The RIAA is seeking to drop its case against Patti Santangelo, Elektra v. Santangelo, in White Plains, New York. This is the case against a single mom, and mother of five, which received a great deal of press attention in 2005. The case was discussed on Slashdot here, here, and here, was on national television here and here, and received a lot of other press coverage as well. See sampling of articles collected here and see Associated Press coverage here. The RIAA's motion seeks dismissal "without prejudice", which means that they could sue her again for the same thing. Their reason is no doubt to try to insulate themselves from liability for attorney's fees, since a dismissal "with prejudice" would make Ms. Santangelo a "prevailing party" under the Copyright Act, hence eligible for an attorneys fees award. See Capitol v. Foster July 13, 2006, Order Dismissing Case and Finding Defendant to be Eligible for Attorneys Fees.

A recently obtained English translation of the opinion of the Amsterdam Court of Appeal in Foundation v. UPC Nederland, agrees with the lower court decision that the MediaSentry investigation by Tom Mizzone was an insufficiently reliable basis to warrant directing Dutch ISP's to turn over confidential customer information to the RIAA's Netherlands counterpart: "neither the affidavits nor the cross-examination of Mr. Millin pro[...]vide clear and comprehensive evidence as to how the pseudonyms of the KaAaA or iMesh users were linked to the IP addresses identified by MediaSentry. No evidence was presented that the alleged infringers either distributed or authorized the reproduction of sound recordings. They merely placed personal copies into their shared directories which were accessible by other computer users via a P2P service." The appeals court agreed with the independent experts report of Prof. Henk Sips and Dr. Johan Pouwelse of the Parallel and Distributed Systems research group at Delft University of Technology that MediaSentry's Tom Mizzone had not taken the "necessary precautions" in conducting his 'investigation' and that his investigation was 'limited' and 'simplistic', failing to "resolve... relevant technical problems such as superpeer hopping, NAT translation, and firewall relaying....[failing to implement] "actual complete file transfer....simply [taking] filenames at face value and ...[failing to make] any correction for pollution on Kazaa [despite] [p]ollution levels [on Kazaa which] can be as high as 90% for some files....[not being aware of] the limitations of Kazaa in file searching. Not many of the 2,499,121 users online would be able to see the mentioned 736 files. Reliable global searching in P2P file sharing networks is still an unsolved problem. Only users connected to the same Kazaa Superpeer are guaranteed to see these files when Kazaa operates properly (roughly 100 to 150 users as measured by Prof. Keith Ross)....[failing to take] computer hygiene precautions ..... The collected evidence of the spacemansam@KaZaA alias [query] contains multi-peer downloading contamination. Therefore, it is difficult to establish the contribution of the various IP-addresses. It is possible that some IP-addresses contributed 0 Bytes to an actual download, thus there was only involvement and no actual contribution". The Netherlands litigation recently came to the fore recently in UMG v. Lindor, a United States case, in which the RIAA is trying to prevent Ms. Lindor's attorneys from seeing the MediaSentry agreements spelling out the "instructions", "parameters", and "processes" of Mr. Mizzone's investigation, and Ms. Lindor's attorneys argue that the agreements are necessary for a proper deposition and cross-examination of Mr. Mizzone.

According to court papers by Henk Sips and Johan Powelse of Delft University of Technology in the Netherlands, submitted recently in a United States RIAA v. consumer case, UMG v. Lindor, MediaSentry's 'investigations' of copyright infringers using Kazaa p2p file sharing software are flawed, having failed to resolve "relevant technical problems such as superpeer hopping, NAT translation, and firewall relaying by Kazaa". Professor Sips and Dr. Pouwelse work in the university's "Parallel and Distributed Systems" research group.

In Elektra v. Schwartz, an RIAA case against a Queens woman with Multiple Sclerosis who indicates that she had never even heard of file sharing until the RIAA came knocking on her door, the judge held that Ms. Schwartz's summary judgment request for dismissal was premature because the RIAA said it had a letter from AOL "confirm[ing] that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed....". (Copy of order)(pdf) When her lawyers got a copy of the actual AOL letter they saw that it had no such statement in it, and asked the judge to reconsider.

