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."
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."
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."
NewYorkCountryLawyer writes: "You may recall that back in June a Florida woman counterclaimed against the RIAA for Trespass, Computer Fraud and Abuse, Deceptive and Unfair Trade Practices, Civil Extortion, and Civil Conspiracy involving use of unlicensed private investigators without license, unauthorized access to a protected computer system, in interstate commerce, and extortion, in UMG v. Del Cid. She amended her counterclaims in some respects in August, and the RIAA wasted no time moving to dismiss all six of the amended counterclaims. Judge Richard A. Lazzara of the US District Court for the Middle District of Florida has now issued his decision sustaining five of the six counterclaims, dismissing only the counterclaim for copyright misuse claim. Judge Lazzara's decision (pdf) rejected, in its entirety, the RIAA's assertion of the "Noerr Pennington" defense, since it is inapplicable to "sham litigations", and Ms. Del Cid had properly alleged that the RIAA's cases were indeed "sham"."
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)."
An anonymous reader writes: NPR's programme Marketplace is running a series of segment specials in regard to how the RIAA's lawsuit strategy. The series is available for podcast, with the first being linked here, beginning at time stamp 19:50. While there is little new content for Slashdot readers, could this be the harbinger of the mainstream media and the general public finally taking notice?
NewYorkCountryLawyer writes: "The federal court in New Mexico has rejected the RIAA's ex parte attempt to get information about University of New Mexico students suspected of copyright infringement through P2P filesharing. In his 3-page decision (pdf), Judge Lorenzo F. Garcia held that there was no reason that the proceeding had to be made ex parte rather than on notice to the affected students, and rejected the RIAA's claim that it would suffer "irreparable harm" if the motion were not granted immediately, saying that "it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful." He ordered the RIAA to meet and confer with the University of New Mexico's lawyers to work out a procedure for giving prior notice both to the university and to the affected students. He further pointed out that under the Federal Rules of Civil Procedure, "ex parte proceedings should be the exception, not the rule"."
NewYorkCountryLawyer writes: "The RIAA's attempt to dismiss a "copyright misuse" counterclaim against it has been rejected by Judge Charles L. Brieant, in a White Plains, New York, case, Lava v. Amurao. The counterclaim (pdf) calls for the record labels to forfeit their copyrights on the ground that they "are competitors in the business of recorded music.....[and] are a cartel acting collusively in violation of the antitrust
laws and public policy, by litigating and settling all cases similar to this one together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in an identical manner and through common lawyers..... Such actions represent an attempt....to secure for themselves rights far exceeding those provided by copyright laws......Such acts constitute misuse of copyrights, and lead to a forfeiture of the exclusive rights.....".
The judge also upheld (pdf) a counterclaim for declaratory judgment of non-infringement, and granted the motion for leave to file an amicus curiae brief filed by the Electronic Frontier Foundation."
yuna49 writes: Declan McCullagh reports that US Attorney General Gonzales announced this week that the Bush Administration will support the proposed "Intellectual Property Protection Act of 2007." Among other draconian features, the Act would make "attempting to infringe copyright" a act punishable by up to ten years in prison. Jail time features predominantly in this act including life imprisonment for "anyone using counterfeit products who 'recklessly causes or attempts to cause death....' Justice Department officials gave the example of a hospital using pirated software instead of paying for it." Even more bizarre is a provision that would require the Department of Homeland Security to alert the Recording Industry Association of America if they discover an attempt to import CDs with "unauthorized fixations of the sounds, or sounds and images, of a live musical performance." Only the RIAA enjoys this privileged status; even the Motion Picture Association of America wouldn't qualify.
NewYorkCountryLawyer writes: "Marie Lindor has retained an expert witness of her own to fight the RIAA, and to debunk the testimonyandreports 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."
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......""