RIAA Victims Bring Class Action Against Kazaa
Posted by
Zonk
on Thu Dec 07, 2006 02:22 PM
from the playing-right-into-their-hands dept.
from the playing-right-into-their-hands dept.
NewYorkCountryLawyer writes "In Chicago, Illinois, a Kazaa customer has filed a class action against Kazaa, Lewan v. Sharman, U.S.Dist. Ct., N.D. Ill 06-cv-6736. The lead plaintiff, Catherine Lewan, was a Kazaa customer who was sued by the RIAA for her use of Kazaa, and paid a settlement to the RIAA, and she sues on behalf of others in her position. In her complaint(pdf) she alleges, among other things, that Kazaa deceptively marketed its product as allowing 'free downloads' (Complaint, par. 30); it designed the software in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37); and it surreptitiously installed 'spyware' on users' computers which made the shared files folder accessible to the Kazaa network even after the user had removed the Kazaa software from his or her computer (Complaint, par. 42-45)."
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Of course I don't support copyright, but... (Score:5, Insightful)
This is another case that reminds me of so many court cases and other reasons to ask the State for help:
"It wasn't my anger, your honor, it was the gun!"
"It wasn't my inability to stop eating, your honor, it was the pill!"
"It wasn't my irresponsibility to save for the future, your honor, it was commercial society!"
"It isn't that I refuse to learn a trade and stick to it, it is just fair to pay a living wage!"
Sheesh. Yet another waste of time that will only make the lawyers wealthier and the State more powerful.
Re:Of course I don't support copyright, but... (Score:5, Insightful)
It's always someone else's fault.
Re:Of course I don't support copyright, but... (Score:5, Insightful)
Re:Of course I don't support copyright, but... (Score:5, Insightful)
It is the consumers obligation to know what they are using and how it to be used. As with almost everything else, Kazza, cars, kitchen knives, ropes, chains,/whatever can be used in a way that isn't legal. Furthermore, It could be not legal in one area but legal in another. Or under certain circumstances were maybe downloading an audio file of the garage band next door is and downloading three doors down might not be. This is just like driving a car down the street isn't illegal but driving a car down the street without a license might be.
The only merit I can see from this suit is were it says the shared folders still shares files after you try to remove the software and the software makes it appear that you did. The difference in this and small label on the tobacco packs is that the tobacco companies were force to place the warnings there and actively campaigned to deny the health risks. Kazza has always claimed downloading and sharing someone else's copywriten material without there permission was not legal. They kust claimed that there are legal uses like open source software or situations were the copyright hold places the files online to the shared.
In contrast, that would be like the tobacco companies claiming that cigs make good cleaning agants when used in a certain manor instead of claiming the surgeon general warning were bunk and smoking is healthful.
Re:Of course I don't support copyright, but... (Score:5, Interesting)
We should.
We assume that everyone understands technology and legal issues the way we do, but in fact, I would say that it is very possible (even likely) that most people don't understand the ramifications of using Kazaa.
They should. Robert Heinlein wrote in 1949 in his short story "Gulf":
"If the average man thinks at all, he does silly things like generalizing from a single datum. He uses one-valued logics. If he is exceptionally bright, he may use two-valued, 'either-or' logic to arrive at his wrong answers. If he is hungry, hurt, or personally interested in the answer, he can't use any sort of logic and will discard an observed fact as blithely as he will stake his life on a piece of wishful thinking. He uses the technical miracles created by superior men without wonder nor surprise, as a kitten accepts a bowl of milk. Far from aspiring to higher reasoning, he is not even aware that higher reasoning exists. He classes his own mental proccess as being of the same sort as the genius of an Einstein. Man is not a rational animal; he is a rationalizing animal.
For explanations of a universe that confuses him he seizes onto numerology, astrology, histerical religions, and other fancy ways to go crazy. Having accepted such glorified nonsense, facts make no impression on him, even at the cost of his own life. Joe, one of the hardest things to believe is the abismal depth of human stuipidity.
That is why there is always room at the top, why a man with just a little more on the ball can so easily become governor, millionaire, or college president - and why homo sap is sure to be displaced by New Man, because there is so much room for improvement and evolution never stops.
Here and there among ordinary men there is a rare individual who really thinks, can and does use logic in at least one field - he's often as stupid as the rest outside his study or laboratory - but he can think, if he's not disturbed or sick or frightened. This rare individual is responsible for all the progress made by the race; the others reluctantly adopt his results. Much as the ordinary man distrusts and persecutes the process of thinking he is forced to accept the results occasionally, because thinking is efficient compared with his own mauderings. He may still plant his corn in the dark of the Moon but he will plant better corn developed by better men than he.
