In Arista v. Does 1-27, the Portland, Maine, case targetting 27 University of Maine students, the RIAA has filed its opposition to the motions by one group of John Does to vacate the ex parte discovery order, quash the subpoena issued pursuant to the order, and vacate the declaration of Carlos Linares.
This is the same case in which
-Magistrate Judge Kravchuk has suggested the imposition of Rule 11 sanctions based on false statements of fact made by the RIAA lawyers in order to justify the misjoinder of multiple John Does;
-one group of eight (8) students joined together and hired a prominent Portland, Maine, law firm to represent them;
-two other students are being represented by the University of Maine Law School's Cumberland Legal Aid Clinic; and
-the student attorneys of the Cumberland Legal Aid Clinic have filed a Rule 11 motion against the plaintiffs and their attorneys.
RIAA Opposition to Motion to Vacate and Quash*
RIAA Opposition to Motion to Strike Carlos Linares Declaration*
* 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
3 comments:
The TNT v. Sterling Truck case only deals with the qualification of an expert witness, and nothing else. The Judge determined that the expert witness was qualified because he had worked for over 20 years in the field. The judge made a personal decision based upon the expert witnesses many years of experience and the fact that he used reliable methods to determine his findings, Linares has only been on the JOB with the RIAA for 6 years, and we all know how reliable the MediaSentry investigations are. Linares is not being used as an expert witness, it is still hearsay.
Defendants claim that the Plaintiffs' showing of good cause for expedited discovery was based upon the possibility that the University would destroy the information Plaintiffs seek. In fact, Plaintiffs' good cause showing was primarily based upon Plaintiffs' need to identify the Doe Defendants.
Is starkly contrasted by the actual text of the Linares declaration which lists at para 23:Third, without expedited discovery, Plaintiffs have no way of serving Defendants with the complaint and summons in this case. Plaintiffs do not have Defendants' name or addresses , nor do they have e-mail addresses for Defendants. The lack of service requirement is listed as the third element after: 1. the Defendants continous copyright infringement must be stopped as soon as possible, 2. The defendants may be releasing unreleased sound recordings, which must be stopped immediately, and 4. Fourth, and most critically, ISPS have different policies pertaining to the length of time they preserve logs which identify their users...
In their eyes, the three sentences regarding identification for service and meetings of the 9 page document were the most important ones, and the rest was just fluff.
In light of that statement, I'd rebut with: if the court does not strike the entirety of the the declaration, the court should strike all but paragraph 23, as Plaintiffs in their reply have stated this was the only intent for filing the ex parte motion.
Q
Mr. Linares may be an RIAA attorney, however, attorneys aren't, as a rule, computer scientists or experts in any field outside of the law itself. Even if Mr. Linares is an expert in copyright law, that in no way makes him any kind of expert in the ins-and-outs of computer programming, peer-to-peer protocols, TCP/IP, the Internet in general, how computers are connected to the Internet, NAT routers, MAC addresses (how they're assigned, how they're changed), existing P2P applications (even if he had the source code to read, which he doesn't), understanding anything at all about MediaSentry's own proprietary programs (again even if he had the source code to read, which he most likely doesn't), assignment of IP address at universities, or the traffic log maintenance procedures at the universities from where he subpoena's information. And this is only a partial list of areas where he certainly isn't an expert at all.
Supervising an investigation doesn't mean at all that you actually understand any of the actual details of how the investigations are performed beyond what's explained to you in simple words. If anything, having had Mr. Linares file this declaration under his name is most likely intended to shield any of the actual experts questioning from questioning of their methods since their names never appear here.
I think this is most evident by the weasel words used where it is stated that "Mr. Linares is not offering expert opinions. Instead, the Linares Declaration contains factual statements based upon Mr. Linares s supervision of the work of MediaS entry in this case." If you are not giving expert testimony, then how can you attest to the truth and accuracy of the factual statements you're making? It's a contradiction, and a lie. The upshot is that no expert testimony is being given here because no expert is testifying. As such, I would think, the whole thing should be thrown out based on the RIAA's filing here alone.
And to say that Defendant's attacks are premature is such a bald-faced attempt to get the judge to ignore everything that's wrong with what Mr. Linares has said and just give the RIAA what it wants that the Plaintiffs deserve to be sanctioned strongly.
"The statements in the Linares Declaration are based upon personal knowledge" is outright wrong. The statements in the Linares Declaration are based solely on what Mr. Linares has been told by other people whose own qualifications to have told him any of this have not been challenged. Mr. Linares is a protective layer between the people actually making these statements and the Defense. Wait, I already said that above!
An analogy, I can supervise people manufacturing computer chips, which is a highly technical process. I can listen to everything they tell me about the process, and not know enough to know if I'm hearing the facts, hearing a dumbed down version of the process, or completely being BS'ed by the techs. The fact that I supervised computer chip production most certainly Does Not qualify me to then offer expert testimony as to the facts of computer chip production. I cannot even say if I understood what I was seeing right in front of my eyes, although normally I'd be too embarrassed to admit to that while I'm collecting a large supervisor's paycheck.
'Nuff said.
XxX
Post a Comment