Programmer Challenges RIAA Investigators

NewYorkCountryLawyer writes "In court papers filed today in Manhattan federal court, programmer Zi Mei has slammed the investigation on which the 'ex parte' orders obtained in the RIAA's cases against consumers are based. Armed with Mei's affidavit, a midwesterner -- sued in Atlantic v. Does 1-25 in New York City as 'John Doe Number 8' -- has asked the judge to vacate the 'ex parte' order on the ground that the RIAA doesn't have the evidence it needs to get such an order. If Doe wins, the RIAA's subpoenas to the ISP, for its subscriber's identities, will be thrown out."

Careful about the ex parte whooping

[TheSkyIsPurple]

The ex parte orders are being used to figure out who exactly to sue... with out them there's no way anyone would be able to have any sort or recourse since ISP's tend not to share subscriber info without a court order. They could require that each ISP be formally sued for the info, in which case they have to come in to court... RIAA wouldn't have much of a problem with this, but ISPs would lose out HUGE time. The ISPs still have some recourse after the order is entered as well, and as we see here, even the person getting sued can take some action as well as soon as they are identified. (Some ISPs will notify you before they answer, and give you a chance to try to quash before they answer) Alot of the rest of their tactics are crap, but this is a legitimate use of ex parte, and I dread what the alternative would be.

Re:Careful about the ex parte whooping

[Krach42]

While I agree that this is what ex parte is intended for. It's perfectly reasonable for the person to fight against it, and ask, is this really what we should be allowing?

But in some ways, it could be misused. Say someone walks past my front yard and throws a bag on my lawn. I didn't see them, but when I get the bag, there's a reciept in there with a date and time of where he bought something. If I wanted to sue the person should I be allowed to ex parte sue them as a John Doe on the first hand, so that I can then contact the store and force them to reveal who the person was?

The question is just how much justification need be shown to grant an ex parte order of this nature (they're arguing it's insufficient).

Is this so unreasonable?

[Anonymous Brave Guy]

Right, let's be clear. I think a lot of behaviour by the RIAA and its ilk is disgusting.

Now that I've got that little disclaimer out of the way, let me ask: is this use of ex parte tactics really so unreasonable? From the RIAA's point of view, the law has been broken. They just can't find out who did it to take legal action against them directly, because the ISPs and such (quite rightly) won't disclose confidential information to the RIAA on demand.

So, the RIAA do what any sound legal system should require them to do if they want to proceed: they must go to a court, and make a case that there is a reasonable need for them to have that information, and ask the court to give them the authority to get it. The court can consider their argument -- which, if they've got information that someone was swapping songs, almost certainly illegally, is a fairly solid one -- and grant the permission if it finds it appropriate.

At that point, no individual has yet been brought to court to face any claim, so no individual has been harmed. The RIAA just has a name, and it's up to them to demonstrate, in a separate court action with the defendant given due process, that the named person committed some illegal act and should be required to pay compensation or whatever.

Now, personally I think the US "everyone pays their own fees" system sucks, because it's wide open to abuse by large and well-funded organisations in this sort of context, but that's a separate problem. With US law as it is right now, what would be a more reasonable way for one party that has genuine evidence that they may have been damaged by some other, unknown party to seek fair compensation than by asking the courts to agree with them based on their evidence to date, and to enable them to find the person likely to be responsible so that they can be properly taken to court?

Re:Ex Parte

[TheHawke]

A Big Blow? It might be the Mike Tyson-style knockout punch that the defendants have been looking for. It will establish a precident for the rest of the "John Doe" lawsuits that the *AA's have slathered all over the nation.

About bloody time someone found a way to cripple these borderline-illegal 'suits once and for all... That is, IF the judge sees it the right way.

Re:what the fuck

[InvalidError]

Some ISPs will not release customer information unless a court order tells them to... and this is how things should be.

To get these court orders, RIAA/MPAA/etc. usually have to file lawsuits. The *AAs know the ISPs have the customers' info but until they get the court orders, all they have to work with are activity logs showing people from certain IPs accessing illegal content at specific times. Once they have the order, the ISPs are legally required to tell them who owned those IPs at those specific times and amend the lawsuits with the actual names.

Which do you prefer? ISPs readily disclosing customer info to *AA leading the *AA to extort people directly or ISPs refusing to disclose info until forced by the courts during the normal discovery process? Following due process at least prevents the *AA from picking specific targets and also forces them to more thoroughly investigate each case they plan to file. Having to file formal lawsuits also prevents them from pretending it never happened when cases turn out to be dead-ends or backfire.

The *AAs fought long and hard to circumvent due process but they failed, now they're forced to sue Jon Doe by following due process... everybody should be happy that the *AAs are finally using the legal system the way they are supposed to instead of trying to work around it.

Also..EFF

[redwoodtree]

Also, one more thing before I go back to the slugs...

