In Atlantic Recording v. Raleigh, the RIAA has filed a reply memo in support of its motion to compel defendant to provide further information, arguing that defendant has a duty to investigate.
Plaintiffs' reply memo in support of motion to compel
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, December 12, 2008
RIAA files reply papers in Atlantic Recording v. Raleigh, argues defendant had duty to investigate
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8 comments:
First these plaintiffs utilize illegal investigators (MediaSentry).
Now they wish to require people who are not investigators at all to perform their investigations for them.
This man asks, will this ever end?
{The Common Man Speaking}
How absurd! The RIAA have completely lost it this time. I lived in residence in my third year of university, but although I shared a quad with 6 other guys, I barely knew their last names. I had no input into who I shared a space with. We were not close friends and we did not keep in touch after we left the residence. Faced with a subpoena like this one I could not give any more information that what the defendant has done. That she doesn't have this information doesn't surprise me in the least. Now, even though I am more tech savvy that the defendant, I have no idea what the MAC address of my computers are, nor even which network cards were in which computer when. I have no idea where most of the sales invoices are for them either.
Neither myself nor the defendant are businesses who are under legal obligation to keep receipts and books for a certain number of years following. I keep no paper receipts i am not legally required to keep. That means none of my computer receipts have been kept.
In my opinion, the plaintiffs complaint is simply disingenuous, and I'm being generous with that comment to.
Further, it seems to me that the RIAA simply want the defendant to do investigative work for them which they are forbidden to do themselves because of privacy laws. How can they expect the courts to order the defendant to skirt the law for them? But then what do I know, since I am not a lawyer like they claim to be!
Cheers,
DF
I agree with DF,
The ONLY mistake she might have made is not telling them in enough detail what efforts she has made to respond to their request, and why she cannot give them further details.
As I have stated before, I am guessing she gave them the list of the names from some some directory source, very likely the web site they cite in their brief. Since she did not tell them the source, they seem to be claiming that she gave this 119 name list from memory, but cannot remember ANY email, phone, address or other contact information for any of these people.
Actually, I think it quite likely the source she used to reply with the names did NOT contain any other information other than the names. Thus, she could not provide it.
The Plaintiffs make quite a big deal about her Spacebook page having her connected as a "friend". They do not seem to get that "friend" is the minimum level of connectivity on that site, and the mere listing of "friend" on that site does not mean she knows ANY of the identification information they requested. I did not see "Spacebook name" on the list of requested information. Also, if they "know" some of these Spacebook people are among the people whose identity they seek, why do they issue a subpoena to Spacebook? The identify information is likely private, and not available to her on the site. Also, just because they identify on Spacebook as belonging to that house, does not mean they were resident at the house at the time frame in question. They might belong to an earlier or later class. These Spacebook friends may in fact NOT be included in the list of names she provided at all, and she might have approved their inclusion as a friend without checking they were in fact members of her class.
As for the computer, lack of possesion (or specifically possession of the exact network card that was used during the time frame in question) makes it impossible for her to obtain the information they desire from it. This is especially true of the MAC address. Even Companies like Dell that maintain detailed inventory records do not maintain records of this data, so their thinking that she can just whip out a sales record for a FIVE YEAR OLD computer and it will include her MAC address is absurd. Actually expecting her to still have a sales record for a 5 year old machine is itself unreasonable.
In any case, if they think this piece of information even if they had it will tie her to the downloads is clearly false. The MAC address of the DSL or Cable Modem is the item that will appear in the ISP database, NOT a workstation MAC address.
Since this is a house of 119 residents, it is unlikely that a router was not used, making it even harder to tie things to her specific machine. Also, it appears that all 119 residents had access to the machine in any case, so I wonder how they intend even with detailed records of downloads from a single machine, that it was the Defendant, and not one of the other 119 people in that house that was controling the computer at the date/time in question?
The final remaining question I state is: Even if they find the people they seek, and depose them, what makes them think they will have ANY memory of these 5 year old events. Or maybe they might simply take the 5th, as everyone had access to that machine.
Albert
Reading this reminds me, and the public in general, of stories written about Salem and of those who hunted for witches.
As long as someone...anyone for that matter...was made to confess, those who believed their crusade was "just", felt their purpose in life was fulfilled.
History is being repeated once again by those who bring such injustice on the common person. I pray those who are funding the RIAA come to their senses before they destroy the very industry they seek to protect.
Oldphart in Kansas
The RIAA obsession with MAC addresses
has no technical bearing.
All recent ethernet and wifi chips allow the MAC address to be changed in software. See macchanger
Thus a MAC address seen on a network might not come from a chip with this nominal MAC address and thus does not constitute an evidence.
The defendant not being technically savvy to change their MAC address is irrelevant, because a third party that use the connection without authorization can spoof the defendant MAC address (e.g. to escape detection).
While I hate to say it, this is probably the first RIAA motion I've seen to date that seems to have a fair amount of validity.
Obviously she has met the required burden for Interrogatory 3 and harping on her lack of knowledge about a system she no longer owns is a tad rediculous.
However based solely on the information within the motions to compel it does seem to have fairly solid ground to complain that she is unreasonably obstructing discovery. Presumably she was not able to recite all 119 women who shared the sorority house from memory, providing any related contact information from the source she received the list or simply stating that there was no associated contact info would have met her good faith obligations. As for the roommates issue, even the RIAA lawyers spot the pedantic nature of the refusal to answer while her lawyer acknowledges full awareness of what had been intended.
Simply because the RIAA lawyers behave in a unethical, childish, and occasionally illegal manner does not justify cheering on defendant lawyers when they behave in the same way.
The entire issue regarding the RIAA lawsuit/extortion scheme is that they are abusing the legal system, the disparity of power, and some damned shaky legal arguments to push their agenda. In this one particular case, other than the John Doe discovery nonsense, the RIAA do not appear to be acting in an unresponsible manner. Truthfully they have a fairly strong case (if one presumes the making available argument actually holds water) here.
I don't think that we should automatically throw our support behind anyone who is involved in lawsuits with the RIAA without regard to the merits of the actual case. Doing so both implicitly condones copyright infringement (because some of the people who have been sued WERE sharing files) and weakens the overall argument that the real issue is the manner in which the RIAA has chosen to aggressively and recklessly pursue these cases and abuse the legal system.
-Dan
Dear Anonymous Dan
I disagree with you on just about everything you said.
I don't have enough hours to go into each way I disagree with you.
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