In Atlantic Recording v. Raleigh, a case pending in St. Louis, Missouri, the RIAA has made a motion to compel discovery.
Plaintiffs' motion to compel discovery
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
Friday, November 28, 2008
RIAA files motion to compel discovery in St. Louis case, Atlantic Recording v. Raleigh
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5 comments:
To this man these are absurd requests. How do you identify and give current information for people you may not have had any contact with for 4 years? Up to 120 of them apparently. Who even knows the home addresses of roommates you shared rooms with in college? If anyone is likely to have that information it would be the university itself.
And what connection do these people even have to the defendant, except in the RIAA's mind? "Most likely to have information" sounds awful weak to this man for dragging these people into a civil suit.
And to top it off, brand, model, serial number, and MAC address of a computer from 4 years ago. This man hazards a guess that only 1 or 2 people out of every hundred would even know how to find this information – and that's provided that the computer was sitting right in front of them. Getting it from the manufacturer, which these plaintiffs claim is simple, may not be if it was bought at retail, or acquired secondhand. If this man were to buy a computer 4 years ago at say, Costco, could he go back now and demand that they provide the MAC address of that computer? This man sincerely doubts that, and eMachines were typically sold at discount retailers rather than direct – a fact plaintiffs should already reasonably be expected to know.
Computer hardware these days has rapidly become one of the most disposable of commodities with the average business computer being replaced every 3 years and students breaking, losing, having stolen, or simply replacing their hardware more often than that to stay current. You can't compel answers that don't exist.
To this man these plaintiffs are incapable of making "a good faith effort" at anything in these cases. And if the information simply does not exist in this man's opinion these plaintiffs are due Nothing(!) for filing this frivolous motion.
Again this man suspects that only screen names that can be contorted to identify a defendant are likely to have been pursued to this point. A word to the listening is to be aware of the fact that had this screen name been "123ABC" he doubts this case would have ever reached this point.
This man also must call attention to the following outrageous statement by these plaintiffs:
This individual had 1362 music files on her computer and was distributing them freely to the millions of people who use similar peer-to-peer networks.
Such inflammatory rhetoric is demonstrably false in all of the following regards: 1) No evidence that all the files detected were true music files (they weren't all downloaded). 2) No evidence that this individual was the one who had them on her computer (her computer has obviously never been examined). 3) It is impossible for any one person with an average college broadband connection to distribute anything at all to millions of other people through that small of a pipe. 4) No evidence that "distribution" ever happened at all to any unauthorized person anyway.
Clearly such statements are intended for judges ignorant of the true facts and cast a completely false light on this case. This man is left to speculate what would happen if this case was filed with a judge who truly did understand what was actually going on here?
{The Common Man Speaking}
Never have I read such unmitigated twaddle.
It is at this point that every single member of the student and faculty body should step forward and claim (rightly or wrongly - who is ever going prove the point?) that they were at some time present in the dormitories of the respective Does and expose this case (and all the others) for the travesty of justice that these cases have become .
Dave
The Common Man Speaking: You raise great points, which we hope she will say in reply. (Of course if she does have contact information, there's no burden on her to disclose it.)
Assuming a few people are subpoenad and say that in fact her computer was used by many other students, what will happen to the case? When Plaintiffs dismiss, can she recover lawyer fees? This would be another clear example of the RIAA knowingly falsely claiming that it "identified an individual".
Joe
I agree about the comments that this motion is totally unreasonable.
She did appear to give answers to the best of her ability, the problem is the Plaintiff does not feel the answers are detailed enough. However, Plaintiffs need to understand she is not a lawyer, and does not realize she needs to have a statement of reasonable inquiry and lack of data in her response to them. Instead, she just gave them what she knows. Going after her is NOT going to get them any more answers if she flat does not know them.
The events they are talking about took place in December, 2003. That is FIVE years ago. No way would I have any information on a computer that old, unless I happened to still possess it, and it still worked. Even Dell, who keeps some of the best sales records would not be able to cough up data such as a MAC address. They would not be able to provide ANY info unless you had the service tag (Serial) number of the unit, which for a 5 year old machine is unlikely to be available. In the case of eMachines, the serial might have been on the outer box, but might not be easily visible anywhere else, and who keeps the original packing?