Still rarer is the man who thinks habitually, who applies reason, rather than habit pattern, to all his activity. Unless he masques himself, his is a dangerous life; he is regarded as queer, untrustworthy, subversive of public morals; he is a pink monkey among brown monkeys - a fatal mistake. Unless the pink monkey can brown himself before he is caught.
The brown monkey's instinct to kill is correct; such men are dangerous to all monkey customs.
Rarest of all is the man who can and does reason at all times, quickly, accurately, inclusively, despite hope or fear or bodily distress, without egocentric bias or thalamic disturbance, with correct memory, with clear distinction between fact, assumption, and non-fact. Such men exist, Joe; they are 'New Man' - human in all respects, indistinguishable in appearance or under the scalpel from homo sap, yet as unlike him in action as the Sun is unlike a single candle."
"I confess to that same affection for democracy, Joe. But it's like yearning for the Santa Claus you believed as a child. For a hundred and fifty years or so democracy, or something like it, could flourish safely. The issues were such as to be settled without disaster by the votes of common men, befogged and ignorant as they were. But now, if the race is simply to stay alive, political decisions depend on real knowledge of such things as nuclear physics, planetary ecology, genetic theory, and even system mechanics. They aren't up to it, Joe. With goodness and more will than they
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Well, we'll let the courts deci
Re:Of course I don't support copyright, but... (Score:5, Insightful)
I fully agree with this. Copyright violation is not stealing.
But my point wasn't about this very important difference. My point, on which I extensively quoted Heinlein's opinion, is that being considered "intelligent, educated citizens" isn't enough if your education is limited to non-technical issues. This was already true when Heinlein published his story more than five decades ago, and it's much more relevant today.
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Yes, of course, under many circumstances you should! And if your computer causes a fire [dellbatteryprogram.com] you should be jailed for arson.
The fact is that technology m
Re:Of course I don't support copyright, but... (Score:5, Interesting)
Perhaps you have only read his later works, after 1975 or so, and then I agree with you. However, the story I quoted, written in 1949, is one of the most prophetic works of science fiction ever written.
People always complain "where is my flying car", because they don't realize that science fiction isn't about technical details, but mostly about the sociological changes brought by evolving technology. "Gulf" was a fictional story set in an indeterminate future, but actually Heinlein was writing about the quickening pace of evolution of technology in the 1940s and how people were unprepared for that reality.
How do you like one of the lines I quoted about how "political decisions depend on real knowledge of such things as nuclear physics, planetary ecology, genetic theory"? Don't you agree that that sentence is absolutely true today? Whoever knew what "planetary ecology" was about in 1949? Heinlein was a true prophet...
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Because we're rather sure they had nothing to gain by making their PC and Internet slow and an
Re:Of course I don't support copyright, but... (Score:4, Insightful)
I think you are completely missing my point. I agree that people know that stealing is wrong, but what I suggest is that many people may not realize that listening to music they haven't paid for is stealing. Before the massive ad campaigns, I think most people didn't realize that they could be sued for downloading music. I had to explain to a sister-in-law that napster/kazaa was a bad idea because they were stealing and their response went something like: "Well... I listen to it on the radio without paying for it, is that stealing? If not, how is it stealing when I listen on my computer?" This is an educated (master's degree) adult who was confused on the matter.
I don't doubt that people don't steal because it is wrong, but if such a mass of people are stealing could it be possible that they don't realize they are stealing?
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Actually, that isn't exactly what the law says (see below). In fact, there is a great deal of confusion between the verbs is and has been l
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That's ridiculous.
I live in Tempe, Arizona, about a mile from Sun Devils Stadium. The last tim
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Suing someone is now a way of recouping losses rather than a way of seeking justice.
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Re:Of course I don't support copyright, but... (Score:4, Informative)
Justice is for criminal law, civil law is for reperation of damages/lost income/etc, etc. Not for "justice". The only place "justice" comes into is paying some one for their "psycological truama" or "pain and suffering", and those I tihnk are just rediculous anyway. If some one HARMED you then what they did is almost always illegal, and thus is covered by criminal law.
I guess that is just my oppinion on law, probably I am wrong.
Re:Of course I don't support copyright, but... (Score:5, Informative)
The spyware claim (keeping the shared folder shared even after uninstalling Kazaa), if valid, is the only one that might have any merit.
Everything else, though, smacks of "Look what you made me do!" blame-deflection.
Re:Of course I don't support copyright, but... (Score:4, Insightful)
-Eric
Re:Of course I don't support copyright, but... (Score:5, Insightful)
What, then, do you think the courts are supposed to be used FOR...?
And did you really need to construct FOUR strawman arguments that may never have actually been argued in a courtroom? Wouldn't one have been enough to support your fallacy?
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This last strawman argument you have made is highly disingenuous of you.
Yes, it is fair to pay a living wage and not every single person has the opportunities to put themselves into a position for which they can begin to learn, let alone stick to a tra
Re:Of course I don't support copyright, but... (Score:4, Insightful)
So you want to subsidize stupidity?
