Tuesday, April 08, 2008

RIAA files "surreply" in Lava v. Amurao opposing exclusion of MediaSentry 'evidence' procured in commission of crime

In Lava v. Amurao, the RIAA has filed a "surreply" opposing the defendant's motion to exclude MediaSentry's criminally procured "evidence".

[Ed. note. Apart from the nonsensical legal arguments about the 1919 Attorney General's opinion, I spotted a huge "factual misstatement" (i.e. a lie) in the brief. See if you can spot it, or if you can find others. -R.B.]

RIAA surreply memo in opposition to defendant's motion to exclude MediaSentry's illegally procured "evidence"*

* 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

11 comments:

Shane said...

Ahh...the lies are to numerous to catalog after a brief read.

I especially like the one where the RIAA claims that Media Sentry "can have no way of knowing either who is distributing the files in a given case or the location from where they are being distributed."

While it is true that MS cannot state with a certainty who or where a file is being distributed (or, frankly, if a file is being distributed at all) but they can easily and automatically look up the geographic location associated with the IP and have a reasonable idea of the likely jurisdiction where MS is violating state private investigation laws to engage in their illegal investigation.

Heck, even internet advertisers can look up the city of your ISP and target ads like "Find singles in [your city]." These can be wrong, sometimes, since back in the dial up days ISPs like AOL had all their IP's resolve back to AOL's home state rather than where the dial up customers were calling from. And people can use proxy servers, too. But, the geographic location for an IP is more than enough to tell you that you are definitely violating state PI laws by targeting that IP in your investigation.

Additionally, if MS has no way of knowing who is distributing files then they can't say they've detected "an individual" (a single and distinct real person) violating copyright--a statement the RIAA loves to falsely make, over and over again.

Alter_Fritz said...

What do I win If I have found it?

I think its this one (ROT13 coded to not spoil it for others)

Gur fgngrzrag gung ZrqvnFragel nxn. FnsrArg pna unir ab jnl bs xabjvat sebz jurer gur svyrf ner orvat qvfgevohgrq vf va zbfg pnfrf n yvr fvapr3 zbfg erirefr QAF ragevrf sbe gur VC nqqerffrf unir ybpngvba vasbezngvba va gurz. Rira zr erzrzoref ernqvat gung qrgnvyrq rkcynvarq va fbzr bgure oevrs fbzr gvzr ntb.

Bu, naq bs pbhefr Gurl qb ABG bofreir svyrf orvat qvfgevohgrq (bgure gura gur aba vasevatvat qvfgevohgvba gb gurzfrys) Gurl nyyrtrqyl bofreir bayl gung gurer ner svyranzrf fbzrjurer.

http://en.wikipedia.org/wiki/ROT13

Alter_Fritz said...

Damn, when I answered the question, shane's spoilation wasn't visible, I swear I found the answer on my own! Ehrlich wahr! :-)

Matt said...

Here's the one I spotted.

Contrary to plaintiffs' claims, files on a file sharing network are not necessarily intended to be accessible.

Some p2p programs, perhaps including Kazaa, can be quite aggressive in scanning and sharing directories with little or no notice to the user.

Even more understandably, users accidentally put files in a shared folder -- it happens all the time. I use aMule, which shares only the directory I told it to share, but even just yesterday I was surprised at what people have been downloading from me. ("Wow, I didn't know I even had that MPEG.")

David said...

Ray,
On page three, middle of the 2nd paragraph, plaintiffs state "The licensing requirements of GBL 70 are designed to protect clients of private investigators, not those who are investigated."

Yet at the bottom of the page in the footnote it states in reference to the licensing requirements "The criminal law and right of action protect the members of the public whom the detective may investigate or pursue illegally".

Is that the one you had in mind?

Shane said...

Well, AF, I guess that some things just sort of stick out if you read enough RIAA lies, er, I mean, briefs :-)

BTW, I think ROT13 is a fun way to hide spoilers, but you should probably give people an easy way to decrypt. Here's an on-line decoder for AF's ROT13 text:

http://www.rot13.com/index.php

Shane said...

