Thursday, June 12, 2008

Morehead State University made motion to quash, motion denied, in Zomba v. Does 1-15

We have just learned that in a case named Zomba v. Does 1-15, Morehead State University, in Kentucky, made a motion to quash the RIAA's subpoena, and the motion was denied.

Memorandum of Law in support of motion to quash
Affidavit in support of motion to quash
Order denying motion to quash



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

9 comments:

dave said...

Its unfortunate that Universities are having such a difficult time dealing with the RIAA. However it is good to see that Morehead State University is at least fighting. While I was studying Political Science at Virginia Tech, the administration would constantly warn that they would give names of people using file-sharing software if they RIAA asked for it. The entire point of a University is to share ideas and the RIAA is opposed to the "Fair Use Doctrine".

I like that your blog is keeping track of the litigation. The RIAA's position of targeting people downloading music is a violation of due process unless they can prove they are not pursuing people in a discriminant manner.

Anonymous said...

The good news here was that the university itself filed the motion to quash.

The bad news here is that they got a judge who clearly has no understanding of the issues at stake.

The ugly news here is that the RIAA clearly doesn't care at all about fingering any actual infringer. As long as they have a name to sue and extort additional information from they're happy. You'd think that wouldn't be enough to file an individual suit on, but too many obtuse judges are letting those suits stand (until the RIAA dismisses them themselves for obvious lack of evidence).

The best news would be for the university to respond back that they are unable to identify any infringers from the information provided in the subpoena to them, and then make the RIAA try to prove them wrong. Take a picture of the network connection jack that they've traced the information to and point out to the court that they have no information of anything beyond that point. Truly fingering the wrong student(s) as infringers because of the inability to identify any specific person from the information provided would be a flagrantly wrong act on the university's part.

{The Common Man Speaking}

Alter_Fritz said...

so Morehead has this pesky printers too [1] at the network sockets those IP adresses mentioned by RIAA were assigned to?
And those criminal printers then download songs to translate them to sheetmusic papers and then make those available with every following print job they get?


Line those printers up in a row and have the "fist on table pounding" RIAA lawyer depose them as hard as they can bear! I heard if you threaten them with installing 3rd party toner cartridges in them (which make them experience feeling like the well working water boarding torture on humans) they confess every download in double spaced font printed high gloss papers!

[1] http://dmca.cs.washington.edu/images2/big_wanted.jpg


it could actually be funny if there were not those judges that have no clue and rule like they did again here! :-(

Alter_Fritz said...

with all due respect!

This judge Wilhoit seems to be an [sorry no comment policy violations allowed here]!
Why the heck does he talks about "theft" when even me that has not studied american law understands that it is not "theft" of intellectual property but infringement of some narrowly tailored reproduction rights stated in your lawbooks if the allegations in the complaint are true!

If it were theft of intellect, how can the plaintiffs still exist?
If a Thief steals the intellectual property
(maybe the judge want to look up what intellectual means and where it takes place?)
and thereby comiting a theft then that would mean the plaintiffs were already dead since without the device responsible for intellectual stuff [we say brain to it!] someone can not exist!

Ergo no "theft" of property since the brain seems to be allegedly still where it was before the filing by plaintiffs in this case

But maybe they are zombies and still can exist without brain?
And this Judge Wilhoit Jr. is just much more knowledgeable then the rest of you guys, even your lawmakers in congress?!

He even extended in his overruling order the meaning of a judicial term of art; "Piracy" to something that, if it happend as alleged does not involve wrongdoings that were tailored by this "term of art" Piracy which had a destinct meaning in your law after it was used the last couple decades for stuff not involving murdering humans on the high seas

What a knowledgeable judge he seems to be!!one1eleven

Anonymous said...

Alter Fritz,

With respect, this Judge Wilhoit appears to be being led by the nose by the RIAA lawyers. There are explaining to him how they feel the law should be, and no countervailing opinions have been allowed in to point out their errors due to the ex parte nature of these cases. By the time someone could get in to set things straight the RIAA already has the names they want and have cut and run from this case.

I can only believe that there is a significant defect in the current law school educational system. This defect teaches future judges that what happens ahead of the trial is of little consequence (unless immediate harm can be shown) because it will all come out in the wash at the trial itself. And that great deference must be shown to the Plaintiffs during this time as they struggle to make their case.

This defect leaves them ill-prepared to deal with the RIAA's current tactics which don't require a trial at all to inflict major damage on their targets and allows for great misuse of the very court system itself.

XxX

Albert said...

As a professional Network Administrator, I have advised my clients to limit how long IP address assignment data is retained in DHCP and RADIUS logs. Storage is NOT free and there is no reason to retain information longer than required.