It would have been nice to mention the Electronic Frontier Foundation and how much they deserve YOUR support (as well as mine... and everyone elses.) For it is through the EFF that we have even the slightest hope of regaining some sanity in the digital world.

Re:Atlantic vs DOES 1-25

[rodentia]

John Doe #8 has also moved [blogspot.com] to dismiss this aspect of the suit.

You are right, it is an inside out class action, formed under Rule 20(a) of the Federal Rules of Civil Procedure. Doe #8's lawyers essentially argue that any link between the 25 co-defendants is fortuitous and insufficient to grant the jointure. The rule is designed to collect partners or other's who jointly benefit from the transaction or actions at issue.

Don't get too excited

[Anon E. Muss]

The motion to sever the defendants may well succeed. In that case the RIAA will be forced to file separate lawsuits against each John Doe, costing them additional filing fees. This may slow them down for a few nanoseconds, but it won't stop them. They'll refile.

The motion to quash the subpoena is more interesting. Can the RIAA document the alleged copyright infringement with greater specificity? If not, the subpoena could be quashed, and this John Doe will skate. That won't stop the RIAA from suing other John Doe's using similarly flawed evidence. It will still be up to each John Doe to fight back, using their own time and money.

Remember, it's the legal system, not the justice system.

Re:ex parte

[Eccles]

And you wonder why so many Americans seem so fond of the Second Amendment... (Not to mention the Fourth, of course.)

This always happens....

[Djarum]

Around Thanksgiving I was having this exact idea while talking to a friend of mine.
I am quite a law buff and I was arguing that the "ex parte" orders were illegal and if someone were to challenge them they would win. The counter that "well the person is breaking the law", you would have to remember that even though you have proof of a crime you can not arrest nor charge another.

Lets say your neighbour is making drugs next door. You see crackheads walking in and out of the house. There is weird chemical smells, and empty bottles of chemicals around. Hell lets even say he tried to sell you some and have it on video tape. Can you go across the street, knock down his door, arrest and charge him with a crime?

No, of course not. You call whatever Backwoods Nazi Law Enforcement Agency you have, they will conduct their own investagation, and then if they have enough evedence they knock down his door, arrest and charge him.

Now if the RIAA would want to follow the laws put into place in the United States they would report the person to the FBI's Copyright Infringement division and let them do their own investigation and charge the person with a crime. Most likely the FBI would take a look at the 13 year old with 300 mp3's on their drive and file it away far, far away.

The person that said that the RIAA should be charged under the RICO Act is indeed onto something. It is a form of racketeering. Also the RIAA should have to be forced to show the actual loss in revenue from each song, and where do they come up with the numbers they sue people for.

RIAA & Due Process?

[TubeSteak]

You and the GP seem to be making the mistake in assuming that the RIAA is working according to the letter of the law.

The news is only reporting the number of John Does being sued.

I think it would be naive to assume that there aren't a fairly large number of people who got turned in by their ISP & settled instead of being sued first.

Re:Gramm Leach Bliley

[TubeSteak]

ISPs are common carriers you nimrod.

They no more provide financial services than my telephone company provides financial services when i call my bank to check on my accounts.

Summary:
ISP != financial service
Telephone Company != financial service

If you really want to parse words, my ISP provides a service in return for financial reward. But that is neither here nor there.

Re:ex parte

[Ossifer]

Sounds like a Danish problem to me--why blame the US? "Under the threat of a trade war" with an E.U. country? That happens every day...

Re:ex parte

[Adams4President]

Yeah that seems to be a popular tactic of the tyrannical leaders of certain third-world countries these days. Pass a law that gives said leader more power and blame the US for "forcing" him to do so.

Re:ex parte

[cnerd2025]

Sorry for looking out for our own interests. Oh, wait, Denmark and the EU does the same thing. And the threat of "trade war"? Is Europe really so arrogant it thinks it has some "God-given" right to trade with the US? We can trade with or without whomever we wish and cease at any time.

If you read even the description, you'd realize that the "ex parte" order is really "ex parte Doe", used to execute the Writ of Habeas Corpus. "Ex Parte" is generally illegal in the US, and should be. This "ex parte Doe" means that the Doe, in this case the accused, believes that he or she is being held without legal cause. "Ex parte" basically means that one party is using an unfair advantage over another and thus justice is not being served.

I'm no fan of the entertainmaint industry. However, keep something in mind, friend: every state, be it municipal, regional, national, or supranational, has the right to look out for itself. The EU sure does. If you have beef with how the US executes trade, then do something about it. We aren't holding a gun to your head to force something upon you. You elected the leaders who passed your laws. We didn't set up some revolution in Copenhagen or Brussels to execute our will. Your government chose that trade with the US was more important. If you dislike what your government does, then elect new people. And if you dislike the entertainment industry, then don't buy their things. You didn't make any coherent argument against them. In the US, the RIAA oversteps its legal rights, and therefore legal injunctions must be placed on them. But they are a trade union, and they do have some legal rights. Your arguments place them in no violation of yours or anyone else's rights, nor the overstepping of their rights.