It kind of amazes me that this has become an argument. Just put the word subsidize in front of any form of funding and put people on the defensive.
So you want to subsidize transportation?
So you want to subsidize schools?
So you want to subsidize the Army?
So you want to subsidize the elderly?
So you want to subsidize Africa?
The basic premise seems to be "Why can't these lazy bastards stand on their own two feet and pull themselves up by their bootstraps!!"
Which ignores the basic fact that no one stands on their own two feet. We're all dependant on one another. I'm a bit tired of the "self made man" fallacy.
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Re:Of course I don't support copyright, but... (Score:5, Interesting)
Almost everything I get from slashdot is worth more than the time I spend writing on it. People respond to my posts, and I use those responses to better understand various topics and items -- politics, tech, lifestyle. This is my business, so the input I gather here helps me cultivate a better product for my customers, thereby raising my income. I would say that I probably receive more out of the responses here that I would doing any continuing education or external study. Whereas most educations are antiquated and take years to catch up, slashdot is NOW and tells us about the current "geekthink." I don't think one can spend their time better if they're consultants. You'd also be shocked at how many employers read slashdot regularly, and take steps to hire those who have interesting viewpoints.
A fool with his money is the fool that doesn't think about their return on every purchase -- whether a financial profit, emotional profit or even time-savings. For me, I receive the education and opinions of thousands. For $10 and an hour a day of time invested.
Re:Of course I don't support copyright, but... (Score:4, Insightful)
Very little. My reason for subscribing is (in order of importance):
1. To support the site with my money, showing that it has value.
2. To generate a tiny level of respect for those who also subscribe or give a subscriber bonus to their own personal mod modifier.
3. Receive the chance to read articles before they're slashdotted.
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I'm pretty sure his money towards slashdot got him nothing at all. He gets to see stories an hour earlier when most peopl
The Beginning of The End... (Score:2, Insightful)
In other news... (Score:4, Funny)
She might as well... (Score:5, Insightful)
Use Your Eyes! (Score:4, Informative)
Last time I installed a piece of software like Kazaa, it stated what it was going to do at each step, and clearly explained what would happen, and that I shouldn't share files to which I didn't own the copyright.
Sueing for being stupid is... well, stupid.
It's all there.... (Score:3, Informative)
So much for personal responsibility (Score:2)
"I didn't know that I was downloading copyrighted files. Their software should have prevented it."
Ridiculous. (Score:5, Insightful)
I bet these same people all felt like devious little rule breakers when they were doing all that copyright violation, secure in the knowledge that no one could ever catch them.
I can kinda see how the record companies can win a suit against the p2p providers, saying that their software enabled all these people to violate copyright law, but how the hell can all these people expect to win a suit against a company whose software enabled them to break the law? Kazaa's EULA spelled out that the software should only be used for legal purposes, but even if it didn't this will die because there is a huge amount of precident in prohibiting companies from being sued when their products were used in the commission of crimes (hello, gun manufacturers).
If only common sense were more common.
Re:Ridiculous. (Score:5, Insightful)
It's more like suing your drug dealer after you go to prison for getting caught with a rock.
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It's more like suing your drug dealer after you go to prison for getting caught with a rock.
A surprisingly good analogy. The only claim that really has any merit IMO is the spyware claim. Using the same analogy, can you sue your drug dealer for putting r
Going after the wrong one... (Score:3, Interesting)
Look, I hate RIAA as much as anyone (Score:3, Insightful)
I have a lawsuit idea. (Score:5, Interesting)
I am going to buy a gun, completely ignorant of how to use it, and start playing around with it. If someone gets shot (including myself) I will sue the company that made it. Horray for logic!
Customer? (Score:5, Insightful)
I call bullshit on the fact that the person claims she didn't know how kazaa worked. Its explained right here [kazaa.com] for cryin' out loud.
All this person is doing is trying to get their money back that was extorted by the RIAA. Her lawyer probably weighed the difficulty of a counter-suit against the RIAA and suing Kazaa. Guess who won.
I call shenanigans on this one. Tagged: Traitor
Any app that installs spyware should be sued! (Score:5, Interesting)
Yeah-yeah, I know it may be mentioned in the license agreement, but do you guys read every license agreement that comes across your screen? Besides, if Ford put a note in the glove box of every car that said, "Vehicle will send adds to your TV set at random intervals, even after vehicle is sold." would that save them from lawsuits? Would it make you guys feel better if the government put a label on all phones saying that they might be listening?