In Chicago, Illinois, a Kazaa customer has filed a class action against Kazaa, Lewan v. Sharman, U.S.Dist. Ct., N.D. Ill 06-cv-6736. The lead plaintiff, Catherine Lewan, was a Kazaa customer who was sued by the RIAA for her use of Kazaa, and paid a settlement to the RIAA, and she sues on behalf of others who have been sued by the RIAA for her Kazaa use. In her complaint(pdf) she alleges, among other things, that Kazaa deceptively marketed its product as allowing "free downloads" (Complaint, par. 30); it designed the software in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37); and it surreptitiously installed "spyware" on users' computers which made the shared files folder accessible to the Kazaa network even after the user had removed the Kazaa software from his or her computer (Complaint, par. 42-45). Ms. Lewan and the class are represented by Charles Lee Mudd, Jr., of Chicago.

In Elektra v. Schwartz, an RIAA case against a Queens woman with Multiple Sclerosis who indicates that she had never even heard of file sharing until the RIAA came knocking on her door, the judge held that Ms. Schwartz's request for summary judgment dismissing the case was premature because the RIAA said it had a letter from AOL "confirm[ing] that defendant owned an internet access account through which copyrighted sound recordings were downloaded and distributed...."(pdf). Do they really have such a letter?

To those who might think that I might be exaggerating when I describe the RIAA's litigation campaign as a "reign of terror", how's this one: in UMG v. Lindor, the RIAA not only subpoenaed the computer of Ms. Lindor's son, who lives 4 miles away, but had their lawyer telephone the son's employer. See page 2, footnote 1.

Public Citizen, the American Civil Liberties Union, and the New York Civil Liberties Union have come out against New York's proposed new rules governing web sites, blogs, and emails, saying the rules would be unworkable in practice and would violate the First Amendment of the United States Constitution.

In UMG v. Lindor, in Brooklyn federal court, the presiding judge has held that Marie Lindor can try to prove that the RIAA's claim of $750-per-song statutory damages is a violation of the Due Process Clause of the Constitution, since she has evidence that the actual wholesale price of the downloads is only 70 cents. This decision activates an earlier ruling by the Magistrate in the case that the record labels must now turn over "all relevant documents" regarding the prices at which they sell legal downloads to online retailers, and produce a witness to give a deposition by telephone on the subject. Judge Trager rejected the RIAA's claim that the defense was frivolous, pointing out that the RIAA had cited no authorities contradicting the defense, but Ms. Lindor's attorneys had cited cases and law review articles indicating that it was a valid defense. See Decision at pp. 6-7.

Is the RIAA's contract with MediaSentry, Inc. "privileged". The RIAA says yes. Marie Lindor says no. The RIAA made a protective order motion on September 27th claiming that the MediaSentry contracts are subject to attorney client privilege and work product privilege. RIAA executive vice president Bradley A. Buckles said in the RIAA's motion that "the MediaSentry Agreement provides detailed information regarding the instructions and parameters for conducting on-line investigations that were discussed and developed by the RIAA and its counsel, on behalf of the RIAA's members. The Agreement also notes processes that are highly proprietary to MediaSentry and certain sources of infringement that are beyond MediaSentry's ability to detect." The RIAA also said that "The MediaSentry Agreement is not limited to matters relating to the current lawsuit or even to lawsuits against individuals like defendant who downloaded and distributed sound recordings illegally. Rather, MediaSentry has been retained by the RIAA, on behalf of its members, to handle a wide array of anti-piracy efforts for the recording industry, and it has done so." Ms. Lindor's lawyers say, in essence, those are good reasons the documents need to be turned over, so that we can prepare to crossexamine about the (a) "proprietary" "processes" which haven't been peer-reviewed, and (b) the "instructions" and "parameters" the lawyers dictated to their so called 'experts'. Plus, they say, among other things, how can you have attorney client privilege where there's no attorney?

