The Slashdot and Groklaw communities were so helpful in preparing for the deposition of the RIAA's "expert" witness, Dr. Doug Jacobson, we thought we'd come back and ask for your thoughts on what documents and/or data to request from the RIAA's 'investigator', MediaSentry, Inc. The documents we have so far are just printouts, which were used at Dr. Jacobson's deposition, specifically exhibits 6, 10, 11, 12, 13, and 14. Of course we have some ideas of our own about what to demand, but we want to leave no stone unturned. For the technical minded among you, this is your chance to be a part of bringing the RIAA's litigation campaign down.

The Interscope v. Rodriguez decision dismissing the RIAA's boilerplate complaint, and the $9250-per-song-file verdict in Capitol v. Thomas, have inspired some new dismissal motions in RIAA cases. In Charleston, South Carolina, Catherine Njuguna has moved to dismiss on the basis of the legal insufficiency of the RIAA's complaint and on constitutional grounds due to the excessive damages sought by the RIAA, while in Brooklyn, New York, MS victim Rae J Schwartz has moved to dismiss based solely on the complaint's failure to state a claim under Rodriguez and the Supreme Court decision, Bell Atlantic v. Twombly.

Jammie Thomas has filed a motion to set aside the $222,000 verdict obtained against her by the RIAA, based on allegations she infringed $23.76 worth of song files. Her motion papers (pdf) argue that the verdict is excessive and in violation of the due process clause of the U.S. Constitution, and should be reduced to $150 or less, or a new trial ordered. (See, e.g. UMG v. Lindor). It has been reported that the RIAA issued a statement that "Thomas [is] not taking responsibility for her actions, and .... they want to resolve the case in a "fair and reasonable" fashion. It is unfortunate that the defendant continues to avoid responsibility for her actions....". In my experience that is RIAA-speak for "after the verdict we have tried to make a settlement with her, but she wouldn't meet our terms".

A federal judge in Tampa, Florida, has ruled that an RIAA defendant's counterclaim against the record companies for conspiracy to use unlicensed investigators, access private computer records without permission, and commit extortion, may move forward. The Court also sustained claims for violations of the federal Computer Fraud and Abuse Act as well as a claim under Florida law for deceptive and unfair trade practices. The decision (pdf) by Judge Richard A. Lazzara in UMG v. DelCid rejected, in its entirety, the RIAA's assertion of "Noerr Pennington" immunity, since that defense does not apply to "sham litigations", and Ms. Del Cid alleges that the RIAA's cases are "sham".

Several weeks ago it was discovered that a California federal judge, in rejecting an RIAA application for default judgment, had dismissed the RIAA's standard complaint for failure to state a claim, calling it "conclusory" "boilerplate" "speculation" in Interscope v. Rodriguez. In the wake of that decision, a Queens, New York, woman being sued in Brooklyn federal court, Rae J Schwartz, has told the Court that she is making a motion to dismiss the complaint in her case, Elektra v. Schwartz. This is the first post-Interscope challenge to the RIAA's boilerplate, of which we are aware. This is the same case in which the RIAA had sent a letter to the Judge falsely indicating that AOL had "confirmed that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed". Ms. Schwartz suffers from Multiple Sclerosis and has never engaged in file sharing, but the RIAA has pressed the case against her.

I write a blog on Education and I had wanted to leverage the purchase of a low-cost PC with a brief tutorial on installing Ubuntu as an inexpensive alternative for educational institutions. I am trying to convince local [and national educators] to purchase low-cost PCs for students in high school so that they can search information, blog, and participate in the world as we all do these days (An entirely different conversation).

I have been in conversations with some educators who were currently using Macs but had no sustainable budget to keep that up and who were looking at Ubuntu. So I wanted to talk about real life experience.

After much laptop deal searching, a Best Buy ad enticed me into buying a sale laptop last Sunday. At the store, the salesman convinced me that the sale brands were being returned often and to consider another brand. I bought a Toshiba instead, preloaded with Vista but dual-bootable I was assured.

From Monday until today, Saturday I spent 3-5 hours a day trying to install Ubuntu (and later Suse) on this machine (Toshiba Satellite A215-S4747). Searching the internet and Ubuntu's site was encouraging. Numerous people had claimed success at dual-booting Ubuntu on Vista - it just worked according to these claims. So I followed the instuctions. I used Vista Disk Manager to shrink the Vista partition and create a 90GB space for Ubuntu.

I burned the latest Ubuntu 64-bit OS and it failed to recognize any partitions. I burned the latest 32-bit version and it failed to recognize any partitions. I reverted to my commercially purchased Ubuntu 6.0.whatever DVD and it failed to recognize any partitions. I tried them all two and three times.

I tweaked the partitions. Nothing helped. I downloaded EasyBCD - waste of time. I tweaked this that and another thing following internet recipes 0-1000. No dice.

Friday night, the last straw. I decide to reformat the C: drive completely. Vista refused to allow it. I try with an old copy of Partition Magic. It dies trying.

