In Capitol Records v. Thomas, the plaintiffs have made a motion to preclude the defendants from objecting at the trial to the plaintiffs' copyright registration documents.
A similar motion was made and denied prior to Trial #1. See Statement of Brian Toder, Esq.
In addition, the parties have filed opposition papers with respect to the outstanding in limine motions.
The Judge scheduled a June 8th telephone conference regarding the RIAA's motion to preclude objections.
The in limine motions are scheduled for June 10th.
Plaintiffs' motion to preclude defendants from making objections at trial
Plaintiffs' opposition to defendant's motion to suppress MediaSentry materials
Notice of hearing scheduling plaintiffs' motion to preclude objections
Defendants' response to plaintiffs' motion to foreclose fair use defense
Defendant's response to plaintiffs' motion to preclude reference to cases
Defendant's response to plaintiffs' motion to exclude defendant's expert witness's testimony
[Ed. note. This is a very strange motion. I have a sneaking suspicion that the RIAA realizes it has a problem with its paperwork, something which went undetected last time around, but is unlikely to escape detection this time around, and Timothy Reynolds -- being an inexperienced lawyer -- thought this would be the best way to avoid the problem. Actually all he's succeeded in doing is to is to red flag the problem, because this motion has the chance of a snowball in Hell of being granted. -R.B.]
Commentary & discussion:
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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
17 comments:
I find it humorous that the RIAA is saying that "Defendant intends to put Plaintiffs to an unnecessary burden". Well the whole trail is an unnecessary burden on the defendant so perhaps you should just suck it up.
Since plaintiffs acknowledge in their proposed Jury Instruction 11 that they have to prove they have proper copyright registrations, why would defendant, then, not be allowed to object if they thought the offered *proof* was insufficient?
-xox
"The recording by a recipient of information sent to that recipient cannot be, and was not, a violation of the law and, as such, it should not be suppressed."
I guess Charles Nesson likes to hear that out of the mouth of the RIAA-Lawyers. ;-) As he was discussed with his students saying something along the line as "we are in a group meeting, i have my little black olympus running as always in those settings, a call comes in, am i supposed to switch the recording off because the caller invades our setting?" [not literally his words, just my remembering of the recordings content]
Oh, and one question Ray, RIAA lawyers seems to make much out of the fact what counsel for defendant in the first trial objected/stipulated to or not to [here: certificates of copyright ownership].
I thought this is a new trial, the proceedings start at zero again.
Is it your law that happenings at an earlier trial that was "canceled" does matter in a second one?
Or is it that RIAA lawyers are yet again try to "invent" their own rules/settings for the second trial without that their statements/claims have any serious basis in your law?
To this man's observation, a lot of RIAA snowballs have been surviving in Hell just fine in the mass litigation effort - too many of them due to Magistrate Judges with obvious freezers in their offices.
{The Common Man Speaking}
The RIAA's motion has the chance of a snowball in Hell of being granted. It is totally contrary to the law.
Apparently RIAA-Timothy realized he's going to have a problem with his copyright registrations, and thought this would be a clever way to get around it.
Of course I think he's accomplished the opposite, redflagging the problem for Kiwi and Company.
This man sees the following interesting admission in these documents:
It is undisputed that a user of KaZaA can download songs without sharing any songs in return. This is what MediaSentry claims it did.
This leads one to speculate that if a P2P filesharer employs anti-leeching technology, that MediaSentry would be unable to download from them, and hence not collect any evidence.
That leads to the further line of thought that because more sophisticated P2P users are more likely to employ such protections out of frustration with leechers who do not contribute in-kind to the filesharing community that only the most naive users will be the ones swept up in MediaSentry's illegal investigation methods and questionable evidence collection procedures.
The same line of reasoning applies to P2P file traders who require that you offer them files in order to download from them.
{The Common Man Speculating}
P.S.
I see my question is/was already answered by defendants lawyer(s)
I. A NEW TRIAL IS A NEW TRIAL
Defendant is not required to present the same case she presented at her first trial.
That is the point of a new trial: having engaged new counsel, having refined her strategy,
having seen what Plaintiffs presented and argued and what result they obtained in the first
trial, Defendant is free to change her strategy for this trial, raise objections not previously made, assert rights not previously asserted, and, in general, put on her case unshackled by
what happened at the earlier trial. See Ryan ex rel. Ryan v. McDonough Power
Equipment, Inc., 734 F.2d 385, 387 (8th Cir. 1984). Rule 59 authorizes a grant of new
trial “on all or some of the issues”; here, new trial was granted on the entire case. See
Docket No. 197 (order granting new trial).
