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?"
Open up your networks! (Score:5, Interesting)
However...
The bit that caught my eye, though, was the quote
Me like. If that can be said to be a precedent, it means anyone with an unsecured WiFi network has a strong argument for not being held liable for anything done on that network - it's open, after all. Anyone could drive by, park, download [insert bad stuff here], and drive off. Unless the prosecution has video surveillance of your house/apartment, it'll be very hard to *prove* who did what.
It seems the best protection may be none at all. How very Zen.
Simon
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Re:Open up your networks! (Score:5, Funny)
Oh gods, not "think of the children" again! (Score:2, Insightful)
Stop thinking about the children. Think of the actual facts. If you apply more feelings than logic, you know you're on the way to do someone wrong.
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Re:Oh gods, not "think of the children" again! (Score:5, Funny)
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(And for those of you who can't tell, that was all sarcastic)
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And terrorists.
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Re:Open up your networks! (Score:5, Interesting)
Why is that? Is it illegal to have an open access point?
I definitely know how to secure my wireless network, but I choose not to. I want people visiting my place to be able to easily connect to my network and the internet. Exchanging lengthy WPA keys every time is too much of a hassle.
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Today? No.
Tomorrow?
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Now, imagine I was evaluated on my conviction rate - man I'd LOVE strict liability.
-GiH
unsecured WiFi (Score:5, Interesting)
Now, that said, if they get a search warrant and strip your house bare and find that 'backup' cd hidden away with one of the files in question, your quite logical defense melts away like an ice cube in hell.
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Re:unsecured WiFi (Score:4, Interesting)
Re:unsecured WiFi (Score:5, Insightful)
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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: (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.
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Impeach doesn't mean what you think it does.
Copyright infringement is a civil matter (Score:2)
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And there is that rule that if its over a certain amount it does become a criminal manner. This is why they claim such silly amounts of damages for a SINGLE file.. To get it pushed over that line almost automatically.
Re:Open up your networks! (Score:5, Insightful)
I can see next year, really early
HR 2008 - 0002 "Secure Communication Relating to Existing Wireless Environment Detection" Act.
(i) Owners of a wireless network will be held accountable for all civil and criminal liabilities associated with any unauthorized copyrighted materials on the network....
Re:Open up your networks! (Score:5, Funny)
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I do agree with you, but I think CAN-SPAM is still the winner. It says what it does and does what it says.
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Let's see them modify the law to state "...will be held accountable unless you're a big company".
I guess that's ultimately what will happen, only with wording that will make it less obvious. Sadly, the United Stat
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.
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My open WAP could (and has) been used like a cheap whore by many people.
Alas, the transparent proxy has thwarted many attempts at pure stupidity (using my WAP to do your banking is asking for it), thus https is blocked by default (as is port 21, and 25, and bittorrent).
-nB
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-nB
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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 a
I like that setup :-) (Score:2)
I'm asking because I'm toying with the idea of setting up something similar, but leave it open for Skype and maybe some sites like the BBC and Dilbert. In my opinion a WiFi port should never give access to an internal network without a VPN layer.
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Firewall is handled both by the 2Wire's internal firewall for the LAN and WPA'd WiFi, and other than the squid proxy there is no firewall for the open WiFi port.
I used to use a Cisco firewall but it croaked.
-nB
Distracting hackers (Score:2)
The idea wa
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block the standard port ranges, shape traffic for multiple host connections trafficking datagrams of the proper header.
Or like me, have the proxy corrupt any file download ending in
works well enough for me.
-nB
Re:Open up your networks! (Score:4, Insightful)
In any case, I don't think "We noticed somebody from this IP address sharing this song at XX time, and the ISP's logs said that was the defendant" is enough. That's why, after all, the RIAA subpoenas the disk drives.
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That's why, after all, the RIAA subpoenas the disk drives.
Shit! Too bad I mine died and went to Seagate for a warranty replacement.
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I think it'd be interesting to see what would happen if somebody set up a wide-open wireless network, but didn't have ANY computer attached to it.
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Yeah, well, that's a problem. If you get a subpoena, you have to preserve the evidence or be found it contempt of court.
They have to file the case before they can get a subpoena and odds are that I'll have some leadtime.
Even without it, dump the HD and replace it with one purchased with cash. Good luck boys....
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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 c
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"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.
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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!