Saturday morning, I called Toshiba customer support. How do I get rid of Vista? Hold on!... Go out and purchase a copy of XP!

No, maam, I don't want Vista or XP or any such thing... what do I do?

(No local Toshiba service stations nearby - the Toshivba website is worthless - you're more likely to find a drinking fountain in the Sahara)

Uh, take it back to Best Buy... here's a ticket number...

I pack the machine and take it to Best Buy.

I have a defective drive... it won't allow me to format the C: drive.

Oh, we'll do that for you for $59!

No, you don't understand. I bought this product because I was told it was dual-bootable. It is not.

We can fix it for $59.

No, I'd rather return it.

I walk over to returns.

This machine is defective... blah, blah, blah...

No it is not - there are free internet utilities that will allow you to format your disk.

Really. What are they?

Oh, I don't know.

Okay. Hook the machine to your internet connection and find me one.

That will be $30 - I don't work for free.

The popping cork sound was my temper. I stormed out of the store leaving the machine and taking the receipt. I left and cooled off and returned. I asked a store clerk to witness the conversation. Techy #1 disappears.

I believe you're committing consumer fraud by claiming that such a free utility exists. I've been searching for days.

Techy #2: I don't know if one does.

Well, what do you use?

Techy #2: That's a Best Buy secret (I suspected they simply replaced hard drives).

Miracle on 34th Street this wasn't. I told them I planned to complain to the Attorney General's office next week. Regardless, they had lost my business for good.

On the way out, Techy #2 pulls me aside.

C'mon. Don't you know any hard drive manufacturer's disk utility will do the job? Trrrrrrrrrr.....yyyyy it.

Thanks, I will.

I get home and the machine no longer boots at all. It asks for the rescue disk. By now, "Longhorn" is synonymous with "long uncomfortable shaft".

On my PC I download Seatools. It dies trying to format the drive. I'm tired, exhausted and pissed off.

What I have decided would be worthwhile is an open source Vista Service Pack.

I can only offer my lessons learned:

1. Microsoft is to operating systems what George Bush's administration is to foreign policy. The concept of "dual-boot" is proprietary market-speak. So is "operating system". Vista owns your hard-drive and maybe other computer internals.

Vista is anti-competition in ways that should frighten us. If it is okay for a corporation to hold our computers (re; extensions of ourselves) hostage, who else will follow?

2. The best way to protect yourself in a market glutted with pre-loaded Vistas is to buy the model with the smallest hard drive so that when you throw it out and replace it with a blank you cut your losses.

3. Stop complaining about Microsoft. If you can't dual-boot linux, haiku, unix, or whatever - call business help lines often. Corporations whose cost to handle complaints skyrocket will listen when profits shrink.

4.) We need products that can be purchased free of hard drives and the hard drives components need to be designed for easy snap in. Enough with the manufacturer's dictating product.

5.) We need companies who will buy unwanted Vista infected hard drives and swap them for clean drives.

Frank Krasicki http://region19.blogspot.com

A few days ago it was reported that, in view of the RIAA's one-month delay in paying the $68,685.00 attorneys fee award in Capitol v. Foster, and its lawyers' failure to respond to Ms. Foster's lawyer's email, Ms. Foster filed a motion for entry of judgment so that she could go ahead with judgment enforcement proceedings. In response to that motion the RIAA submitted a statement that it had no objection to entry of judgment, and intimated that it thought there would be an automatic stay on enforcement of the judgment, and that it would ultimately file an appeal. After seeing that, Ms. Foster's lawyer has filed a motion for the Court to require the RIAA to post $210,000 in security to cover the past and future attorneys fees and costs which are expected to be incurred.

Can it be that the RIAA, or the "Big 4" record companies it represents, are short on funds? It turns out that despite the Judge's order, entered a month ago, telling them to pay Debbie Foster $68,685.23 in attorneys fees, in Capitol v. Foster, they have failed to make payment, and Ms. Foster has now had to ask the Court to enter Judgment, so that she can commence "post judgment collection proceedings". According to Ms. Foster's motion papers (pdf), her attorneys received no response to their email inquiry about payment. Perhaps the RIAA should ask their lawyers for a loan.

UMG Recordings, part of the Universal music group, one of the "Big 4" record companies, has brought suit against an eBay reseller of Promo CD's (pdf), in UMB v. Augusto, in California. The defendant, whose legal team includes the Electronic Frontier Foundation, is fighting back (pdf), claiming that his sales of the CD's are lawful under the "first sale" doctrine under Section 109 of the Copyright Act (17 USC 109), and counterclaiming against UMG for sending out false notices under the DMCA (Copyright Act Section 512).

Some of you may have read "Last chance to see" by Douglas Adams. The book, a documentary about endangered species, describes how the Yangtze River Dolphin population declined drastically in just one or two generations. Those dolphins were not slowly killed by man for food. They simply died, because all those engine ships going up and down the river rendered their sonar useless.
It is now 3 years since a dolphin was last sighted despite a Large Expedition in 2006. They will not be officially declared extinct untill 2054 (50 years after a living speciment is last sighted) but there is little hope that they have somehow survived. As far as i know, it is the first of the species mentioned in "last chance to see", that will not be seen anymore.