Only in America. (Score:4, Insightful)
If you had a legal system of some righteousness, you would force someone that files a case against another person (unless for crimes that involve violence) to pay the defendant legal costs in case the defendant was found innocent... that way, all those stupid legal cases we see in America would never have been brought to justice in the first place
Re:Only in America. (Score:4, Interesting)
Just as an aside, you might also want to consider that your complaints about "illiterate people from the streets" would carry more weight if you used complete sentences, correct punctuation, and proper capitalization.
Is Ignorance Ever An Excuse? (Score:5, Interesting)
Ha.... the U.S. Justice system (Score:3, Insightful)
Seriously, does she really expects us to believe that she did not know it was illegal, that she could get sued over it ? Seriously ? Nah, she knew full well but much like everyone doing this, we just assume RIAA is not gonna come for regular people like us because its not worth it.
So now she does get sued and she says, was that illegal ? oh im sorry, Kazaa never said that! *pointing finger* damn you Kazaa, you got me in trouble. Now, not only will I sue you but I'll sue you on behalf of all people who didn't know (whisper:this way i can get more money)
But just because the system allows it, tons of folks are suing each other for stupid reasons and to make a quick buck.
My wife is a lawyer and I once asked her why we seldom see these things happening in canada. That's because the justice is different in that here, to win a cause you need a damage, a fault and the correlation between the two. Most of the time, people cannot make a strong argument in the "correlation between the two" part and the case ends there.
If my memory aren't failing me... (Score:3, Informative)
If my memory doesn't fail me, Kazaa indeed guided the user through a wizard at the first run, where among other things you configured network settings, and which folders to share. And with a "shared files" folder activated by default, while showing that fact to the user as well.
I think you missed the point..... (Score:3, Insightful)
What this case is trying to do, in a round about fashion, is to set the stage for other actions.
If this person wins this case it opens the doors for alot more. Once it can be shown in court that Kazaa either misled or outright lied to its users, it can then be shown that Kazaa was AIDING AND ABETTING the the criminal violation of copyright laws. Once that takes place, then Kazaa itself can be held liable for CRIMINAL actions.
It would not surprise me in THE SLIGHTEST that the RIAA is behind this themselves. Its all about "precedence". Once you win a small case, its only makes it that much easier to use that small case as a foothold in larger, farther reaching and far more serious cases.
While I believe that the person filing the suit, and everyone else that steals copyrighted material should be prosecuted, I also believe that anyone that made it possible for them to do so should be held accountable as well.
Ignorantia juris non excusat (Score:3, Informative)
KaZaA provides a tool. How you choose to use that tool is up to you. If you live in wilful ignorance by choosing not to read the instructions/disclaimer/EULA and it gets you into trouble later, that's your own problem. It's much akin to trying to sue McDonald's for you burning yourself with their coffee after they've changed all the cups to read "Caution! Contents are hot!"
29. The Sharman Defendants deceptively marketed the KaZaA Product as a P2P service as allowing "free" downloads.
That's not deceptive marketing, that's the truth. You don't pay a fee, either subscription or per download, to download files through their service.
31. The Sharman Defendants deceptively marketed the use of the KaZaA Product as legal.
KaZaA is legal; what people choose to do with it may not be legal in certain jurisdictions. There is a major difference. It's like saying that the postal service is illegal because sometimes people use it to ship illegally obtained merchandise.
32. The Sharman Defendants knew that most users of the KaZaA Product would use the KaZaA product to catalogue and store digital copies of copyrighted sound recordings and films. 33. The Sharman Defendants encouraged, invited, and solicited such conduct from its public, its customers, and users of the KaZaA Product.
You'll note that the claim fails to mention that items 32 and 33 aren't necessarily illegal. It may be implied, but the reality is that every piece of media created since the invention of copyright is inherently copyrighted. This does not mean that copying this material is automatically illegal; that's up to the creator to decide. There is a lot of media out there that is provided free for the sharing, so long as you follow certain terms and conditions (like not claiming the work is your own).
[KaZaA] designed the software in such a manner as to create a shared files folder and make that folder available to anyone using KaZaA, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37)...
Correct me if I'm wrong, since it's been a while since I used KaZaA, but when you set install and set up the program, doesn't it let you pick your shared folders? Even if it doesn't, you can change it very easily through the program's settings. Even if you don't know this when you originally install the program, KaZaA lets you see who has been downloading what files from your computer. If you don't want people to download from you, wouldn't you change your settings as soon as you see the list of people trying to copy your stuff?
[KaZaA] surreptitiously installed 'spyware' on users' computers which made the shared files folder accessible to the KaZaA network even after the user had removed the KaZaA software from his or her computer (Complaint, par. 42-45)...
This is the only complaint that I can see possibly holding water, if it is true. To lend verity to their case, they'd have to test every version of the software to see which ones had this "spyware," and make sure that every person who was joining the class action suit on the spyware basis used or has used the spyware-affected versions.
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that's true; however, that's not the complaint. she's suing over deceptive advertising practices, not false advertising. specifical
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