Friday, November 21, 2008

Oral argument set for December 9th in Cincinnati in Elektra Entertainment Group v. Licata

District Judge Herman J. Weber has granted the defendant's request for oral argument of the pending motions in Elektra Entertainment Group v. Licata, a Cincinnati "throwing in the towel" case.

This is the case in which (a) the defendant moved to dismiss the complaint for failure to state a claim and for attorneys fees, (b) the RIAA moved to dismiss its own complaint "without prejudice", and (c) the Magistrate Judge denied defendant's motions, and granted the RIAA's motion.

Defendant has filed papers objecting to the Magistrate Judge's recommendations, and the matter is now before Judge Weber.

The argument is open to the public, and will be held at:

Tuesday, December 9th
10:00 AM
Room 801
Potter Stewart US Court House
100 East Fifth St.
Cincinnati, Ohio 45202




Keywords: lawyer 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 portable music player

7 comments:

interested party said...

Ray,
I am just an interested party but I have to ask WHY these judges continue to side with the lobby groups? You have published so many cogent arguments from numerous defense teams that anyone would recognize the repeated and sleazy tactics of the RIAA et al. Is there an unknown variable somewhere in the equation? Does it involve the "greening" of the American judiciary? I just have to know!

Ray Beckerman said...

I believe the Magistrate Judge's decision is erroneous. Judges sometimes make mistakes. That's life. Hopefully, the judiciary is waking up to the huge fraud that has been perpetrated upon the courts and hopefully District Judge Weber will set this right.

Anonymous said...

This man seconds Interested Party's comments. This man would have said the same thing if IP hadn't beaten him to it. The arguments against the RIAA cases are clear and concise enough that even non-lawyers can understand their points, while the RIAA papers are often dense, complex, and obscure. Do judges favor complex, arcane arguments?

Perhaps they are akin to readers (and too often critics) who rave about books they don't understand - books that sometimes defy understanding - because they fear admitting their ignorance otherwise? The Emperor's New Clothes comes to mind in this reference. Surely a judge wouldn't want to be "caught out" by some obscure reference that they clearly missed that was resoundingly ruled in favor of on appeal.

Or maybe it's this quirk. The overly well-funded RIAA can continue this case as long as they wish. This man finds it hard to believe that any judge ever wishes to see his cases appealed with the possibility of being told he's wrong. That can't be good for one's future advancement as a judge. Is there perhaps an unconscious bias towards getting rid of the RIAA by overcompensating in their direction so as not to be hung out to dry afterwards?

And speaking of bias, consider big corporations and expensive lawyers versus some poor pro se defendant. Could one expect in many cases a judge to assume that the recording industry knows its own laws and regulations better than anyone else and be subtly inclined to believe their view of things?

This man feels that none of the above should apply to judges, but knows that they're human too. Sadly, the victims of this relentless campaign are also human, and not rich or secure.

{The Common Man Speaking}

Anonymous said...

interested party and {The Common Man Speaking}:

I think there are two conceptual misunderstandings afloat.

When I talk to my friends about these cases, they always ask, "Well who was it then? Was it a wife? Was it kids?" They always assume (a) a law was broken, (b) the IP was identified correctly, (c) it was someone in defendant's house, (d) defendant knows who it is, and (e) defendant is responsible. They never stop to question these assumptions, but if any one of the assumptions is wrong, the case is misguided.

Judges have placed value on "identified the an IP address controlled by Joe" or some such language as being reasonable grounds for a lawsuit, even though the RIAA catches many dolphins. The fact that judges generally aren't giving lawyer awards to dolphins probably means they don't precisely know what is meant by "being in control of an IP" or "identified an IP".

XYZZY

Z said...

XYZZY:

The issue about account ownership is a problem that really isn't easily addressed because the models used to explain an IP address to judges isn't close enough to the reality (ie: the old telephone number analogy) for them to truly understand what's going on.

I've said before that it would be better to say that you have no idea which member of the household would pick up that telephone when it rings, but that isn't close enough either. IP addresses change locations at random intervals, so the phone that rings when the number is dialed will be in a different house after some time has passed.

I propose a new model to present to a judge:
An IP address can be used to identify a person like a prepaid cell phone that's left on the table of the local MacDonald's. You can likely tell who bought it, and you know roughly who it called, but you have no idea who picked the thing up and dialed the number. It all depends on who got hungry, picked up an order of fries and sat at the table. You can open the cell's menu and see the call history, but that won't show you who punched the buttons.

Using that kind of model for the IP address makes a little more sense, even though it still isn't perfect. In fact, it shows that you shouldn't arrest the guy who bought the phone when some teenager finds it on a table and uses it to call his school with a bomb threat so he wouldn't have to go to classes after lunch.

Anonymous said...

Just wondering? In Elektra, plaintiff counsel claims connection to the defendants computer, and in LaFace V. Does 1-5they claim that they do not connect to the computer.

Elektra Entertainment Group v. Licata , page 3 of Plaintiffs Opposition to Defendants motion to dismiss, Plaintiffs counsel quotes "Once connected to the user’s computer, MediaSentry also seeks to determine what other files the individual is distributing to others for download."

While in LaFace v. Does 1-5, when presented with charges that it operated as a private investigator, plaintiffs defend MediaSentry by claiming that “MediaSentry did not access Defendant's computer" (See Doc. No. 28) “nor did it act like "thugs off the street . . Invading Defendant's premises" to "seize and carry off' her hard drive.. . Rather, MediaSentry simply observed and downloaded from the Internet information that Defendant chose to upload and make available to the public.“ (PLAINTIFFS' RESPONSE TO DEFENDANT DOE #5'S SUPPLEMENTARY MOTION TO QUASH SUBPOENA) … and …“MediaSentry receives information through cyberspace from a source whose location may be unknown at the time the information is transmitted". (PLAINTIFFS' RESPONSE TO DEFENDANT DOE #5'S AUGUST 13, 2008 LETTER TO THE COURT AND OBJECTION TO SUPPLEMENTAL AUTHORITY) Page 4.

Which might it be, do they connect to the computer or not?

Anonymous said...

To Anonymous:

"Which might it be, do they connect to the computer or not?"

That depends on what the RIAA needs to say to make its', in a lot of peoples' opinion and backed by current law fradulent, case.

We have already seen a lot of this "Janus Speak" already by the RIAA. I can only hope that other judges are waking up to it and will either revisit their decisions or at least be more aware of what is going on if they are assigned some more of these cases.