Monday, September 10, 2007

RIAA Abandons "Making Available" in Amended Complaint in Rodriguez case

Here are some further developments relating to Interscope v. Rodriguez, the San Diego, California, default judgment case in which the RIAA's complaint was dismissed for failure to state a claim.

Interscope v. Rodriguez
On August 23, 2007, the RIAA filed an amended complaint. Interestingly, the amended complaint (a) leaves out the phrase "making available", (b) adds a phrase that plaintiffs "identified an individual" distributing files, even though their expert witness's deposition testimony in UMG v. Lindor specifically negated any claim that "an individual" was detected, and (c) adds a curious phrase that the defendant was "the individual responsible for that IP address at that date and time", a phrase which would be of dubious significance in a copyright infringement context.
On August 30, 2007, the case was reassigned to Judge Hayes, due to Judge Brewster's impending retirement.
Amended Complaint*
August 30, 2007, Order of Reassignment*

Elektra v. Barker
Ms. Barker's attorneys wrote to Judge Karas, before whom is pending Ms. Barker's own motion to dismiss complaint, notifying him about the August 17, 2007, decision in Rodriguez.
September 8, 2007, Letter of Ray Beckerman to Hon. Kenneth M. Karas Enclosing Copy of Interscope v. Rodriguez*

Warner v. Cassin
Ms. Cassin's attorneys wrote to Judge Robinson, before whom is pending Ms. Cassin's own motion to dismiss complaint, notifying him about the August 17, 2007, decision in Rodriguez.
September 8, 2007, Letter of Ray Beckerman to Hon. Stephen C. Robinson Enclosing Copy of Interscope v. Rodriguez*

* Document published online at Internet Law & Regulation

Commentary & discussion:

Ars Technica (Heading: "A subtle change in strategy") ("RIAA tries to negate blunder") ("RIAA victims' new weapon")

Keywords: digital copyright online 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


AMD FanBoi said...

From the amended complaint:

12. Users of P2P networks who distribute files over a network can be identified by using Internet Protocol ("IP") addresses because the unique IP address of the computer offering the files for distribution can be captured by another user during a search or a file transfer.

This is so wrong for so many reasons:

First, USERS cannot be identified this way at all. Users don't have IP addresses. Computers have IP addresses.

Second, when a computer is connected through a NATting (Network Address Translation) router ANYWHERE along the route between the two connected computers, the originating IP address is changed.

Third, MAC addresses aren't transmitted, and therefore cannot be used for identification.

Fourth, any Proxy computer that might exist along the route will change the originating IP address in a manner undetectable to the computer at the far end.

Fifth, file directory share lists are not always generated by the computer containing the files in all P2P systems. Superpeers may cache directory listings for better response in the system overall, and return directories of files that have never existed on their machines.

Sixth, files listed in a file directory may not actually be available. Ghost Files are a known phenomena in some, if not many, P2P systems.

Seventh, a list of files does not identify any specific user, does not indicate that the files contain what their names may imply, and does not provide proof that any of these files were ever distributed illegally to any other user!

None of this should be enough to drag any American citizen into court. Nor is there any proffered evidence of continuing infringement. In fact, continuing infringement doesn't make sense, since any user receiving warning of a lawsuit is likely to have stopped all such activities immediately. If anything, this makes it even more likely that the person being sued is either not the actual infringer, or totally unaware that their own computer is actually offering up a share directory of files.

It is also unlikely that ANYBODY has "continuously" shared files, since most computers are shut off when not in use. That is, unless "continuously" means something different legally than it does in the whole rest of the civilized world.

Plaintiffs believe that such acts of infringement are ongoing. Please state the reason AND EVIDENCE for such a belief.

Exhibit A: Someone sure has lousy taste in music, for an adult!

Matt Fitzpatrick said...

Judge Brewster's order of dismissal without prejudice was crystal clear on what caused the complaint to be insufficient.

"Plaintiffs ... must present at least some facts to show the plausibility of their allegations.... However, other than the bare conclusory statement ... Plaintiffs have presented no facts that would indicate that this allegation is anything more than speculation. The complaint is simply a boilerplate listing ... without any facts pertaining specifically to the instant Defendant." (Emphasis is mine.)

Well, the RIAA got the message. The amended complaint definitely adds some facty looking assertions.

Still, it's anyone's guess how far bad science (IP addresses as traceable as DNA) and tricky wording (implying two distinct "individuals" are both Yolanda Rodriguez) will go.

raybeckerman said...

AMD, I read your analysis of paragraph 12 and I think your analysis is flawed due to one major, underlying problem with your whole approach.

You are obsessed with the facts.

You can't possibly understand the RIAA's way of looking at things if you're going to look at it through blinders imposed by your non-creative, reality-based, adherence to actual facts.

