Programmer Challenges RIAA Investigators 238
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."
what the fuck (Score:0, Interesting)
Re:what the fuck (Score:5, Interesting)
From the impression that I gett, I think RIAA is trying rigerously to get a finding against these individuals for copyright infringement, and then get their identity. More likely, they're using these ex parte appearances (where the defendent isn't present) to get the judge to authorize them to be able to obtain the names required in order to bring a proper suit against these people.
I'd say this is pretty similar to a situation where someone breaks into your house, and leaves a very weak trail, and the cops peeter out. So, you sue the person as a John Doe, then try and use that to find out who John Doe is.
Basically, it's like putting the cart before the horse to me. They're suing people before they even know who they're suing. For all they know, they could be suing someone on their legal team, or even the judge!
down with Media Sentry (Score:4, Interesting)
I don't recall hearing the results of any challenge to their data mining, but if they go with the closed source/proprietary code/industry secret response I hope it results in all their "evidence" being tossed.
unfortunately the pdf link is broken or has been slashdoted
Re:down with Media Sentry (Score:5, Interesting)
I absolutely disagree. I'm the registered agent contact for a regional ISP and routinely receive RIAA communications regarding their allegations of offenses within our address space. Here's a few aspects of my ongoing experience with the RIAA and other intellectual property protection parties (mostly publishers in my experience outside of the RIAA):
The appropriate response is a legal one, and mind you, a legal one that has a letterhead of partner names that spans the top of the piece of paper (meaning not a small private practice, but a large firm that is enough to scare the RIAA into understanding your counsel has deep resources that can counterclaim and hurt them).
Another strong recommendation is for all smaller ISPs to provide their upstream with a letter on the lawfirm's letterhead just briefing them on your compliance with the registered agent provision, requesting evidence of their compliance, and a subtle reminder that if they ever fail to follow the law, they'll get to know your counsel really well as you recover damages from business interruption, damage to goodwill and all sorts of exciting, expensive claims.
This letter will probably cost you $300 to $500 depending on your firm, but it'll save your ass. It has done so for us at least two times when the RIAA completely ignored the law and sent its night-school, white-shoe attorneys after our upstream carrier.
Oh... and in my investigation of the John Does, I've usually found P2P running in a bit more than half the cases with parents unaware that Bearshare was loaded by their minor child, and in about a third the cases, no evidence in traffic flows of any P2P (nor any historical data from NIDS monitoring). Not that we'd ever keep such data (don't and have a policy of wiping it weekly).
Re:Is this so unreasonable? (Score:5, Interesting)
The real problem with the state of civil litigation is that corporations are allow to act as a "person". It's a matter of an inequity of resources. A corporation typically has enormous financial, and legal resources compared to an individual.
The real solution is to treat corporations as the commercial organizational entities that they truly are, rather than as persons. For that matter governmental organizational entities also ought to be treated as such.
There needs to be a change to the civil standard between individuals from *proof by a preponderance of evidence* to a more rigorous standard. Proof beyond a reasonable doubt is too strong a standard a civil standard between individuals, or between organizational entities. In a civil case between an organizational entity, and an individual where the organizational entity is the plaintiff, then the *reasonable doubt* standard ought to hold.
Part of the reason for the *proof beyond a reasonable doubt* standard in criminal cases is to prevent malicious prosecution. A high standard for burden of proof in criminal cases reduces the potential for false witness to be used as a means to 'get even with', harass, or intimidate individuals. The high standard lessens the potential impact of 'frame ups'.
Is there anything to stop people having anon conns (Score:3, Interesting)
As in the ISP activates a particular access key to a wireless network in an area of town assuming that X much money is deposited in Y postbox in a brown envelope.
That way the ISP ceases to have the names/addresses of it's subscribers however much they get subpeonaed for them.
Or is that illegal (since they won't have a proper paper trail for where the money is coming from).
Could they handle billing offshore so the data wouldn't be in the US?
Re:Is this so unreasonable? (Score:4, Interesting)
Albert Einstein (Score:2, Interesting)
- Albert Einstein
Re:Is this so unreasonable? (Score:2, Interesting)
No, what sucks is the complex legal system that requires expensive representation. It's a de-facto standard and nothing more, by lawyers for lawyers. Everyone pays their own fees is the epitomy of fairness; it is simply an unfortunate and unavoidable byproduct of the ability of groups to leverage their power over individuals combined with overly complex laws that lead to the current situation. You really can't do anything about the RIAA suing people, in a free country you can generally sue anyone for civil action if it's justified, and currently copying other people's stuff falls under civil law. The problem is that no one has the expert witnesses nor the expert social engineers^W^W lawyers needed to sway the jury.
