Saturday, February 23, 2008

Transcript of oral argument in Andersen v. Atlantic

We have obtained what appears to be an unofficial transcript of the February 13, 2008, oral argument, referred to by the Judge in her decision dismissing the complaint with leave to replead, in Andersen v. Atlantic.

A link is provided in the original article.

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...

Regarding negligence, which the judge makes a big deal over regarding the RIAA Plaintiffs original decision to sue, the judge seems to indicate that he can't see how the RIAA Plaintiffs were negligent in that decision.

I must disagree with the judge on the point. The RIAA Plaintiffs sued people they knew, or should have known, that they had no evidence of being the actual infringers. The RIAA Plaintiffs also knew, or should have known, that many of the IP/timestamp combinations that MediaSentry/SafeNet provided to them and they passed along to the various ISP's, were returned as invalid, or unable to match to any ISP user's account with the records available. This meant that the RIAA Plaintiffs knew that they were: 1) Suing an ISP account holder with no evidence that this ISP account holder was the actual infringer; and 2) Suing with flimsy data that was often known to be unreliable. Even so, they pressed forward, claiming that their method admitted no error, and that truly is negligence.

That should also clearly be Fraud. The RIAA Plaintiffs clearly knew they had not, and could not, identify the actual infringer as the ISP account holder, yet they pressed on anyway, claiming that their information identified the actual user.

Regarding the trespass on the current Plaintiff's computer, the RIAA claims that they accessed her computer and found music files. Ms. Anderson says there are no music files because she never downloaded any. She can't prove that they intruded on her computer according to the judge, so she can't claim damages for them doing so.

This gives an interesting analogy. A thief breaks into your house looking for something he's certain you have stolen from him. You can't prove he broke into your house, but he says he broke into your house and no other. Can you sue that thief for breaking into your house with no evidence except his word that he was certain it was your house he broke into?

I'm sorry to hear that the judge doesn't feel that a Misuse of Copyright can be pleaded under these circumstances. That, along with RICO, would clearly be the most damaging to the RIAA Plaintiffs, and leave them to rue the day they ever set out on this ill-conceived plan to sue individuals in this manner.


Anonymous said...

So, my curiosity after reading this is as follows.

Presumably, Mrs. Anderson did not have her computer trespassed to. But the proposed class would definitely have a bunch of people who did have.

So, if all of the Anderson claims go away, does that leave anyone else who can show actual trespass free to pursue their own class action?

It'd seem that judicial economy would favor allowing Lybeck to plead the class's cases by providing facts not germane to Anderson's situation.