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

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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  • download them (Score:5, Insightful)

    by managementboy ( 223451 ) on Sunday September 24, 2006 @04:04AM (#16173153) Homepage
    How about starting that donkey and downloading them? A copy is a copy, isn't it?

    Why don't they share with us what format they got the first few "perfect" copies... Monkey Audio?
  • Reverse it (Score:5, Insightful)

    by LiquidEdge ( 774076 ) on Sunday September 24, 2006 @04:25AM (#16173227) Homepage
    How about someone sue the RIAA for having kiddy porn on the RIAA web server? No, I can't prove it. But I just said it was there didn't I?
  • Re:Reverse it (Score:1, Insightful)

    by Anonymous Coward on Sunday September 24, 2006 @04:49AM (#16173271)
    this just isn't justice, what's to stop then from editing screen shots, it's not like they can't afford a copy of MS paint
  • Evidence (Score:5, Insightful)

    by Toba82 ( 871257 ) on Sunday September 24, 2006 @05:16AM (#16173347) Homepage
    Evidence isn't needed when you aren't expecting to win. The RIAA doesn't care about winning the case, they care about scaring people. It still works.
  • Re:Sounds like.... (Score:2, Insightful)

    by iamplasma ( 189832 ) on Sunday September 24, 2006 @06:35AM (#16173609) Homepage
    Not really. While I know it's trendy to join in on the usual RIAA-bashing, and as a matter of evidence it's really quite sloppy of the RIAA not to have actually downloaded the copies, and I think the misstatement in their filing is even more sloppy (but, honestly, they don't seem to be trying to actually mislead) I'm not really seeing the grounds everyone is going beserk on here. Basically, the difference is between "we searched Kazaa/eDonkey/whatever and this user was offering Metallica's album for download" and "we searched Kazaa/eDonkey/whatever and actually downloaded Metallica's album from this user". The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

    Now, while I suspect as a matter of pure legalism this motion has a good chance of success, I don't think many people would seriously argue that the person being accused here wasn't illegally sharing files based on this evidence. Of course, "proof" in practice and "proof" in law are often two totally different things, but before going beserk and calling the RIAA a bunch of fraudsters, keep in mind they're presenting what is realistically proof enough if you leave the red-tape of legalism out of the equation. Yes, I do know there have been occasions where the RIAA has come up with some possible false positives, and mislabelled files certainly exist, but it's more the exception than than the rule, so on the balance of probabilities, a person who shows up as having a Metallica album on a p2p program more likely than not does, it's as simple as that.

    Anyway, guys, quit the RIAA bashing. Complain they're doing sloppy investigating and it's not really an acceptable standard we should encourage, but don't act like they're a pack of liars when they're almost undeniably correct in their accusations and their only flaw is not doing as air-tight a job as they should have.
  • Re:Sounds like.... (Score:5, Insightful)

    by Paul Jakma ( 2677 ) on Sunday September 24, 2006 @07:24AM (#16173743) Homepage Journal
    The RIAA aren't making evidence up here, it's simply the question of if search results are proof enough.

    Don't they also pay companies to flood P2P networks with junk files?

    I don't see how a filename is indicative of anything, other than the string concerned having been distributed. Not even on balance of probability.
  • Re:Evidence (Score:3, Insightful)

    by Sancho ( 17056 ) on Sunday September 24, 2006 @07:34AM (#16173771) Homepage
    See, except that they do have evidence. The question is whether what they have counts when it gets before a judge. They aren't picking IP addresses out of thin air and making up that this person was violating copyright, they're saying, "This person is sharing files which look quite a bit like our music. I'm not going to download it to verify, but I'm going to sue." Realistically, a judge is going to assume that you are actually sharing the file, and I doubt you could convince him otherwise, particularly if the RIAA has 11 other songs that they did download.

    And don't argue "what ifs" or "but I'd do it just to screw with the RIAA". What matters is appearance, here, because ultimately the RIAA could take any mp3 and claim that they got it from you. How could anyone possibly prove otherwise? When we're talking about something as nebulous as a digital copy of music, it's virtually impossible to determine the origin of a file.
  • by DRJlaw ( 946416 ) on Sunday September 24, 2006 @07:43AM (#16173821)
    If on the other hand, the enforcers can maintain a suit without showing that they downloaded copies from the alleged infringer, then they really have no logical way of proving that what the p2p'er was sharing was infringing, rather than something with the same name and maybe filesize.

    I'm sorry, but there is a very logical way of establishing what the "p2p'er" was sharing was infringing, and it's called an inference based on circumstantial evidence.

    Let's be quite clear
    1. The plaintiff's agent, "the enforcer", obtained someone's IP address and a list of shared songs.
    2. The plaintiff's agent actually downloaded 11 of the shared songs, so that the plaintiff was presumably able to verify that the songs actually corresponded to the file's name and/or metatags.
    3. You have a list of shared filenames and quite possibly metadata tags, and concrete evidence that items on the list actually are what they purported to be.
    4. You can quite logically draw the conclusion that the shared filenames really are what they purport to be.

    The burden of persuasion on in a civil case is not "beyond a reasonable doubt," but a "preponderance of the evidence." If you can stand up before a jury or ordinary people and convince them that it really is more likely than not that each file downloaded from this source was really something other than what it claimed to be, then you need to start your own law practice. Also, the defendant in the case is arguing that they shouldn't even have to make that argument to a jury, simply because "the enforcer" did not download each and every file.

    I'm reasonably sympathetic to the defendants in these cases given the haphazard manner in which the license holders are initiating their lawsuits and the excessive penalties, but one you get beyond matching an IP to a subscriber, the arguments that the defendants are making quickly start to become ludicrous. Open wireless access points are attractive nuisances. Children using the office computer to amass a thousand songs are negligently supervised. You can surely argue against these points if there is a de minimis infringement, but when someone is building a trading a library of a thousand songs, it's hardly tenable to argue that ignorance is an excuse.

    Feel free to argue that you must have all the evidence you need to win a trial before filing a lawsuit, and to argue that you must have actual copies or physical specimens of each an every infringing work or device. When a corporation is a defendant, it will be more than happy to use those ludicrous arguments to its advantage to make it even more difficult for individuals to prove and obtain relief for copyright infringement, patent infringement, theft of trade secrets, and the like. It won't actually happen, and the defendants are going to lose these types of arguments, but the intellectual breadth of the typical Slashdot legal analysis continues to astound me.
  • by JonathanR ( 852748 ) on Sunday September 24, 2006 @08:07AM (#16173929)
    Perhaps a good defence would be to hand over a CD with 27 audio files saying just that (make sure you get the file size correct by padding the end with sufficient random white noise). It would be good to get some audio file of "RIAA are fucking arseholes" heard as evidence in court.

    I presume, as part of discovery, the defendant could ask for a copy of the files the RIAA downloaded?
  • (Score:3, Insightful)

    They don't have the copyright on the songs, just the 'sound recording copyright' on these particular recordings of those songs.
  • Re:Sounds like.... (Score:3, Insightful)

    by oohshiny ( 998054 ) on Sunday September 24, 2006 @09:15AM (#16174207)
    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.

    Are you simply too stupid to figure out what the GP was saying, or are you deliberately trying to confuse the issue by focussing on this irrelevant technicality?

    The RIAA demands compensation that amounts to more than what many criminal cases result in, and they may well ruin people's lives with that. The least we can ask of them is that they produce decent evidence.

    which do you think it probably would be, even if that probability was only a 51% likelihood?

    "Preponderance of evidence" doesn't necessarily mean that; the legal system can well demand stricter proof, even in civil cases.
  • Re:Sounds like.... (Score:3, Insightful)

    by Maxo-Texas ( 864189 ) on Sunday September 24, 2006 @09:55AM (#16174361)
    1) If they had 11 copies they did download.
    2) I'd probably believe that the other copies were real too.
    3) Then I'd jury nullify anyway most likely.
  • Re:Sounds like.... (Score:3, Insightful)

    by Maxo-Texas ( 864189 ) on Sunday September 24, 2006 @10:00AM (#16174385)
    It is up to the jury to decide if they believe it AND if they agree that the case is morally right.

    You shouldn't do something evil just because it's legal when the government has been corrupted as badly as it has.

    I think the people are doing something wrong and should be fined a reasonable amount (11 songs is worth 3 bucks via or $11 via itunes or way less via yahoo all you can listen tho you are renting there).

    If someone stole $11 worth of product from a store, what is the proper punishment?

    If someone read $11 worth of books in a store but did not take the books, what is the proper punishment?

    It's somewhere in that continuem. So I'd probably jury nullify to the best of my ability.
  • Re:Sounds like.... (Score:3, Insightful)

    by Maxo-Texas ( 864189 ) on Sunday September 24, 2006 @11:44AM (#16175357)
    I've been selected for juries before.

    It's pretty easy to get deselected.

    But if I'm not going to admit that I believe in jury nullification.

    I just don't believe in the justice system any more. They've criminalized so much- we've seen innocent people sent away to bolster a prosecuting attorney's record so many times- and seen attorney's not just defend but get people off on a technicality that they know are scum. It's just a big game to them.

    The law, and it's enforcement, is increasingly arbitrary and random.
  • Re:Sounds like.... (Score:1, Insightful)

    by VTMarik ( 880085 ) on Sunday September 24, 2006 @12:24PM (#16175747)
    This isn't evidence, this is conjecture. If someone was shot, and then the DA held up a picture of you holding a gun similar to the one used to shoot that person, would that be real proof that you did the shooting? No.

    I hope the court does the right thing and disallows the use of these other 'songs,' which may or may not be actual.
  • Re:Sounds like.... (Score:3, Insightful)

    by iamplasma ( 189832 ) on Sunday September 24, 2006 @06:21PM (#16178489) Homepage
    They may have been intentionally sharing a file they owned copyright to (say a 3 meg picture file of themselves) that they renamed to "stones-gloria.mp3" because they are vehemently against copyright infringement.

    Heck, it could be a complete fluke of quantum probability, what with there being a non-zero but impossibly small chance that the file spontaneously formed on the hard drive. However, it's not very probable, just as it's not very probable that it's someone hosting a fake file, doubly so when it's already been established by downloading 11 songs from the person in question that they don't seem to have any problem with copyright infringement. The overwhelmingly probable explanation is that the person who is purporting "Metallica - Enter Sandman.mp3" is in fact hosting that song, and so is infringing on copyright.
  • Re:Sounds like.... (Score:3, Insightful)

    by kimvette ( 919543 ) on Sunday September 24, 2006 @06:42PM (#16178639) Homepage Journal
    Independent law firms are expensive.

    Staff attorneys (of which major labels have many) are not, and in all likelihood they have a bunch of paralegal interns doing the grunt work and the staff attorney probably just signs whatever paperwork they produce and shows up at the token court appearances for the few folks who bother to stand up against the tyrants.
  • by 1310nm ( 687270 ) on Sunday September 24, 2006 @07:59PM (#16179209)
    I want to see exhibit B.

    They seem to target blatant file sharing such as idiots who use Kazaa and the like with no counter-measures. I don't think en masse content piracy is OK, but the extreme measures they're using to fight it is killing the nature of entertainment media. Music and theater used to be enjoyable things to partake in, but nowadays, you have to put on a guilty conscience and resign yourself to the potential, unknown consequences of everything you hear and see.

    - I should be able to share all my music and movies with my immediate family
    - Using my computer should not be a gauntlet legal run
    - Non-profit piracy should NOT have such severe consequences. People aren't selling crack or guns on Kazaa.
  • Re:Sounds like.... (Score:3, Insightful)

    by NMerriam ( 15122 ) <> on Monday September 25, 2006 @12:56AM (#16181227) Homepage
    It would be a violation for you to redistribute what the author makes available to you, unless the author specifically states that it is okay.

    Whether or not Bittorrent constitutes redistribution is something for the courts to decide. Assuming the tracker is authorized by the copyright owner to distribute the material, since it is coordinating who is allowed into the peer group it would make sense to say the tracker is really controlling the distribution from a legal standpoint. But we've seen crazier decisions about what constitutes redistribution and duplication.

    There is also a huge difference between what is technically a violation and what anyone actually cares about. Like traffic violations, most of us unintentionally commit copyright infringement on a regular basis, but 99% of it is pretty harmless an even if the creator was standing right next to you he wouldn't care. Every artist I know photocopies the work of other artists to send to each other and we don't give it a second thought, even though we know it is technically wrong. We just assume the original artist isn't a total douche who goes around suing people for distributing copies of his sketches to other artists. But there are some who don't like it, and people respect that without requiring lawyers to get involved.

Overload -- core meltdown sequence initiated.