Thursday, January 10, 2008

Motion by Ohio State University students, "John Does 5 and 9", now fully briefed

The motion of Ohio State University students "John Does 5 and 9", in Arista v. Does 1-9, in Columbus, Ohio, to dismiss the complaint, vacate ex parte order, and quash subpoena, is now fully briefed, the RIAA having filed its opposition memo and the defendants having filed their reply memo.

Discovery has been stayed by the Court pending determination of the motions made by John Does 5 and 9, and by John Doe number 1.

RIAA Opposition Memo*
Defendants' Reply Memo*

* Document published online at Internet Law & Regulation

Keywords: 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


Anonymous said...

From the RIAA brief:

Defendant has filed an omnibus motion in an effort to avoid being held responsible for massive copyright infringement that occurred on The Ohio State University network.

Actually, the Defendants have filed a motion to attempt to avoid being steamrollered by the RIAA who are attempting to extort their cooperation without actual evidence through the threat of massive legal fees and unconstitutional statutory damage awards, as to who the actual infringer(s) are, and who are attempting to extend and misuse the legal system to their own business ends by skirting the legal protections due Defendants.

Plaintiffs in numerous related cases…

Here we go again. Shouldn't that read: Plaintiffs in numerous unopposed cases because we expressly excluded any possible opposition from all possible proceedings at this point using judicial maneuvers normally intended for entirely different circumstances than these…

Third, joinder imposes the minimum burden on the parties to this litigation…

Should read: Third, joinder imposes the minimum burden on the Plaintiffs, while requiring all the Doe's separate attorneys to somehow schedule their attendance at important hearings in this single case at the same time, despite each Defense attorney's own private schedule.

Defendant is a significant infringer who was caught distributing from his computer as many as 500 audio files…

Nobody was caught. You have an IP address and a time-stamp. This does not uniquely identify either a computer, or the person sitting at that computer. YOU HAVE NOTHING! (apologies to Jim Cramer.) From this you extrapolate that you have identified an exact person, and an exact computer, and LIE TO THE COURT when you know this isn't true.

Thus, the University can match the IP address, date, and time with the computer that was using the IP address when Plaintiffs observed the infringement…

Provided the time is correct, and your clock matches the University's clocks, and you got the IP address correct, then you can possibly identify the device (computer, cell phone, router, other IP enabled hardware) that was seen to the Internet at that moment. Behind a simple wireless router costing less than $100 could be hundreds of other computers, each with its own owner sitting at it. And we're not even talking about proxies, hijacked computers, and other facts of life on the Internet at the college level.

So much for the RIAA's "facts".

From the Defendant's concise, easy to understand, reply:

…and it is not what this Court should presently entertain when abuse and sham are readily apparent.

Boy is that the truth! To file a case you have no intent to prosecute through, just to trick the courts into forcing others to hand over private, privileged information, should be considered outright abuse of the legal system. Either you have the evidence sufficient to sue these Defendants now, or you don't. And if you don't, this case should be halted at this very moment – especially given the RIAA's track record of suing the wrong people, and not paying innocent citizens legal fees for these mistakes! There are outright criminal organizations (think your local bookie) who are nicer than the RIAA.

Btw, I love the extra long footnote of cases where the RIAA as done exactly what the Defense accuses them of doing in these cases. I didn't count to see if it is at least a hundred, if not hundreds, but it's impressive nonetheless.

When ruling on a motion to dismiss for failure to state a claim upon which relief could be granted, a court must look to the complaint to determine whether it satisfies the threshold pleading requirements under Fed. R. Civ. P. (8)(a). This Rule states that a complaint must contain at a minimum a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Since the RIAA doesn't allege, and can't prove, actual distribution as required by current copyright law, nor prove that any copies of their works detected are "illegal copies" simply by the fact that they reside on a computer storage device, they are unable to state any claim under which relief can be granted. What is so hard to understand about this?

And these shortcomings in the pleadings are not cured by Plaintiffs’ reminder to the Court of “billion” dollar losses through the exchange of copyrighted music via computers. The 9 Doe student Defendants here have caused no such loss to Plaintiffs…

I do hope that the Court takes significant notice of this fact. The RIAA blusters completely irrelevantly about how much their supposed losses are to file sharers. They project (speculate) on what their sales should be, and then accuse file sharers of being the sole cause of why those numbers aren't being met any longer. To use the bank robbery example, it would be like going to trial in a bank robbery case, and having the Prosecution (bank robbery is a criminal case) make a big deal over how much money was taken as a whole in all the bank robberies of the last several years, and that the jury should punish the current Defendant for that entire amount. I doubt that any competent Court would allow such testimony to be entered into the record or considered by the jury, and this judge should feel the same about that matter here.

In fact, this judge should consider the very tactics of argument used by the RIAA as deceptive, not applicable, designed to intentionally confuse the issue, not relevant to these Defendants, and attestation to the fact that the RIAA is intentionally trying to obfuscate the issue because they have no case, no evidence, and no competent court would entertain their wild theories of this being a proper way to protect their copyrights.

For whatever reason, Ohio State here has not challenged Plaintiffs’ subpoena here under FERPA.

Ohio State University should be sued by these Does for being negligent in their duties to protect their student's privacy under FERPA. Blind obedience to every subpoena received is certainly not what is intended by FERPA.

and the Court should take necessary action against them [Plaintiffs] to prevent future abuse.

I don't know what action that could possibly be, but it sounds good.


Art said...

Plaintiffs claim the only basis they need for the subpoena is a mere allegation of infringement by the defendant. They claim "the only entity that can identify Defendant is the University".

The truth is that they are asking the University to make a judgement call to decide which student is guilty of copyright infringement based on the Plaintiffs' lack of any evidence tying an actual person to any infringing act, much less any specific act of infringement. (There's no legal basis to the Plaintiffs' claim that they are entitled to relief for "making available".)

The Plaintiffs state that "the University maintains logs that match IP addresses with their network users' computer hardware." By implication, the computer hardware is the same as the owner of that hardware.

I just wonder what motivation a University would even have to retain logs of student activity on the Internet. If there are no logs, there would be nothing to subpeona. Why would a University risk the potential liability of a lawsuit for falsely implicating a student? Logs are not "directory information", and it appears to me that the University has an obligation under FERPA to keep students' private information protected. What better way to protect the students' privacy than to NOT keep logs of their Internet activity. My guess is that a University's best interest is to stay out of the controversy altogether.

Of course, if there are any applicable data retention laws the University may have no alternative but to retain logs. If that is the case, then I'd think the University is obligated to protect students' privacy by ensuring that any retained logs have no information that can be used to identify a particular student. Especially any information that would link an IP address to any specific computer.


Anonymous said...


My guess is that a University's best interest is to stay out of the controversy altogether.

This is exactly why the Doe defendants need to drag the University squarely into the middle of this. The University doesn't want a fight - or bad publicity for "abetting infringement" (the RIAA's view of Oregon's current fight) - and therefore rolls over to every subpoena that comes along. But the University is the best party to fight this precisely because they are the ones being subpoenaed, and do have significant resources.

In fact, in one recent case didn't a judge rule that the Doe defendants had no standing to oppose the subpoena for discovery to their university because they weren't the ones who'd received the subpoena in the first place? And their university wasn't fighting it for them.

Drag the university, kicking and screaming, into the middle of this fight and make them do the right thing to protect their students against invalid, unlawful, inaccurate, and just plain wrong, subpoenas.