You need to lighten up, let yourself go, and start thinking (a) science fiction and (b) free-form concepts of copyright law created on the go, as the need arises, to fit the situation.

I hate to say it but RIAA Richard is much more creative than you are. You've got to think out of the box, like he does, if you want to lose default judgment applications.

AMD FanBoi said...


I admit to my shortcomings. I, obviously, would never make a good lawyer.

In addition to SF and free-form concepts, can I add Multiculturalism and Political Correctness to my analysis in the future?

Or maybe I can go back to Dick and Jane analysis techniques:

Jane: Music files are being shared on the Internet, and we're losing billions. There can be no other cause for our losses, and it all makes me want to cry.

Big Dick: Somebody must pay for this!

Jane: But who?

Big Dick: Anybody we can find!

Jane: But what if they're not the guilty one?

Big Dick: And this matters to you...why?

raybeckerman said...

Dear AMD

Than anti-lawyer dig clearly violated comment policy #7, but I'll let it go this time due to your outstanding service to this blog in the past. In the future, though, please try to confine your anti-lawyer attacks to the RIAA lawyers rather than the entire profession.

However, your obsession with facts cannot be so readily forgiven. Please try to see things from RIAA Richard's perspective. If he were limited to (a) the facts and (b) the law he would be out of work.

Alter_Fritz said...

AMD: while your points are correct, your long explainations are (as I assume without actually knowning any US Judge personly) much to complicated for the average, non-computer geeky ones among them.
to explain to those "non-geeky"-judges, that the RIAA lawyers do not tell the truth in their boilerplate complains (no matter if they amend an IP address and a timestamp or not!) when they claim that they "identified an individual", you must use less technical examples and descriptions:
For example with a comic strip;

Hope that helps :-)

AMD FanBoi said...

You mean there are non-RIAA lawyers also named Richard?

Alter_Fritz said...

Technical question:
"On August 23, 2007, the RIAA filed an amended complaint.
Trusting my favorite online help when in doubt about some vocabulary ( ) As I understand that, what RIAA did here was what they also routinely do in those "first the parents then the children" cases to safe themself some money from filing fees; they amend complaints they paid one times a fee for.

Me now wonders: If I understand it correctly the judge dismissed the case they paid the $350 for.

Is it proceduraly ok that they allegedly just amend their (dismissed) complaint instead of filing a real new case with paying filing fees for a new case too?

raybeckerman said...

same case, no new fee...

raybeckerman said...

I rejected your comment, this is a default judgment case, they're not going for attorneys fees.

Unknown said...

Is it my imagination, or is there a new emphasis on the concept of 'copying' (i.e., authorization to copy) in this pleading? Know that these points have probably been made time and time again, but I just have to raise them.

'Under the Copyright Act a copyright owner has “exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; . . . ;(3) to distribute copies or phonorecords of the copyrighted work to the public . . . .”'

The Copyright Act CLEARLY defines 'copies' as material objects, just as it does for 'phonorecords'. To reproduce something entails making a complete and faithful recreation of that material object. A digital image embodied in a computer file that, through the use of computer software, can be made to replicate to varying degrees and quality the aural sound of a phonorecord is NOT a reproduction, by definition, as it is NOT a material object. The act further states that 'The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 IS LIMITED to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording.' Therefore, the entirety of assertions associated with 'authorization to copy' are baseless. It goes without saying that, since they are not material objects in the sense of what the Copyright Act has defined copies and phonorecords to be, the notion of distribution of 'non-material objects' is meaningless.

'Today, copyright infringers use various online media distribution systems to download (reproduce) and unlawfully disseminate (distribute) to others billions of perfect digital copies of Plaintiffs’ copyrighted sound recordings each month.'

Ignoring the unwarranted linkage of 'downloading' with 'reproduction' or the over-dramatic reference to unsubstantiated 'billions', I would like to comment on 'perfect digital copies'. The only thing that could even closely be defined to be a 'perfect' copy of the digital audio that is 'stored' on a CD is a .wav file that retains the full PCM encoding of the original digital audio. Anything less than that is NOT a 'perfect digital copy'. NO MP3 file is a perfect copy - it is the result of a 'lossy' conversion and you cannot obtain the original .wav file through reconversion. [There are lossless formats in use (e.g., .flac, .mp4, .ape) that allow for faithful reconversion back to the .wav form of the digital audio, but none of the alleged infringers were sharing these types of files; they were all MP3 encoded files. At best, the digital files that were alleged to have been shared would have to be viewed as derivative works ('derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or QUALITY').

OK, said my piece and will go back to lurking.

Art said...

It's unfortunate that this is a default judgement case. Since the defendant never showed, the plaintiffs seemingly can say whatever they want without a risk of a reasoned rebuttal.

It's also unfortunate that the first judge is retiring. These cases need the sanity and justice he showed in the original dismissal.