Probably one could fix the entire legal mess in this country by requiring a jury of legal experts instead of a jury of one's peers. When one's peers are lagging behind some second and third world countries in math and english and reasoning scores, who on earth would want them on a jury? They'll buy the big flashy lawyer's story in a heartbeat, because obviously no one who looks and acts just like them could get the attention of such an obviously famous and important lawyer unless they had done *something*... I welcome the singularity, that's all I can say.
Re:what the fuck (Score:5, Interesting)
Neither. I want the ISPs to have the ability to refuse to disclose customer information to the RIAA unless they have been issued a court order. Note, this isn't EXACTLY what you said in the second part, because it allows that the ISP can choose to disclose the information, if upon their own evaluation the information is warranted.
If the ISP releases the information and it wasn't warranted or permitted, then you have the recourse of acting against them. Also note, this is the way it is now.
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.
That's exactly the point. Who knows it's due process, until the court examines it. John Doe #8 is asserting that the RIAA has not sufficiently followed due process in their actions against him and the other 25 John Does.
It's all a legal battle. In court, everyone says their going to do something, and they try and make their case, and the court either agrees or disagrees, then they move on to the next matter.
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.
Crap, wait... were you agreeing with me or disagreeing with me. Either way, I agree with this statement...
If you were agreeing with me, then it's all good, but if not... um... I don't know what to argue about since we both agree that it's a good thing that the RIAA is being forced to operate under due process.
Re:Is this so unreasonable? (Score:3, Interesting)
It's very common on P2P to get files whose contents and titles have absolutely nothing to do with each other. Much of that is put there by the RIAA, so they cannot deny the reasonable doubt that exists there.
Represent yourself? (Score:3, Interesting)
My guess: At some point, their ISP notified him, they retained a lawyer and the lawyer is making motions and appearing on his behalf.
This works, but only for people who can afford a laywer .
How are you supposed to represent yourself in a John Doe case?
Re:ex parte (Score:5, Interesting)
A few years ago, the US government bullied my country into making new law under the threat of a trade war.
This new legislation allows copyright holders to obtain an "ex parte" court order to enter and search private homes without informing the people living in these private homes if the copyright holder can show that it is "probable" that someone living there has infringed on a copyright. There is no requirement that the police be involved in such searches of private homes (first time this has been allowed in my country), and the law gives the copyright holder a right to be present at the search (never before have the other side in a civil case been allowed to be present during a search of a private home in my country).
This has regularly been abused. In very few cases the "evidence" found in such searches has ever been used in a court of law. Instead most cases have been settled before court by the people searched in fear of the copyright holders releasing information on what was found during the search (legal or not).
I used to have a hard time understanding why some people were thinking the US was imperialistic and why the US had to be opposed in any way possible, but no longer.
Tomorrow it may be my door that the US entertainment industry kicks down.
Does somebody want to take a guess if I still like the US?
Re:Gramm Leach Bliley (Score:2, Interesting)
Anonymous ISP here... good question! My understanding of GLB as explained by the law-speaking guys is that it doesn't usually apply, but we offer a package of enhanced services to community banks including managed VPNs and their auditors are pretty inclusive on who's doing what. It's like SAS-70 - I'd probably never initiate one myself but we have to do it since our customers (and their auditors) expect us to. You'd be surprised how many companies that have no business passing a SAS-70 manage to do so btw...
GLB is probably something good for an ISP to know if it deals with customers in the financial industry.
Does everyone speak gibberish (Score:1, Interesting)
The original poster had it right. It is gibberish.
There's a reason you're taught proper english in high school. Its so you may communicate with the widest variety of people possible. What was written was the equivalent of mumbled slang typed into a computer. What you end up with ugly and incomprehensible.
It was nice of you to try to interpret, but in doing so, you raise just as many questions as the original article.
I realize typing in all that information is difficult. I realize that it requires 5 minutes of thought before typing. But the result is a set of sentences and structures that even someone not as "hip" as you can understand.
You'll do better next time, sport. Thanks for trying though.
Re:Is there anything to stop people having anon co (Score:3, Interesting)
I would also like to see it made clear that corporations, as a condition of their being allowed to operate, have no such right.
It would be interesting to see if a "structurally" anonymous ISP would actually be allowed to operate. There has been pressure on ISPs, and collusion between telcos and the government, to allow taps. But, to my knowledge, there has so far been no legislation forbidding the protection of your customers' privacy through technical means.
If anyone in
There's a *FOURTH* Ammendment?!?! (Score:3, Interesting)
I am sorry, but the number you have dialed:
"4th Ammendment"
has been suspended by the President due to wartime. Please hang up and try your call again in 3 years.
-Eric