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RIAA Wants to Include Song Files it Can't Produce 234

Posted by Zonk
from the hidden-files dept.
NewYorkCountryLawyer writes "In UMG v. Lindor the RIAA is trying to include song files it doesn't have copies of as part of its 'distribution' argument. The defendant Marie Lindor is asking the Court to preclude them from doing that. She points to the RIAA's own interrogatory response in which the record companies swore that their case was based upon their investigator seeing a screenshot and then downloading 'perfect digital copies'. They produced eleven (11) copies of song files, but want to be able to prove twenty seven (27) other songs for which they can't produce the files."
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RIAA Wants to Include Song Files it Can't Produce

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  • stupid court system (Score:5, Informative)

    by JeremyALogan (622913) on Sunday September 24, 2006 @04:53AM (#16173291) Homepage
    If I were them I'd really like to beat my hands against my chest and cry "innocent until proven guilty, mother-fuckers", however this is civil, so they basically don't have to prove anything. We have a broken legal system.
  • by TERdON (862570) on Sunday September 24, 2006 @05:43AM (#16173431) Homepage
    The swedish Antipiratbyrån already has got people convicted with screenshots as the only evidence. You'll better hope they won't teach **AA that...
  • by larry bagina (561269) on Sunday September 24, 2006 @05:47AM (#16173447) Journal
    The lady was using eDonkey or whatever. The RIAA downloaded 11 songs from her and filed a lawsuit. They have a screenshot showing that she was sharing 27 songs and want all them included in their lawsuit, even though they didn't actually download/verify 16 of the songs. That's my understanding, at least.
  • by AlgorithMan (937244) on Sunday September 24, 2006 @07:38AM (#16173791) Homepage
    not even videos are allowed as evidence in courts, how do they think "I saw a screenshot" could be allowed as evidence? allowing this as evidence in court would be dictatorship!

    do it like the german chaos computer club and pirate party, BOYCOTT THE MUSIC INDUSTRY! LISTEN TO CREATIVE COMMONS MUSIC! it's great music and it's free and the damn music industry can't prosecute you for listening to it for free!

    http://wiki.creativecommons.org/Content_Curators [creativecommons.org]
    http://www.garageband.com/htdb/index.html [garageband.com]
  • Re:Sounds like.... (Score:5, Informative)

    by cpt kangarooski (3773) on Sunday September 24, 2006 @07:52AM (#16173859) Homepage
    When you're trying to prove someone is guilty of a CRIME, you need to go the extra mile and make sure it's air-tight

    Well, this is a civil case, so as it happens no one is trying to prove anyone guilty of any crime. I guess they dodged a bullet there.

    Who's to say that the file called "Enter Sandman" wasn't really an audio clip from Aunt Milly's piano recital?

    Sure. And a jury can decide which of the two possibilities is most likely to them (since that, and not the stricter 'beyond a reasonable doubt,' is the standard here), and then whichever possibility they find to be most likely is true, for the purposes of the case.

    So if you were a juror, and you were being fair to both sides, and they asked you what you thought the file was based on the name, which do you think it probably would be, even if that probability was only a 51% likelihood?
  • Re:Sounds like.... (Score:5, Informative)

    by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Sunday September 24, 2006 @08:24AM (#16173991) Homepage Journal
    Yes they do flood the internet with junk files which look like song files but aren't. The only way to tell if it's a real song file is to listen to it from beginning to end. See Reply Memorandum of Law [ilrweb.com] at pages 2-4. As you can see from the deposition testimony excerpted there, the company that 'investigates' for the lawsuits and the company that floods the internet with junk pseudo-song files is the same company.
  • by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Sunday September 24, 2006 @08:34AM (#16174041) Homepage Journal
    Correct. See Gary Millin deposition testimony at pages 2-4 of Reply Memorandum of Law [ilrweb.com], where he admitted making bogus files that looked like song files, and littering the internet with them. He admitted that the only way to tell if it was a real song file was to listen to it from beginning to end.
  • Re:boycott the RIAA (Score:3, Informative)

    by NewYorkCountryLawyer (912032) * <rayNO@SPAMbeckermanlegal.com> on Sunday September 24, 2006 @09:08AM (#16174175) Homepage Journal
    I agree with you. I've been collecting a list of links to sources of non-RIAA music which I call Liberated Music [blogspot.com]. I've added garageband.com [garageband.com] to it (I already had Creative Commons [creativecommons.org] in there). Incredible the wealth of music that's out there once you liberate yourself from the monotony of the 4 big record companies.
  • Re:Sounds like.... (Score:3, Informative)

    by The Only Druid (587299) on Sunday September 24, 2006 @09:24AM (#16174243)
    One thing it is perfect evidence of is the mens rea of the person sharing those files (if we assume the screenshot hasn't been altered). If the person had a file in their share-list, we know they intended to share that file. If that file is undeniably (big if) a file they had no legal right to share, then we've established that the person intended to violate the legal rights of the rightsholder.

    Notice the limitations here: it means nothing if we don't know whether the file was, in fact, a copyrighted file; it means nothing if the trustworthiness is in question.
  • Re:Sounds like.... (Score:2, Informative)

    by phulegart (997083) on Sunday September 24, 2006 @10:05AM (#16174417)
    If the RIAA was paying companies to distribute junk files that were named after legitimate songs, and then attempted to turn around and point to the existance of those "junk" files that appeared to be real songs as proof of people downloading illegally distributed music, that would make the RIAA guilty of fabricating evidence to assist their case.

    It would not be the first time an organization (any Police force, for example) used a fake material (something that looked like cocaine) in a sting operation, for just the act of buying what you THINK is cocaine from an undercover operator, is enough to get you convicted of the same crime as ACTUALLY purchasing real cocaine.