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There has been no litigation of the RIAA's theory of liability in this case.
They voluntarily dismissed their case.
And besides that, this story is not about the voluntary dismissal, which is old news. This story is about the award of attorney's fees. You're the one barking up the wrong tree.
Re:"Precedent" (Score:4, Insightful)
I see them cited frequently, especially in support of issues of law that haven't been determined at an appellate law. Judges tend not to like to go out on limbs, if you can show them where another judge did something similar, it can make them feel more comfortable about ruling.
Re:Open up your networks! (Score:4, Interesting)
War is peace
Freedom is slavery
Ignorance is strength
And now
Insecurity is protection
A few years late, but not unexpected..
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Sad but true - although Duke (the trainer) in Rocky IV lays it out pretty well..
"You cut him! You hurt him! You see? You see? He's not a machine, he's a man!" - Rocky IV
The same thing can now be said about the RIAA - they're not infallible and their BS can be given back to them, even with prejudice.
ummm... no. (Score:4, Insightful)
If it was even suspected that you were hosting an open WiFi point to engage in, or encourage others to engage in an illegal activity I think they could find many ways to make your life miserable. I'm fairly certain that giving others the tools to commit a crime and then standing idly by while they commit it is, in itself, illegal. Maybe harder to prove, seeing as how they would have to prove intent, but still enough to get you in trouble. Especially if they could show that you were knowledgable enough to know what an unsecured network could be used for.
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A gun is not a Wifi connection, the sole purpose of a gun is to shoot and kill things ( which in some cases may be legal but in the majority of cases is not ) whereas a Wifi connection is a perfectly reasonable thing for anyone to run perfectly legal.
I would imagine that leaving your guns lying around on your porch is already illegal in most places whereas there is nothing illegal about running Wifi hubs. You are basically suggesting that accidentally leaving your car unlocked and it then bei
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Wow. Out of the tens of thousands of rounds I fired in my life, I've shot and killed precisely 2 things.
I mean, by your logic, a sword is used for one, and only one, thing; killing things. Funny how many people own swords or take fencing classes in college and have never actually killed *anything* with it.
(I'm sorry, but you're wrong. G'day.)
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Me like. If that can be said to be a precedent, it means anyone with an unsecured WiFi network has a strong argument for not being held liable for anything done on that network - it's open, after all. Anyone could drive by, park, download [insert bad stuff here], and drive off. Unless the prosecution has video surveillance of your house/apartment, it'll be very hard to *prove* who did what.
It's just a holding.. if it's cited by a judge in the process of constructing a future ruling, it becomes a "precendent" in the meaning I think you're suggesting.
It's not really a binding precendent until a court above the court you're arguing in front of rules the same way. It is persuasive though.. to judges that respect that court.
-GiH
How very zen? How very Christian! (Score:2)
"If your enemy strikes your cheek, turn the other, that he may strike it, as well."
It could well be argued that not securing your networks is the Christian thing to do. (applying the "turn the other cheek" to "hackers" and "network piggybackers") It could also be argu
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You know the morning after this verdict was released there would have been a line of lobbiests on the steps of Congress. Sad, sad times when money means influence.
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Suits against grandmas, children, and disabled people aren't politically popular.
A Democratic majority isn't as easily purchased as a Republican one.
The Democratic majority has actually changed the rules a bit, so that corrupt lobbying is going to be much more difficult in this Congress.
On Slashdot... (Score:4, Insightful)
Could
Re:On Slashdot... (Score:4, Funny)
Re:On Slashdot... (Score:4, Insightful)
Mod parent Funny, by all means, but the previous poster raises, IMO, a valid point.
A quick scan of the front page shows two stories with a "could this mean..." summary endings.
IMO prose like this is redundant at best, and anywhere from condescending (http://it.slashdot.org/article.pl?sid=07/02/07/23 16201 [slashdot.org]) to outright misleading (this article) at the worst, and reads like tabloid journalism and sensationalism at its finest.
I think it rarely adds anything interesting to the article in question, and can be done without.
Just me $0.02
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"Could this be the end of a monopoly? Or the start of a new one?"
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The parent post talks about summaries with endings that he doesn't like. Could this be the end of /. ending summaries with "Could this be the end of..."?
