Friday, April 27, 2007

Answer, Counterclaims, and Discovery Notices Served in Elektra v. Torres

The defendant's answer, counterclaim, and discovery notices have been served in a new contested case in Brooklyn, Elektra v. Torres.

Answer and Counterclaims*
Answer and Counterclaims, Exhibit A (Amicus Brief filed by ACLU, Public Citizen, EFF, AALL, and ACLU Foundation of Oklahoma in Capitol v. Foster)*
Defendant's Initial Disclosures*
Defendant's First Set of Interrogatories to Plaintiffs*
Defendant's First Request for Production of Documents and Things*
Defendant's Notice to Take Deposition of Elektra Entertainment*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


AMD FanBoi said...

28. Plaintiffs’ practice of commencing actions against people, solely because they have paid for an internet access account, in order to coerce a settlement, is akin to extortion.

One might add: or to force innocent defendants to perform plaintiffs investigative work in an attempt to identify actual infringers, for no fee or compensation, while incurring unrebated legal charges.


4. Define the term “online media distribution system” and set forth any legal dictionary, statute, or other source, in any, for said definition.

Hooray! About time someone has demanded that they justify the use of their totally invented, prejudicial term for what everyone else in the world knows as Peer-to-peer (P2P) Filesharing.


While you're asking them to disclose everything else, you might also include asking them to disclose a full list of exactly what forensic evidence on a computer hard drive would be considered proof of the allegations make in the initial complaint. Include any items and/or indications that would be utilized to claim that a hard drive was either illegally reloaded with an operating system after the fact, did or did not use a wireless network, or anything else that would lead you to claim that you were given the incorrect hard drive for forensic examination.

It would be nice to know how to then limit their expert to only looking for these exact items, and claim anything else they "fish up" and attempt to enter were not properly disclosed. Note that such a list as this will likely take a very long time to draw up properly, and might be offered to the technical community at large afterwards for opinions on the validity of the data they intend to use.


By the way, if they actually provide a list of software used by Media Sentry, you might well find out that MS used such software, or hacked or reverse-engineered versions of said software in violation of the copyright and/or User License included with such software. Even P2P software has terms of agreement with it, sometimes including not using it to infringe copyrights -- which would be exactly what MS was doing the moment the downloaded anything. But if they're used the programs improperly, that would be an interesting fact to point out.

And you can always ask for the Media Sentry/RIAA contract once again. What they admit they CAN'T detect is worth knowing, if they are then claiming that they detected EXACTLY THAT in regards to your client. After all, that shows weaknesses and holes in their investigative methods, which I'd expect any defense lawyer to demand to know.

Joel said...


Brilliant. Well, let's not just answer this one let's just leap into discovery with some fun disclosures, interrogatories, requests for production and oh yes, why not a deposition.

Ryan said...

I would like to commend Ty on again showing adaptibility. Just last week it was mentioned that the defence in one of these cases should ask for the raw data and behold, the request has been delivered.

"4. All documents concerning any investigatoin of plainitiffs' claim against defendant, including, but not limited to, contacts, memos, emails, digital files, printouts, reports, screen shots, any notes taken whether on paper or electronicallly, any documents made by MediaSentry, SafeNet, Inc. or any orther monitoring or data collection used in connection with this matter, electronically stored log files and data, full packet log in its digital form, screenshots, data files or settings captured from the defendant's alleged computer, and any and all other documents whatsoever."
*bold added

Interested Observer said...

1-Has anyone considered that the record companies may be using a third party agent to distribute songs to radio stations and such agents may be using P2P to distribute their songs. By restricting your requests to naming "employees" allows them to quibble by saying that their employees do not use P2P. "Plausible Deniability".

2-Are any of the plaintiffs affiliated with the plaintiffs in Texas Court Order denying the joining of "Does" in the initial ex parte subpoena. If so, and the initial subpoena in this case, if it contains multiple "Does" and the defendant is not the first one, could be said to be obtained in violation of a court order and thus "tainted" and inadmissable.

Any comments?

H said...

Everybody should fight the settlement offer.

The RIAA can handle 700 settlements a month, but if each one went to court, they would not be able to deal with all of the cases.

If each case lasts 3 years, they will easily end up with 25,000 cases in court at once. The legal fees to fight these cases would be over a billion dollars (at $40,000 a case).

recordjackethistorian said...

Very, Very nice list of documents, documentation, descriptions and depositions! That should keep them scrambling to adhere to the letter of your requests. Log-files on any computer system sometimes seem to self-replicate, of course they don't. Computers are very literal machines. They log everything, most large systems log every single event which takes place. Even A single mouse click is an event which can be logged. If printed out this can be a substantial amount of paper, hopefully you can obtain them in digital format, so you can use a computer language like PERL (Practical Extraction and Report Language) to parse and analyze the data.

Any system administrator worth their salt, keeps logs. In the event of a malfunction or problem log-files are really the only way they have of know what exactly went wrong, even those are sometimes only hints. You may know that your computer program crashed at 8:57:05 AM but the event that was fatal didn't' occur at that time... it occurred sometime before that .. so you still pick through the logs to find what the fatal error was. Fun huh?

If they comply with these requests we will soon know much more about Media Sentry and the hardware it runs on .. as well as its real capabilities.

a.k.a. Record Jacket Historian

Sardon said...

I'm impressed by the the range of discovery requested by Ty but I'm surprised that he didn't ask for all documents to be provided in their original un-altered form. Generally, I would think that in discovery you want to give all of your documents in paper form but you want the opposition to give you all of their documents in their original electronic form, with all of their original creation and modification dates and all of their meta data intact (like "author," and "track changes.")

I also hope that Ty will demand un-redacted IP logs that show Media Sentry's IP address. You can't properly investigate their claims unless they provide the IP address they claim to have connected from. It's like MS submitting a photo they say is proof of infringement but refusing to say even what country it was taken in. Or saying that a phone call by them to your client is proof of infringement but refusing to say what city, state or country they made that call from. Redacting their IP is highly predudical.

Igor said...

I agree with Sardon.

One of the reasons you want the digital copies is so you can detect mistakes like: