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The Courts

Submission + - Oregon AG Seeks to investigate RIAA tactics

NewYorkCountryLawyer writes: "Turning the tables on the RIAA's attempt to subpoena information from the University of Oregon about the identities of the university students, the Attorney General has now filed additional papers requesting permission from the Court to conduct immediate discovery into the RIAA's 'data mining' techniques, such as the use of unlicensed investigators, the turning over of subpoenaed information to collection agencies, the obtaining of personal information from computers. The AG pointed out (pdf) that "Because Plaintiffs routinely obtain ex parte discovery in their John Doe infringement suits.....their factual assertions supporting their good cause argument are never challenged by an adverse party and their investigative methods remain free of scrutiny. They often settle their cases quickly before defendants obtain legal representation and begin to conduct discovery...... and have dropped cases, such as their case against Tanya Andersen, in which their methods and practices have been challenged through counterclaims...... While the University is not a party to the case, Plaintiffs' subpoena affects the university's rights and obligations. Plaintiffs may be spying on students who use the University's computer system and may be accessing much more than IP addresses." As one commentator succinctly put it, "They'll be going bananas in RIAA land" after reading this filing."
The Courts

Submission + - Free Software Found. reaches out to RIAA victims 2

NewYorkCountryLawyer writes: "In what has been termed the "the RIAA's worst nightmare", the Free Software Foundation has announced that it is coming to the aid of the victims of RIAA lawsuits, by establishing an Expert Witness Defense Fund to assist defendants in RIAA cases. The purpose of the fund is "to help provide computer expert witnesses to combat RIAA's ongoing lawsuits, and to defend against the RIAA's attempt to redefine copyright law." The funds will be used to pay fees and/or expenses of technical expert witnesses, forensic examiners, and other technical consultants assisting individuals named as defendants in non-commercial, peer-to-peer file sharing cases brought by the RIAA, EMI, SONY BMG, Vivendi Universal, and Warner Bros. Records, and their affiliated companies, such as Interscope, Arista, UMG, Fonovisa, Motown, Atlantic, Priority, and others."
The Courts

Submission + - Rochester judge holds RIAA evidence insufficient

NewYorkCountryLawyer writes: "Judge David G. Larimer, presiding in Rochester, New York, has denied an RIAA application for default judgment on the ground that the RIAA's evidence was insufficient, in that it contained no details of actual downloads or distributions, and no sufficient evidence that defendant was in fact Kazaa user "heavyjeffmc@KaZaA". The decision (pdf) concluded that "there are significant issues of fact regarding the identification of the defendant from his alleged "online media distribution system" username". (In case you're unfamiliar with the term "online media distribution system", that's because it is a term the RIAA coined 4 years ago to describe p2p file sharing accounts in its lawsuits; the term is not known to have been used by anyone else anywhere else.) In August a similar RIAA default judgment motion was denied on the ground that the pleadings failed to allege sufficient factual details supporting a claim of copyright infringement, in a San Diego, California, case, Interscope v. Rodriguez."
The Courts

Submission + - RIAA Targets New Colleges, Still Avoids Harvard

NewYorkCountryLawyer writes: "Billboard reports that the RIAA has filed its eighth round of "early settlement" letters to twenty-two colleges. Continuing its practice of avoiding Harvard, the RIAA's new round does not include any letters to that institution, where certain law professors have counseled resistance to the RIAA and told the RIAA to "take a hike". The unlucky institutions on the receiving end of the 403 new letters include Arizona State University (35 pre-litigation settlement letters), Carnegie Mellon University (13), Cornell University (19), Massachusetts Institute of Technology (30), Michigan State University (16), North Dakota State University (17), Purdue University — West Lafayette and Calumet campuses (49), University of California — Santa Barbara (13), University of Connecticut (17), University of Maryland — College Park (23), University of Massachusetts — Amherst and Boston campuses (52), University of Nebraska — Lincoln (13), University of Pennsylvania (31), University of Pittsburgh (14), University of Wisconsin — Eau Claire, Madison, Milwaukee, Stevens Point, Stout and Whitewater campuses (62)."
Security