I also like this glossy treatment:
"Defendant argues that...public policy should, for some reason, favor the exclusion of relevant evidence."

Or, "Your Honor, for some entirely inexplicable reason the defendant argues that we shouldn't be able ta use our illegally gathered evidence. I mean really...what, next he's gonna claim we should have to follow rules and procedures! He's funny, he's a funny guy. Don't he know we got juice? You file 25,000 lawsuits you get to know a few people, know what I'm saying? He just don't get that. Capiche?"

Shane said...

The RIAA also makes the dubious claim that PI licensing requirements are **solely** to protect the rights clients (in this case, the RIAA) of Private investigators not those who are being investigated--a right the RIAA is apparently willing to waive.

So, if you are an unlicensed PI in NY just get your client to waive the licensing requirement. Problem solved! No more pesky regulations--just have the client sign a waiver. Think of the red tape you can save that way. Ray won't even need a law license, he can just have his clients say its ok for him to practice law in New York! Rule 11 sanctions for the RIAA's attorneys? Not so fast! The RIAA, as the client, will be happy to waive those, too.

To prove their point the RIAA cites the opinion of a New York Atty General* but just ignores the case law cited by the defense:

" See Schauder v. Seiss, 88 N.Y.S.2d 317 (Sup.1949):
"It seems clear that Article 7 of the General Business Law, dealing with the licensing,
bonding and regulation of detective agencies, is designed primarily for the protection
of the public against wilful, malicious and wrongful acts of private detectives who,
in the absence of stringent controls and the requiring of a bond, would be in a
position to cause irreparable harm to other members of the community because of the
very nature of their work." "


The RIAA's surreply is one of their least convincing efforts, though not as pitiful as UMG's attempt to sue a man for lawfully eBaying some of the unsolicited "promotional" CDs UMG sends out by the thousands--the sale of which is right clearly clearly allowed under the doctrine of first sale:
http://www.eff.org/deeplinks/2008/04/umg-says-throwing-away-promo-cds-illegal
(That really ought to get sanctions, too)

I'm glad Ray went to law school and relishes a good dust up. I couldn't deal with these guys day in and day out.


*date conspicuously buried in the appendix, which isn't included on on Ray's link

Alter_Fritz said...

sorry shane my fault, I thought those that did not know what ROT13 is would click the wikipedia link...
Where at the bottom are links for online decoders.

Even different ones in different language versions of that ROT13 entry.

Totally my fault for not providing one here though. Mea culpa, mea maxima culpa!
;-)

Anonymous said...

I'm sure judges prefer whining:
It is neither practical nor reasonable for any individual gathering information that is publicly available on the Internet to maintain licenses in all 50 states, especially where none is required. Indeed, if each state were to impose a $10,000 bond as New York does, the cost of obtaining such licenses in all 50 states would be prohibitive, and would seriously interfere with a copyright owner's legitimate right to investigate and protect it's copyrights from infringement

- No really, we don't want to, so why should we HAVE to?
- But it would be soooo expensive, so really, why should we?

The important point is that a copyright owner CAN investigate others, and use that evidence against someone. Where the RIAA and SafeNet erred is that SafeNet is investigating, and the RIAA holds the copyright. If the RIAA wants to create an operational arm to investigate copyright infringement, they can, but when they hire another company to do dirty work, that company has to be licensed and bonded to do the work. Just as in any other profession.

On a different tack, it's not of interest what they do in other states, it's of interest what they do in NY, as they were investigating someone in NY.

Essentially the RIAA went out and filed a bunch of lawsuits without doing all the necessary work prior to filing, and now complain that since they've filed these lawsuits, they should not have to be obligated to do the work they forgot to do.

Q

Alter_Fritz said...

hey Shane thanks for the headsup in that UMG promo CD case. (I knew this would be interesting and funny, but that it would be so fast so funny, you can't make such a thing up)
Alternatively, Augusto testified that “a common way to dispose of them” is to give unsold promotional CD away, or he may throw them away. Both are unauthorized distributions.

How did David Pogue observed last year already: "They lost their minds at the R.I.A.A."

Unbelieveable MegaLOL