In LaFace v. Does 1-5, the case targeting 5 students at Northern Michigan University, the RIAA has filed opposition to the "supplementary motion to quash" made by the pro se litigant, John Doe #5.
RIAA response to "supplementary motion to quash"*
* 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
5 comments:
On September 20, 2007, Plaintiffs filed suit against Does 1-5 for engaging in massive copyright infringement on the Internet.
You would think, wouldn't you, that "massive copyright infringement" would require proof of uploading to other users hundreds of copies of thousands of songs, or thousands of copies of hundreds of songs. The RIAA has no proof of ANY unauthorized downloads or uploads at all, which is why they make their "Making Available/Offering to Distribute" arguments in lieu of such evidence.
They don't know that they've identified any of the "actual infringers". At best, they will only identify the ISP account holder at the college, who may have had nothing to do with this. Their overblown statement as to the issue at hand here is such a bald faced lie that they should be sanctioned severely for that alone, not to mention their other false, misleading, and outright illegal, activities.
MediaSentry strongly believes it does not fall under MGL ch. 147, Section 23 for two reasons.
I have to note that it's NOT MediaSentry actually making this reply to the court. It's the RIAA lawyer speaking for them in a case where MediaSentry isn't even represented by this lawyer. Isn't that hearsay, and inadmissible?
Since MediaSentry’s work was performed under the supervision and direction of Carlos Linares, an attorney, to assist him and other attorneys in their investigation
Oh, this is choice. Carlos wasn't acting in the capacity of an attorney at the time he contracted with MediaSentry, and he certainly isn't listed as an attorney in this case that's using the illegally gathered evidence from that investigation.
Second, there was no private investigation here because the information that MediaSentry gathered is public information that was placed out on the Internet from Defendant’s computer, on Defendant’s internet account, for any peer-to-peer network user to see.
Even if I leave the curtains of my house open, I don't believe that this entitles to you cross onto my property to peer into them, or photograph through them from a public thoroughfare.
As a result, Defendant has no expectation of privacy with respect to such information and cannot claim to have been harmed by the disclosure of private information.
Excuse me, but attaching my name, gathered by an improper subpoena process that strove it's best to exclude me from the process, to private data that never had my name attached before, and then making this connection publicly available in this manner certain DOES violate an Expectation of Privacy.
Defendant has not cited any authority to support her argument that a violation of the PDLA is grounds for excluding evidence in a civil trial or quashing a subpoena under Federal Rule of Civil Procedure 45.
When the ONLY evidence you have for asking for an ex parte subpoena in the first place is illegally gathered and illegally misrepresented to the court in the first place, and without it you have NOTHING, I'd think that's a pretty strong argument to quash.
Plaintiffs are not aware of a single case where evidence was excluded because of a violation of any portion of the PDLA or MGL Licensing Act.
And we resolutely refuse to look for one.
-DM
Isn't it about time that some 'concerned citizen' in the State of Massachusetts wrote to ask Sergeant Bishop why he has thus far failed to respond to the RIAA letter of 10th January 2008 disputing his interpretation of MGL ch. 147, Section 23?
If I could do it from here in the UK I would.
Dave
Those two arguements are so poor you can pretty much see right through them.
I hope and pray that the Doe will reply to this one. Clearly Media Sentry was _not_ acting under the supervision of Carlos Linares, since the RIAA spokesperson just the other day in her remarks said that they were not even aware that Media Sentry had massively increased their research. In exactly what regard are they supervised?
And, as has been ablely pointed out before, Carlos Linares IS NOT A COUNCIL TO THIS LAWSUIT, so how media sentry be shielded, EVEN IF you granted the first argument? Or is it that ANY lawyer, ANY TIME can investigate ANYONE and not require a PI's license? I think that will come as a big surprise to the mass of PI's who work primarily for lawyers...
as to the second argument, that there was no private investigation here, I think that the RIAA may be attempting to sew confusion, since the perusal of public records is MUCH of what PI's do?
The only one that I, the non-lawyer here feel a little queasy about is, and God knows I'm not enough of a legal scholar to go research it, is that I would sure like to see a citation where in some OTHER civil case evidence gathered through an improper and illegal investigation was thrown out. Otherwise, the RIAA's argument of "and even if it was illegal, what does that have to do with a civil case" might still win the day. -- which would be _bad_.
How can the Motion to Quash be moot, simple because the University already answered it? That really seems to smack of a violation of due process. It would seem to me that either during the John Doe process or even after that, during the individual lawsuit, the defendant would have grounds to challenge it if it was ex parte.
JD
Interestingly the RIAA says that the motion to quash is moot because the University has already (improperly) responded to the subpoena - and not because they've already dismissed the case. Given that they have what they wanted out of this improperly joined Doe case, it's surprising they haven't already filed their dismissal WITHOUT prejudice.
I can hazard a guess as to several reasons this motion may very well not be moot. And I suspect that the RIAA has already figured this out as well, or they wouldn't be bothering to oppose it.
1: The judge could still rule against the subpoena, and against the RIAA's ability to use this data in this case, or any other.
2: If this data is used against this student after the judge rules in his/her favor, the student shouild have a strong case against the University for improperly releasing his student information, and could claim damages sufficient to offset any RIAA settlement or judgment against him.
3: Also any such adverse ruling against the subpoena might make other universities sit up, take notice, and not be so quick to respond to future subpoenas.
4: And, of course, it would set a precedent that these illegal subpoena's can be quashed.
Now if the judge was to require dismissal WITH prejudice of the instant case, that could stop these things in a real hurry. Or at least until the RIAA found some way to claim that their new case was based on new evidence against this person they'd already identified. Still, that would, or should, be tainted by this improper evidence.
Btw, I've yet to hear of anyone deposing the people at the ISP about how they made this identification in this case, reasons it might not be correct as to any actual infringer, and how many unidentifiable requests the RIAA has made to them. And I DON'T mean the head of the datacenter, who is a political creature himself. I mean the actual technicians who did the identification work and know the truth about this - and are willing to speak it if asked under oath.
XK-E
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