Now you make some very very incoherent arguments about the US "breaking down your door". I don't know how it works in Europe, but in the US, the police run all searches and seizures. And issuance of search and seizure warrants are Ex Parte, for good reason. Entertainment industry thugs don't just break and enter, searching for "copyright violations". That is strictly against the US Constitution.

Please, I'm tired of people blaming the US for this or that or the other thing, when the real problem lies in the peoples' own country. We have messed up lots of stuff, but to bitch at us just means that you're too lazy to do something about it.

Re:ex parte

[inc_x]

Yes, I do indeed. Because despite all the second amendment puff talk, I don't see any organized armed resistance in the US against illegal police searches or government agencies who are overstepping the law at the direction of the US president. I do read about the occasional meth addict shooting at the police and/or his neighbours, I have never seen that having any positive effect though, such person tends to end up either getting shot himself or spending 20+ years in jail. Can you explain me how the second amendment helps americans?

Re:Ex Parte is not applicaple here

[Anonymous Coward]

He may well lose. But one of the issuses here is that the RIAA failed to present sufficient evidence that the named John(s) Doe were involved.

In your rental car analogy, Hertz would be compelled to release the renter's identity, but only if there was sufficient evidence to show the car was involved in the accident. However, this is an imperfect analogy for a number of other unrelated reasons.

Never take legal advice from someone who can't spell lawsuit or illegal.

Re:ex parte

[TallMatthew]

Organizing an armed resistance against the police or the US government is an easy way to make your life go bye bye, either via death or imprisonment. Throwing a shot at an elected official or law enforcement is frowned upon in these parts. Revolution is a romantic idea, but in practice it's brutal. There are no soundtracks playing in the background, no Mel Gibson, no speeches. Just a bunch of people getting smushed.

I like it here, but I like doing my thing as well. I'll do it somewhere else if I have to but I don't think it's going to come to that. Unless Dick Cheney is our next president .... shudder. One would hope they could put an end to recent overstepping of the second amendment in the court of public opinion, the press or even in the political arena, where it's supposed to be controlled. If they don't, there will be decisions to be made, but the backlash has been significant enough so far to expect some curtailing will take place.

Re:ex parte

[Procyon101]

Of course no sane person is going to directly attack the US government with handguns. Of course that is silly.

The purpose of the armed populace is as a deterrent. The government cannot suppress the population by force without armed conflict. Armed conflict against their own homes causes dissent amongst the military, splitting it into rebellious factions and leading to greater conflicts, eventually overthrowing the government by it's own military since militia siding with the oppressive government face hostile evironments even without direct conflict whereas the populaces militia is supplied and reinforced at every turn. Because this is such a stupid position for a government to get itself into, it would never do so as long as the populace remains armed. So the point of ownership is not to fight the US military head to head, but to ensure you never have to.

Re:what the fuck

[InvalidError]

There is a law: the Safe Harbour provision in the common data carrier law. To be eligible for Safe Harbour protection against liability, ISPs must track IP address allocation (who owned which IPs and when) as an absolute minimum.

ISPs have to hold relevant records when they receive subpoenas but they may choose not to disclose anything to the requesters and there is nothing that the requesters can do about it in this case - this is privacy protection... I can imagine customers sueing their ISPs for breach of privacy and facilitating the *AA's targetted strong-arming settlement strategy. The only thing that should make ISPs disclose customer information is court orders issued by a judge after a formal lawsuit is filed and accepted so the *AAs would not get to pick their targets and pretend it never happened when they hit a tougher target than they bargained for. That would be the genuine Jon Doe due process - not getting to know the target until deposition day.

IANAL either... only an idealist.

Re:ex parte

[Procyon101]

This might be a sole reason for a clause written pre-revolution, but the constitution is a post-revolutionary document written by a new government that just rose up against it's previous government through the use of 1) A rapidly formed and often self-armed continental government 2) No small use of conscriptionary forces and 3) Individual unorganized small guerilla forces. If we look at the mindset many of these people had as being exemplified in the Declaration of Independance a few years previous, they believed that in EVERY government there comes a time that the populace must rise up by force to reform it. With these facts in mind, I severely doubt that the only reason the fledgling government wanted to ensure that there remained the right for the populace to arm themselves was to protect small communities from the occassional indian raid (although it might be a considered tertiary benefit).

Additionally, most of the maurauding indian raids were not a product of the indians, but rather the alliance of major tribes with the British in the days leading up to the war and through the war of 1812. The Americans weren't relying on the British to defend them, as the indians were mostly British allies anyway.