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About time. (Score:2, Interesting)
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going into court with revenge or greed as your objective (to be "set up for life") is why judges instinctively resist awards for pain and suffering, etc. too nebulous, too easily abused.
the courts are a very conservative institution.
issues are progressively narrowed, not enlarged as cases pro
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If Ms. Foster gets an award of $55,000, that's an expense on top of the $100,000 or so the RIAA has spent on the case. That's a net loss on this one case of, let's say, $155,000, which would wipe out all the profit from probably a hundred settlement
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Meanwhile, unfortunately, the fight goes on.
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By the way, it occurred to me last night that the RIAA can't appeal from this order because:
-it's not an appealable order;
-they would have no chance of getting it reversed, since the awarding of attorneys fees to a prevailing party under the Copyright Act is discretionary; and
-any further litigation will result in the attorneys fee award being increased (e.g. if the RIAA were to spend $40,000 prosecuting an appeal, and Ms. Foster's attorney were to spend $25,000 worth
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We all know what "reasonable" means to the RIAA (Score:3, Interesting)
RIAA already won (Score:4, Insightful)
I think it's pretty despicable*, but it was (unfortunately) very effective, much more so (and probably cheaper than) a typical ad campaign. Yes, there are other ways they could have done it, I am not saying it was right; but to think any legal setback (other than something extremely catastrophic, such as ordering them to pay ALL legal fees for all past cases plus emotional distress or something like that) will make them consider the campaign a failure is just foolish. If they lose a case there is nothing to stop them from filing more; it's the front-page news alerts that another thousand have been served that they are after, not the judgements themselves.
And anyway, even if they were to stop tomorrow, they could do so comfortably knowing that they already won-- "piracy" has been stygmatized, and casual users are afraid.
* I would go so far as to say no corporation should be able to sue an individual under any circumstances, but that is a different discussion.
Re:RIAA already won (Score:5, Insightful)
Actually I think they do care. One of their tactics has been to drag things out to where people settle simply because it's cheaper. This decision hurts that tactic two ways. First, it calls into question the RIAA's assertion that merely being the registered owner of the IP address they claim was involved is sufficient. And second, it provides precedent a defendant can cite in future cases for making the RIAA pay defendant's attorney's fees if the RIAA can't prevail. Those two things make it more likely a defendant will take the "Prove it was me at the computer." defense further and go for a win instead of settling. And now it's on the record in an actual ruling by the court. It's a published ruling future defendants can cite as settled case law and which the RIAA will have to overcome. That's one of the things they really really didn't want to have happen, which is why they squirmed so hard to try and avoid a dismissal with prejudice.
Re:RIAA already won (Score:5, Interesting)
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I had an email exchange today with their head lawyer, and he seemed a bit confused.
Yes they're going to do things differently. For one thing, they are never going to try that stupid secondary liability argument again. For another thing, in most
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Possibly only in the case of the RIAA dr
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They give a damn.
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Sounds like the work of Stygmies.
Re:RIAA already won (Score:4, Insightful)
Which is what used to be called "good business sense".
Oh, and the MPAA should shut up that one participant that still wants region limiting. I've heard of quite a few execs themselves that region limiting is stupid. Typically, people that travel (i.e. with money to spend) buy a lot of movies on the fly, but only the ones they buy legitimately won't play when they get home from another region. How stupid is that?
DRM, even of this basic kind means that the value of the product is lower to any potential customer. Increasing the potential market to pirates.
SLAPP (Score:2)
No, RIAA is scaring people (Score:2)
The only thing that will stop them is if some appelate Court rules that their drift-net technique is insufficient grounds to advance a case and upholds summary dismissal. So they don't appeal!
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Capitol v. Foster scares them a lot.
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Judges are still dumb about this (Score:2)
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Second, parents are often responsible for their children's actions; if you're the kid of the RIAA gun owner, then yes, the family of the person you killed could sue your parents. This is not an absolute; parents are not always held liable for their kids' actions, but they often are.
Third, even with no relation, it's quite possible and reasonable that if the person you took the gun from didn't secure it prope
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"Isn't it simply academic for a good social engineer to get a list of names of all the RIAA 'people,'-- all the RIAA policy makers, decision makers, and lawyers, etc.? And wouldn't that pretty much be, for a good hacker, a few hundred hot pockets away from getting all their identity info? And then maybe from that point, just a few candy bars away from transferring all their money into a Belize /. account?"
Yes, that would show the record companies that they should stop using DRM. Let's show them how matu
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