Plaintiffs’ proposed exhibits according to the scheduling order for this trial, her objection
cannot be procedurally barred.
I guess next time I wait a bit longer for my questions since they might become obsolete. ;-)
--
A_F
Alternately, this could simply be a stalling tactic, presenting spurious notions with very little chance of success, in an attempt to drag on the trial as long as possible, in order to run the defendant out of her pocketbook.
"Your honor, don't let the defendant get away with making us prove that we own these copyrights. We have hundreds of cases going on right now. If you let her prevail on this issue, all the other defendants will use that as a precedent. Can you imagine the financial burden to us?
By the way, even though we got valid registrations a few years ago, our dog ate them. We know we should have gotten certified copies before we started trial, but you know how it is.
We wouldn't really NEED certified copies, if it weren't for these pesky file sharers who make us keep suing them, so whether we win or lose, please make her pay for the proof -- if she hadn't made us sue her, we wouldn't need it, and after this is over, those copies will be useless to us."
To follow after Alter_Fritz:
"The recording by a recipient of information sent to that recipient cannot be, and was not, a violation of the law and, as such, it should not be suppressed." -Tim Reynolds
So recording information you receive isn't illegal... Really? Although presumably he didn't mean it that way, by his statement, downloading files off of KaZaA would qualify!
XYZZY
@ The Common Man Speaking
"That leads to the further line of thought that because more sophisticated P2P users are more likely to employ such protections out of frustration with leechers who do not contribute in-kind to the filesharing community that only the most naive users will be the ones swept up in MediaSentry's illegal investigation methods and questionable evidence collection procedures.
The same line of reasoning applies to P2P file traders who require that you offer them files in order to download from them."
Absolutely right, and as one of the non-naive file-sharers I feel the need to assassinate all the naivety that I find on this blog. I think it's better that bad ideas are shot down here, by me, rather than in court with some poor sucker's life-savings on the line.
For the level of naivety required look at the logs presented in any case on this blog, and realize that the naive users have to have these files in their shared folder, computer on and file-sharing software running for long enough for MediaSentry to download every single file in the log.
So it is only the people who do not research how their file-sharing software works that are getting caught. You can be really stupid and still sweep out your shared folder regularly enough that MediaSentry cannot get a complete download.
Said really stupid person could be inquisitive and self educated, or they could have been struck by a holy cluebat wielded by someone with clue. However, given they know, they have clue and therefore the qualification to wield the holy cluebat.
A couple of comments to the Common Man.
If the default P2P client refused to allow more than 10 seconds or so of downloads, unless there are not enough copies on the network, it would prevent the operation of their hacked client and they would NEVER be able to get evidence regardless of the IQ of the user.
Of course, even if they did get the 10 second clip, you could always claim it was a MediaDecoy clip.....
Albert
Anonymous, at June 6, 2009 10:38:00 AM EDT wrote:
"[...]as one of the non-naive file-sharers [...]"
Don't forget that most of the cases we read about here are years old (assumed it is not a wrong positive by the "investigators" in that dragnet fishing) based on a behavior by schoolkids that simply not thought that it is immoral/illegal what they did. Remember that a few years ago evil kazza [the company that paid the RIAA one hundred million dollars in a settlement for their behavior!] advertised big and wide with "free downloads" and all this stuff. Why should an innocent schoolkid with moral values learned not to shoplift in a shop but without a degree in copyright law should have known any better a few years ago?
I'm willing to bet that even you (if you have actually done infringing acts at all in the timeframes mostly at hand in those cases [2003 to ~2007] and are not just a troll who wants to abuse this blogs comment section) anonymous "expert" copyrightinfringer has used a few years ago software to share with settings that would have made it easy for those "investigators" to get a record on you. (No need to be ashamed of it!)
If you are actually old enough to be a user of the "first generations" of sharing software you should know that this feature to browse the treasure of like minded persons was exactly what made those software tools so valuable to explore new music that would probably fit to your own musical taste. THAT was the IMO great thingy about this software. That it was also the feature that made it easy for the "investigators" to get the most unsuspecting non guilty feeling persons out there in their fishing drag net was the negative side effect.
"[...]computer on and file-sharing software running for long enough for MediaSentry to download every single file in the log.""