The RIAA's challenges to Judge Lee R. West's order (pdf) awarding the defendant attorneys fees in Capitol v. Foster and to the "reasonableness" of Ms. Foster's attorneys' fees have not only forced the RIAA to disclose its own attorneys fees, and caused the judge to issue a second decision labeling them as "disingenuous", their motives "questionable", and their factual statements "not true", but have now caused the amount of the fees to more than double, from $55,000 to $114,000, as evidenced by Ms. Foster's supplemental fee application (pdf's).

In SONY v. Arellanes, an RIAA case in Sherman, Texas, the Court entered a protective order (pdf), which spells out the following procedure for the RIAA's examination of the defendant's hard drive: (1) RIAA imaging specialist makes mirror image of hard drive; (2) mutually acceptable computer forensics expert makes make 2 verified bit images, and creates an MD5 or equivalent hash code; (3) one mirror image is held in escrow by the expert, the other given to defendant's lawyer for a 'privilege review'; (4) defendant's lawyer provides plaintiffs' lawyer with a "privilege log" (list of privileged files); (5) after privilege questions are resolved, the escrowed image -- with privileged files deleted -- will be turned over to RIAA lawyers, to be held for 'lawyers' eyes only'. The order differs from the earlier order (pdf) entered in the case, in that it (a) permits the RIAA's own imaging person to make the initial mirror image and (b) spells out the details of the method for safeguarding privilege and privacy.

Gods in Color

"Apparently the ancient greek sculpture and idols used to be coloured. Although, only the white of the marble remains, research made by the university of Munich, revealed the original colors of some exhibits."

can you imagine?

Now that the RIAA, MPAA, and who knows how many government agencies are sniffing internet traffic in order to find subvers^H^H^H^H^H^H^Hpirates, it would be nice to have an ironclad method of achieving plausible deniability.

In Slashdot and elsewhere, we've heard of a possible solution: open up your WiFi access point. With an open WiFi access point, traffic analysis can no longer conclusively prove who sent which packets.

The problem is that an open WiFi access point creates a different set of problems. Random strangers will be able to probe within your home network. They'll be able to eavesdrop on the traffic between your own computers. And of course they'll be able to gobble up your bandwidth.

But maybe there's a solution here after all. What if you bought two WiFi routers, opened one up to public access, locked the second one down, and routed the locked-down router through the public router? Linksys publishes a document called "Cascading (Connecting) a Linksys Router To Another Linksys Router" that inadvertently describes exactly how to do this.

The upshot is that your internet connection will be opened to the public, yet your home computers and home network will still be running encrypted and will still be safely behind a private firewall. All home traffic will flow through the public router, where it will join the anonymous traffic coming in from strangers, thereby creating plausible deniability.

All for fifty bucks.

The problem of strangers hogging your bandwidth can, I think, be addressed with the QoS settings. On my Linksys WRT54G, the configuration menu offers QoS settings under "Applications and Gaming" | "QoS", and allows a specific port (the one connected to the private router) to be given highest priority. You could also reduce the open router's WAN speed to 11 or so Mbps (under "Wireless" | "Advanced Wireless Settings"), though you shouldn't reduce it too far, lest the dysthorities see more suspicious bits per second than an anonymous user could possibly be consuming.

If you live in a house with few close neighbors, you can upgrade the open router's antennas in order to sweep in a larger area of potential anonymous users. Wal-mart sells antenna upgrade kits for forty-five dollars. Of course you wouldn't want to do this in an apartment complex where there are already lots of nearby users, because the whole point of this setup is to have the potential for anonymous users but as few actual anonymous users as possible.

P.S. I have heard that some newer brands of wireless router have a feature built right in to allow anonymous use of the internet connection. I don't know how this works, but I'm suspicious that those routers might somehow treat the anonymous traffic differently, in such a way that it could later be identified and separated from 'home' traffic. That would be a Bad Thing, as far as plausible deniability is concerned.

P.P.S. I got this idea from the Tor documentation, which mentions the useful legal effect of serving as an internet connection for random strangers.

In an Oklahoma case, Capitol Records v. Debbie Foster, the Court has granted the defendant's motion for attorneys fees to be imposed against the RIAA, holding that Ms. Foster is to receive her "reasonable attorney's fees". Judge Lee R. West, in his 9-page decision(pdf), did not specify the amount to be awarded, held that the RIAA can have "discovery" on the reasonableness issue, and also ruled that Ms. Foster can also later supplement her application for additional fees. Her initial application was for approximately $55,000 in legal fees and disbursements. This is the case in which the ACLU, Public Citizen, EFF, the American Association of Law Libraries, and the ACLU Oklahoma Foundation, all filed an amicus brief on Ms. Foster's behalf, arguing to the judge that a substantial attorneys fee award was needed to discourage the RIAA's "driftnet" litigation strategy.