Submission + - Prof. Johan Pouwelse to Take on RIAA Expert

NewYorkCountryLawyer writes: "Marie Lindor has retained an expert witness of her own to fight the RIAA, and to debunk the testimony and reports of the RIAA's expert" Dr. Doug Jacobson, the "reliability" of which has been challenged by Ms. Lindor in her Brooklyn federal court case, UMG v. Lindor. Ms. Lindor's expert is none other than Prof. Johan Pouwelse, Chairman of the Parallel and Distributed Systems Group of Delft University of Technology. It was Prof. Pouwelse's scathing analysis of the RIAA's MediaSentry "investigations" (pdf) in Foundation v. UPC Nederland in the Netherlands which caused the (pdf) courts (pdf) in that country to direct the ISP's there not to turn over the names and addresses of their subscribers, thus nipping in the bud the RIAA's intended litigation juggernaut in that country. Prof. Pouwelse testified in the Netherlands that the RIAA's MediaSentry investigation — upon which Dr. Jacobson relies and the veracity of which he 'assumes' — 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.....[failing to take] computer hygiene precautions ..... [with respect to] multi-peer downloading contamination. Therefore, [making it] ... difficult to establish the contribution of the various IP-addresses ...[it being] possible that some IP-addresses contributed 0 Bytes to an actual download, [with] ... involvement [but] ...no actual contribution". The notice of designation of expert witness and his curriculum vitae are here."
Music

Submission + - Harvard Law Prof Urges University to Fight RIAA

NewYorkCountryLawyer writes: "Distinguished Harvard University Law School Professor Charles Nesson has called upon Harvard University to fight back against the RIAA and stand up for its students: "Students and faculty use the Internet to gather and share knowledge now more than ever....Yet "new deterrence and education initiatives" from the Recording Industry Association of America (RIAA) threaten access to this vibrant resource. The RIAA has already requested that universities serve as conduits for more than 1,200 "pre-litigation letters." Seeking to outsource its enforcement costs, the RIAA asks universities to point fingers at their students, to filter their Internet access, and to pass along notices of claimed copyright infringement. But these responses distort the University's educational mission....... One can easily understand why the RIAA wants help from universities in facilitating its enforcement actions against students who download copyrighted music without paying for it. It is easier to litigate against change than to change with it. If the RIAA saw a better way to protect its existing business, it would not be threatening our students, forcing our librarians and administrators to be copyright police, and flooding our courts with lawsuits against relatively defenseless families without lawyers or ready means to pay. We can even understand the attraction of using lawsuits to shore up an aging business model rather than engaging with disruptive technologies and the risks that new business models entail...... But mere understanding is no reason for a university to voluntarily assist the RIAA with its threatening and abusive tactics. Instead, we should be assisting our students both by explaining the law and by resisting the subpoenas that the RIAA serves upon us. We should be deploying our clinical legal student training programs to defend our targeted students......""
Music

Submission + - Judge Says RIAA "Disingenuous", Decision S

NewYorkCountryLawyer writes: "Judge Lee R. West in Oklahoma City, Oklahoma, has rejected the arguments made by the RIAA in support of its "reconsideration" motion in Capitol v. Foster as "disingenuous" and "not true", and accused the RIAA of "questionable motives". In the decision (pdf), reaffirming his earlier decision that defendant Debbie Foster's is entitled to be reimbursed for her attorneys fees, the Court, among other things, emphasized the Supreme Court's holding in Fogerty v. Fantasy, Inc. that "because copyright law ultimately serves the purpose of enriching the general public through access to creative works, it is peculiarly important that the boundaries of copyright law be demarcated as clearly as possible. Thus, a defendant seeking to advance meritorious copyright defenses should be encouraged to litigate them to the same extent that plaintiffs are encouraged to litigate meritorious infringement claims." Judge West also noted that he had found the RIAA's claims against the defendant to be "untested and marginal" and its "motives to be questionable in light of the facts of the case"; that the RIAA's primary argument for its motion — that the earlier decision had failed to list the "Fogerty factors" — was belied by unpublished opinions in which the RIAA had itself been involved; that the RIAA's argument that it could have proved a case against Ms. Foster had it not dropped the case was "disingenuous"; and that the RIAA's factual statements about the settlement history of the case were "not true". This is the same case in which an amicus brief had been filed by the ACLU, Public Citizen, EFF, AALL, and ACLU-Oklahoma in support of the attorneys fees motion, the RIAA questioned the reasonableness of Ms. Foster's lawyer's fees and was then ordered to turn over its own attorneys billing records, which ruling it complied with only reluctantly."

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