There is NO business purpose for keeping the information for more than 1 or 2 weeks at most. The only purposes from the schools point of view to use the data is: 1) Tracking Spam and 2) Tracking Infected Machines on the network. These are short term events, with lookups happening within a day or 2 of the event.

Managers of IT systems have to consider costs. By retaining the data, there are clear staff costs in looking up, verifying and responding to the RIAA, MPAA and others. If a shorter policy is adopted, then the response is much easier. A standard letter is sent saying "Sorry, we have no records", which can be done quickly and with little cost.

Since I know of NO law requiring long term storage of this information (After all IT departments are NOT agents of the RIAA), there is no point in it.

Of course the RIAA would not be happy with such action, but they are not paying the bills.

Albert

Anonymous said...

Albert,

Your problem is that you're up against Data Hoarders. In I.T. departments data is worshiped. Bits and bytes are their livelihood. Their raison d'etre. Even if the data has no value today, who knows if we can't find some new and imaginative way to use it two years down the line. After all, there's always a need for Excel charts of usage to be placed into Power Point presentations to justify needed network upgrades at next year's budget committee meeting.

(Have you ever heard of your I.T. department referred to at the budget meeting as "That money-sucking black hole"? I have!)

And with archival storage so cheap, it absolutely tugs at the heartstrings to delete anything permanently. I mean once it's gone that way it's gone forever!

And never underestimate the power of CYA. Who wants to be the one to tell the college president the identity of the person who logged on the system for 5 minutes only 2 years ago can't be determined any longer? "What do you mean that you once had this information, but that you don't have it any more? Don't you realize that a free lunch from the visiting RIAA lobbyist is hanging in the balance?"

Until you can change this culture, someone will be keeping a burned DVD of the old logs somewhere just in case, which means it's discoverable by the RIAA.

And no doubt they'll want image copies of all your logging drives to check the deleted space for any recoverable information if you tell them outright that you don't have it. You may be the I.T. experts, but they're lawyers and they know more about I.T. than you ever will – once they get their pet experts on the case.

{The Common Man Speaking}

Alter_Fritz said...

and even the master guy in charge here (big boss google that is as owner of blogger.com) advocates for keeping all your old emails, since you have now all this extra big space to store.

So Common Man Speaking is right in the observation of the culture revolving around digital data hoarding.

(But still see the value for freedom fighters:
Without this great big storage and the utter stupidity of the MediaDefender guy to forward ALL his corporate mail to that "never need to delete anything anymore"-Gmail account that company would probably still be healthy in the business that MediaSentry is these days, if the public and the companies that hired MD wouldn't have learned how disrespectfull Randy and Co. were talking about the stupid label bosses that payed them so much money)

Praise the human mindset to keep and collect stuff, It's in our genes ;-)

[me just waits for the grand opening of "MediaSleepy.org" with all the funny anecdotes these guys made about RIAA-Richard and Co.]

http://torrentfreak.com/pirates-slowly-killing-mediadefender-080603/

Albert said...

True, Ive seen my share of data hoarders here too. However here, the data that is hoarded is data created is old documents which we must keep, some going back to even before WordStar 3.3 days. This is the reason I keep a dos machine around for data conversions from the old days.

However, things that are automatically generated such as log files are not has highly prized around here as our cache of human generated documents and reports.

We are a unit of state government and as such have to make a formal retention policy for any information we keep. The managers above me have no problem developing a policy to retain every staff letter and document from the beginning of our existance.

However, they seem unwilling to adopt such a policy for logs. They see computer logs as a possible source of embarrassing information to the Board who is charge, and as a matter of policy require our department to limit to the minimum time ANY logs we retain. We are specifically prohibited from logging ANY staff website access, and as such all our browsers have to be set to a history of 0 days.

I know some of our higher ranked staff use P2P software on their machines, and those same persons are the ones who have insisted on the limited log retension policy.

The "Sorry we dont have anything" letters are now sent out directly by an administrative assistant and IT is no longer involved. When I was in that loop, we used to get about 3 letters a week. Not involving Highly paid IT management staff has saved our agency lots of staff time that can be used for other projects closer to our mission.

I am not saying that this policy would work everywhere, but I could see its use at any department that mainly provides internet access such as Universities and ISP's.

If I had the budget of some of the largest ISP's such as Verizon that are used to look up and respond to these requests, it would be likely larger than my actual total budget.

This is why I am surprized that very few of these ISP's have not cut back on logging to save money on staff response.

An example of such is:

I am in the Middle District of Florida, and our largest cable company (Bright House Networks) does have a very limited retention time for these logs, thus by the time the RIAA asked for the information, a response of "We dont have anything" was sent. This is why we have not heard anything more from that 25 John Does case that was severed. Guess they decided that since there was no information from the 1st Doe they left on the original case nunber, no point is seeking the other 24. This is of course a win-win for both the customers and Bright House. If only more ISP's could be so enlightened.

Albert