The RIAA has dropped the Elektra v. Wilke case in Chicago. This is the case in which Mr. Wilke had moved for summary judgment, stating that: "1. He is not "Paule Wilke" which is the name he was sued under. 2. He has never possessed on his computer any of the songs listed in exhibit A [the list of songs the RIAA's investigator downloaded] He only had a few of the songs from exhibit B [the screenshot] on his computer, and those were from legally purchased CD's owned by Mr. Wilke. 3. He has never used any "online media distribution system" to download, distribute, or make available for distribution, any of plaintiffs' copyrighted recordings. The RIAA's initial response to the summary judgment motion, prior to the dismissal, had been to cross-move for discovery, indicating that it did not have enough evidence with which to defeat Mr. Wilke's summary judgment motion. p2pnet had termed the Wilke case yet another RIAA blunder.

I am building a list, on my blog, of links to good sources of non-RIAA music, which I call "Liberated Music". If you have suggestions for other links to add to my list, they would be appreciated. Please list your suggestion as a comment here. Thanks.

Chalk up a knockdown for the content cartel. Streamcast (maker of Morpheus) has been held liable for copyright infringement in MGM v. Grokster, Round 2. The lower court has granted the content providers' motion for summary judgment as to liability. See September 27, 2006, Order and Decision, Granting Plaintiffs Summary Judgment as to Liability Against Streamcast(PDF file).This means that Streamcast is determined by the judge to be liable, and that the only thing left for him to decide is what remedies, such as damages or injunctions, are appropriate. (Thanks to Digital Music News for publishing and hosting the order and decision.)

Marie Lindor Renews Motion for Summary Judgment; Home Health Aide Who Never Used A Computer Seeks End to RIAA Litigation

In UMG v. Lindor, Marie Lindor, the Brooklyn home health aide who's never used a computer, has renewed her request for summary judgment dismissing the complaint against her.

Ms. Lindor's lawyers first wrote to the Court asking for a summary judgment pre-motion conference on February 2, 2006. The Judge indicated that he wanted pretrial discovery to take place first. Since then Ms. Lindor has answered the RIAA's written discovery requests (interroagtories, document requests, and requests for admissions), attended her deposition, made the computer in her apartment available to the RIAA for a 'mirror imaging' exam, and made her son and daughter available -- without need of a subpoena -- to testify at their depositions.

Her lawyers argued:

"With all the discovery they've taken, plaintiffs are no closer to making any kind of case against Ms. Lindor than when they started this action. There is simply no evidence that she did anything that would subject her to any form of liability. Ms. Lindor has never even used, or even turned on, a computer, in her life. Plaintiffs are content to let the case go on indefinitely, to use it as a convenient platform for a never ending fishing expedition against potential third parties, but it would be unfair in the extreme to the defendant to allow this to continue, as it was unfair for plaintiffs to go this far. Plaintiffs should have conducted an appropriate investigation prior to commencing suit, and should conduct whatever further investigation they wish on their own time, but defendant should not have to support plaintiffs' investigation, when it has nothing to do with her. It is an abuse of the federal judicial system to allow a lawsuit against an individual who is clearly not the copyright infringer to be used as a convenient vehicle for investigating to find out who, if anyone, did violate plaintiffs' copyrights.

"No doubt plaintiffs will respond to this letter with a voluminous, albeit frivolous, letter of their own, representing to the Court that they have many good ideas for pursuing further leads against other possible individuals, one of whom who may have infringed some of plaintiffs' copyrights. But they will have nothing pointing to the defendant. There is simply no basis in the law to permit a lawsuit to be maintained against an innocent individual in order to give the plaintiffs a convenient platform for investigating to find some other individual who might be liable."

In Warner v. Stubbs, in Oklahoma, the defendant filed her answer and counterclaim against the RIAA on August 23, 2006 . In it she likened the RIAA's tactics to "extortion".

The very next day, on August 24, 2006 , the RIAA turned around and asked the Judge for permission to withdraw its case :

Ms. Stubbs is represented by Marilyn Barringer-Thomson, of Oklahoma City, Oklahoma, the same lawyer who represents Deborah Foster in Capitol v. Foster, the case in which the judge held that the RIAA may be liable for the defendant's attorneys fees.

I guess the RIAA doesn't want to tangle with Ms. Barringer-Thomson anymore.