    This is different though. If the RIAA was simply distriuting junk files, then monitored who downloaded the junk files to prosecute them, that would be a sting operation similar to the one I laid out above. Based on precedent, that would be completely legal of them. If, however, the RIAA is distributing junk files, then throwing a screaming fit for prosecution based on just the existance of those junk files, that is the same as planting a gun on someone to implicate them in a crime they did not commit.

    COnsidering how much trouble the RIAA would get in if they were attempting to ENTRAP people, and combined with the fact that there are more than enough people currently downloading music illegally at this very moment, I highly doubt that the RIAA is paying companies to distribute junk files.

    If the RIAA provides screenshots of a P2P program screen, showing that a particular song is being downloaded BY 200 people, while it is also being seeded by another 150, I'd say that is proof of the fact that 150 people have a questionable file, and another 200 are getting it illegally. I don;t believe they have to actually go to one of those person;s house, and watch the song download.
  • Re:Reverse it (Score:2, Informative)

    by kfg (145172) * on Sunday September 24, 2006 @10:21AM (#16174513)
    I don't think, however, that the average Joe-Citizen is able to launch a criminal case against anyone.

    The vast majority of criminal cases are launched not by police action, but on the complaint of an average Joe-Citizen. In fact, most cases cannot even go forward without such a complaint, even in the clear presence of a crime, since prosecution requires a faceable accusser.

    KFG
  • Re:Sounds like.... (Score:5, Informative)

    by cpt kangarooski (3773) on Sunday September 24, 2006 @11:00AM (#16174873) Homepage
    No. First, mens rea is not an element of copyright infringement. Infringement is a strict liability offense. At most, mens rea is only relevant in computing damages. Second, intent to infringe is not infringement or any other offense. There must have been actual infringement to support the case. So the contents of the file are crucial to the case. If the file contents were the plaintiff's copyrighted work, then that helps the plaintiff. If not, then that helps the defendant, since there is nothing wrong with sharing a misnamed file which is otherwise lawful to share, even if it's done unwittingly.

    However, so far as we can discern what the contents were based on the name, which is a jury question, it's still possible to win a suit without actually showing what the contents are. But I wouldn't like to have to do that, since it's not a strong position.
  • Re:Sounds like.... (Score:3, Informative)

    by rolfwind (528248) on Sunday September 24, 2006 @01:24PM (#16176325)
    Honestly, if I were on the jury, I would first try to see what the little guy is getting sued for (how much $$$). Then I will see if this was someone trading peddling files left or right or if it was someone trading a few files much like kids used to do with CDs in the schoolyard.

    If he was a peddler, I would weigh whether the jury can fine him or if the judge. If the jury can fine him, I'd be willing to put in a guilty verdict and the appropriate fine for a peddler. The person who trade a file here and there I would let off.

    If the judge decides the fine, then I would put in a innocent vote under all circumstances. No one's life is worth ruining over a few songs.

    I would not listen to any judge's or court's directions (nor yours parent poster) on how to vote either as this is an infraction against the power of a jury and voting by conscious (and ignoring the judge) is perfectly okay and is called Jury Nullification.
  • Re:Sounds like.... (Score:2, Informative)

    by arth1 (260657) on Sunday September 24, 2006 @03:38PM (#16177405) Homepage Journal
    One thing it is perfect evidence of is the mens rea of the person sharing those files (if we assume the screenshot hasn't been altered). If the person had a file in their share-list, we know they intended to share that file. If that file is undeniably (big if) a file they had no legal right to share, then we've established that the person intended to violate the legal rights of the rightsholder.

    It's a bigger if than most people realise. The record companies don't own any and all performances of a tune -- they hold the copyright to specific recordings. If Virgin holds the copyright to all Artist X CDs released in the US, that doesn't give them the copyrights to the song I legally downloaded from the artist's own site, nor the vanity 12" single.

    Finding a song that they hold rights to doesn't prove anything, as I can have a different performance of the same song -- they have to prove that they hold the copyrights to the particular performance that I have a copy of.

    Regards,
    --
    *Art
  • Re:Sounds like.... (Score:3, Informative)

    by NMerriam (15122) <NMerriam@artboy.org> on Sunday September 24, 2006 @06:58PM (#16178743) Homepage
    You're right, I'm a professional artist who consults with intellectual property attorneys on this topic on a regular basis. My entire career is based on copyright. My rent is paid with copyrights and my food is bought with copyrights. 99% of the contracts I've negotiated in the past 15 years of my life have been about copyright.

    There is no such thing as implicit permission to redistribute copyrighted material. There is Fair Use, and there is explicit permission, but nothing in-between. You could argue in court that damages should be lower because you believed you had implicit permission, but you would still be guilty of violating the copyright holder's exclusive authority to distribute. There is no way under current US law to transfer any right of reproduction or distribution without an explicit statement.
  • Re:Sounds like.... (Score:3, Informative)

    by cpt kangarooski (3773) on Sunday September 24, 2006 @07:52PM (#16179151) Homepage
    What if the RIAA copyrighted the junk files it's paying people to distribute?

    It would depend on what the file consisted of, but it's entirely possible.
  • Re:Sounds like.... (Score:3, Informative)

    by cpt kangarooski (3773) on Sunday September 24, 2006 @11:27PM (#16180715) Homepage
    In this case, I think that the biggest problem is that, how can the RIAA prove that it's being "harmed?"

    Assuming that they're seeking statutory damages, and that they are able to get them, both of which are very likely, the law does not require that they be harmed, or that they prove that they were harmed.

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