You seems to not have even read carefully (or understood) the "evidence" so far! While the RIAA still claims it is highly secret stuff what the "investigators" did, what the record shows so far is that they just download one or 2 hands full of songs from a "victim". They do not download those 4-5-6 or even more hundred songs that those "early adopter" Kazza [and clones] users had in their share. That would not be practical given the average uploadline of those american households but that is a factor that even the RIAA-lawyers neglect to mention and instead use hyperbolism about distributing millions of copies to millions of people by this one poor schoolkid).
"So it is only the people who do not research how their file-sharing software works that are getting caught."
Why should they had to? As pointed out above, back then the evil software companies like Kazza advertised big and wide all over the Net that it was OK to use the software, that there was nothing illegal about the use, so why should one innocent schoolkid care how software works and what it does if there is nothing dangerous associated with it?
"[...]that MediaSentry cannot get a complete download."
Back in the days at issue cleaning out the share folder was a) nothing any normal computer user would do. b) would be contrary to the idea and concept behind those types of software. and c) does it absolutely not matter if MS got a complete copy since RIAA label lawyers send you a letter already for "filenames" (the exhibit B "recordings" not for infringing copies they got from a victim!
In short, your post is nonsense, and has next to nothing to do with the topic of this blog which is NOT to educate how to do copyrightinfringements without getting caught, but to show that the "catching of infringers" was borderline to incompetence and that Sony-BMG, EMI, VIRGIN and WARNER are abusing the courts instead of having adopted to the p2p phenomenon in the beginning years of it.
Anonymous June 6, 2009 10:38:00 AM EDT:
1. Nobody here wants to teach you how to illegally download music without getting caught.
2. It's overly simplistic, and often begging the question, to say that Defendants in these cases should have been smart enough not to use KaZaA. Some Defendants didn't use computers or KaZaA, and many who did may not have broken the law for various reasons.
3. Sign your posts, please.
XYZZY
The registration date is a very dangerous issue for the RIAA.
If the jury finds that defendant was indeed using an "online media distribution system" to infringe plaintiffs' 24 copyrighted song files, plaintiffs can recover actual damages only -- and no statutory damages -- as to any song whose copyright registration effective date comes later than the date defendant began using that "online media distribution system".
E.g., if defendant is found to have started using Kazaa in 2003, and 20 of the 24 song files have copyright effective registration dates of 2004 or later, then the RIAA can recover statutory damages on only 4 of the songs.
See why they're nervous?
"THAT was the IMO great thingy about this software."
Agreed. To authenicate my age I can say that I read the shared folders of many WinMX users and in quite a few found that the shared directory had a boilerplate saying that neither feds, nor persons working for the recording industry were permitted to enter / download.
"(No need to be ashamed of it!)"
I'm not ashamed of my dedication to RTFM and configure my software myself. I'll keep poorly maintained software on my computer right after I have died from poorly maintained bearings on my skateboard. Car analogies are popular on slashdot, if the brakes are not maintained on a car you own, you can't prove the state of the brakes is not your fault, even if you know sweet FA about brake maintenance. AFAIK bad brakes are only illegal if your driving with them though.
"Why should they had to?"
Have you ever seen a nature documentary where the african hunting dogs catch the gazelles that run the fastest?
"Nobody here wants to teach you how to illegally download music without getting caught."
But if you can learn how to learn here it is a good thing. Otherwise, the plan is to fight the old system without learning the new system that is rendering the old system obsolete. Given that it is use of the new system that people are being sued for, that plan would be stupid.
"[2003 to ~2007] "
By that time i was getting out of the game.
"to show that the "catching of infringers" was borderline to incompetence"
Ray outlines the incompetence of their lawyers. I believe the technical staff are given orders by the same incompetent senior management that gives the lawyers their orders. From my experience, competent workers do not like to work for incompetent bosses for long.
"Some Defendants didn't use computers or KaZaA, and many who did may not have broken the law for various reasons."
So what chain of evidence lead to them being accused? The RIAA assume that every ISP's address records are both truthful and accurate enough to be worth getting the court order to obtain, then submit as God's honest truth to the next court. Some ISP records may be inaccurate. Look to the accuracy of the ISP records if your client has never had an internet connection and has still been accused. You may well find someone in the company to testify about their companies methods for address verification of customers, and their assumed requirements for such.
Dokuro
@ray
"It is undisputed that a user of KaZaA can download songs without sharing any songs in return. This is what MediaSentry claims it did."
Yeah, so, er. What in exhibit 11 is confusing about their request?
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