having a nearby photocopier, the Court “has completed all the necessary steps,” but can a “reasonable fact finder infer” that infringement “actually took place”?

Absolutely lovely demonstration of the fallacies of the court's previous reasoning.

XK-E

Shane said...

Wow. One has to hope the judge sees fit to reverse the courts "statistical inference" theory, which the judge previously wrote:
“that evidence supports an inference that defendants participated in the peer-to peer network precisely to share 12 copyrighted files. The evidence and allegations, taken together, are sufficient to allow a statistically reasonable inference that at least one copyrighted work was downloaded at least once. That is sufficient to make out a prima facie case [that an unauthorized party made the copy necessary under Latin Amer. Music Co. to demonstrate distribution infringement.]”

This is another variation on the accusation proves itself standard the RIAA likes to advance. In this case the judge says as long as you have access to a lot of infringing works and have a means of duplicating them it may be "statistically inferred" that you are pirating them.

This is a novel standard, indeed, and means that no plaintiff need show evidence of infringement to make a prima facie case, only that the defendant has access to copyrighted works and a copying method, which, naturally means that everyone in the country with a pencil may be "statistically inferred" to be a pirate.

This new statistical inference standard would certainly make it easier for the RIAA to send out demand letters claiming it has "all evidence necessary to prevail at trial." The RIAA wouldn't even need MS anymore, it could just send out bulk mail letters based on the statistical inference standard.

Hopefully, the judge will see how such a standard is ultimately untenable.

Anonymous said...

Shane,

Does that mean you get "statistically damages" instead of statutory damages?

-DM