RIAA Victim Wins Attorney's Fees 171
VE3OGG writes "Debbie Foster, one of the many caught-up in the RIAA's drift-net attacks who was sued back in 2004 has recently seen yet another victory. After having the suit dropped against her "with prejudice" several months back, Foster filed a counter-claim, and has just been awarded "reasonable" attorney's fees. Could this, in conjunction with cases such as Santangelo, show a turning of the tide against the RIAA?"
Re:Open up your networks! (Score:4, Informative)
Re:Open up your networks! (Score:5, Informative)
Leaving a WAP open for anyone to use is not a viable way to defend yourself from infringement suits concerning your direct infringement (as opposed to indirect infringement, which is what the court was talking about). This is because in civil copyright suits there is no such thing as 'beyond a reasonable doubt.' The standard of proof is 'on the balance of probabilities,' i.e. whatever is most likely (even if only 51% likely as compared to 49% likely), is what happened.
In fact, in order to use the open WAP to help yourself, you'd have to prove that someone else probably is the infringer, and not you. The plaintiff can get a lot of help from the fact that you, as the owner of the WAP, a person who is very often in its range, and probably a frequent Internet user, probably do use it the most and probably are the infringer. It's tough for you to argue that someone else did the deed, especially if you don't have anything to point to other than that it's open. In fact, just because it's open doesn't even mean anyone else ever uses it.
"Precedent" (Score:5, Informative)
Some explaining is in order.
I know y'all aren't lawyers, so I shouldn't expect you to get the lawyer-speak right, but I have noticed lots and lots of misuse of this term.
"Precedent" in the context of a court's decision doesn't mean much at the trial court level.
That's because a court is only bound by the decisions of the courts ABOVE it. Since a trial court is basically the lowest court, you don't have trial courts setting "precedents" that anyone has to follow.
Appeals courts set precedent that the trial courts (aka district courts) must follow within their circuits. The Supreme Court also sets precedent that the Courts of Appeal and district courts must follow. But district courts do not set precedent that anyone else must follow.
I suppose any time someone decides something it can be called a "precedent". But usually, when we say that about courts, we are talking about something that has to be followed.
A court does not have to follow its own precedents, though they tend to do so, absent a good reason to change course. This tendency is called stare decisis [wikipedia.org], and it is not a requirement. The Supreme Court reverses itself fairly regularly, and that's why some people worry that Roe v. Wade (or another decision) might get overturned.
While a district court sets precedent in the sense that decisions in that same court will probably follow it, they do not set precedent that anyone outside of that court's jurisdiction needs to follow. Someone else may or may not find that judge's reasoning persuasive.
Re:"Precedent" (Score:2, Informative)
Re:RIAA already won (Score:3, Informative)
They give a damn.
Re:Open up your networks! (Score:3, Informative)
Human stupidity knows no bounds. We all know that, and frankly I just don't want to worry about it.
My setup is as follows:
2Wire ADSL modem/router WPA enabled, wireless on.
The linksys is configured to use a static IP outside of my local subnet (linksys WAN 192.168.0.1, local 192.168.49.x both mask 255.255.255.0, thus invisible to each other).
Linksys WAN connects to the proxy server eth2, which then connects to the 2wire router in the DMZ zone rather than the normal LAN zone. This assigns the proxy an external IP on eth0. eth1 is on my lan, though normally physically disconnected (more due to a physical port constraint than paranoia, but hey it's secure by default!).
All in all this allows me to share my connection to the world, with no worries that the world can see my local network of machines. plus I can unplug the cable from the linksys to the proxy if I need all my bandwith for a time. It's hilarious to see people connecting to the linksys when there are no connections to the outside world
-nB
Re:unsecured WiFi (Score:2, Informative)
They tried to get Clinton impeached and all he did as pork his intern. I guess the moral standards have been lowered somewhat.
Completely off-topic and this has been covered time and time again, but Clinton wasn't impeached for porking his intern. He was impeached for committing perjury which is essentially the most heinous thing anyone can do if we are to have any hopes of having a justice system that works.Re:"Precedent" (Score:3, Informative)
I didn't say I was a lawyer. I might be.
Regardless, it's quite obvious that YOU are not a lawyer.
"Non Mutual Collateral Estoppel" means the judge's decision is binding in any case in the future the RIAA brings.
Collateral estoppel refers to the principle that a party may not relitigate an issue that has already been determined in another case.
So, the RIAA will not be allowed to relitigate the question of whether Debbie Foster is entitled to attorney's fees.
Whoop-de-frickin-doo!
Re:unsecured WiFi (Score:3, Informative)
And the reason Bill Gates, etc didn't get convicted of perjury is because of the same reason that every convicted "not guilty" defendant isn't charged with perjury - clear fifth amendment problem.
Re:Open up your networks! (Score:3, Informative)
In a criminal trial, a jury must find a defendant guilty beyond a reasonable doubt. But in a civil trial, which is what 99.44% of all copyright infringement suits are, a jury need only find a defendant liable on the balance of the probabilities. It is a much, much lower standard.
A good example would be the criminal and civil trials of OJ Simpson. In his criminal trial, he was able to cause the jury to have a reasonable doubt, and so was found not guilty. But a reasonable doubt is not sufficient in a civil suit, and so a jury did find him liable in his civil trial. To avoid that fate, he would have had to show that he probably didn't do it, rather than what he did show which was merely that he reasonably possibly didn't do it.
In rough mathematical terms, think of the criminal standard for the prosecution as being 99%. All the defendant has to do is show a 2% chance that it wasn't him, and he gets off the hook. But the civil standard for a plaintiff is 51%. The same 2% argument to introduce a reasonable doubt is pointless. Even a 49% argument by the defendant won't suffice.
This is why I see little value in leaving open WAPs as a legal strategy. I don't think it will help much, if at all.