Also, it appears that she is not technically aware enough to provide the answers such as a MAC address, as she very likely does not know where to look, or for that matter not even know WHAT a MAC address is. Maybe she thinks because it is not a Macintosh, it does not have a MAC address.
The only machine Defendant is able to identify is her current one. Of course the demand for information on this current machine is clearly a fishing trip and should not be permitted. (I dont think the eMachine line was sold five years ago.) The items on her current machine are NOT related to what was on the machine at the time in question, and it is wrong of them to ask for it, as it is NOT related to what they seek to prove, which is filesharing from December, 2003.
The ONLY computer data they should be entitled to discover is the machines that were in use at the ISP service address at the time in question. If that machine no longer exists, oh well, tough luck. Looks to me that they should have filed suit sooner. The machine is gone, and with it the only hope they had of linking the downloaded recordings to her.
I also hate to tell them this but the MAC address is not going to help them identify her. If the ISP has a MAC address in their logs, it is going to be that of the modem, NOT the computer so even if she had the MAC, they will not be able to use this information to tie the machine to her. Also, with such a large house I am guessing there was a router as well.
As for names, I had 8 roommates each of 4 years of college, some of them changing at each semester. I can only remember 2 last names, and maybe 1/2 of the first names. I could not even give a clue as to the name of the State most of them are from, let alone full addresses, telephones and email addresses, ages and names of employers.
I dont consider it unusual that she cannot remember this data. Maybe they had large rooms, or her "roommates" changed often, maybe even every couple of weeks. In this case, maybe she cannot not list who they were other than the general list of everyone in the house.
My guess as to how she provided the list of names is she got a yearbook/annual and provided the names from that source. They were the ones that asked fot those "residing with" her, clearly everyone that lived at that house "resided with" her and they should not complain of what is a complete response. Of course, the lack of the other information from 5 years ago she might never have had, even when she was living there. Why not get that information instead from the sorority house? Of course neither the house or the University is likely to retain any such data after graduation, or maybe they tried and they already told them they dont have such data.
They also asked her about her roommates for the 2003 year, but if this was her freshman year I can also understand. My own recall is less for the early years of college as well.
Of course 3 years from date of suit is again fishing. The ONLY time that they should be able to ask about is December, 2003. I wonder what kind of bad things they will have to say about her sorority sisters, when they get to ask them questions about what happened 5 years ago, and they give the almost certain answer of "I Don't Know".
I guess she needs to file another response in regard to these matters and explain more clearly that she has checked to the best of her ability, but she cannot recall or obtain the missing items they demand because she does NOT know that information, nor does she have the ability to find it.
I agree with the common man that if that was her, she should have chosen a random login name for the P2P login name. Since the computer is gone, this name is the ONLY thing that comes even close to showing it might have been her. Of course the other 120 persons might have been connected to the same network and used her name for their login. It would be a dirty trick, but entirely understandable in a college enviroment. She might have also sold it before the date in question and the new owner just might have used the P2P software with her data still on it. I used to sell/upgrade a lot when I was in College, so it could have happened. These 2 reasons can explain the close name found, without her being responsible. Who knows how many other defenses a good attorney and technologist can come up with in this case when it is investigated further by the Defense.
Albert
I think that the RIAA is asking for info that Jenna does not have. First of all, it is unlikely that she has the contact for all the people of her sorority house. I think that this should be subpoenaed from a different source such as sorority housing staff.
Next, as for computer information, I am not sure if RIAA's claim of sales reciepts can prove a computers mac address. First of all, this is not on a sales record. Next, even if it were this does not take into account the following:
* Sometimes network cards can be added or swapped if they are not onboard and are add-on PCI, PCMCIA, or USB based adapters.
* Beginner computer users may not know how to find the Mac Address of a network card.
* If a computer or network card is bought used, transferred from another place, or given to someone as a gift or donation, it is unlikely that the computers new owner will have the original sales records.
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