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Vol. 6, No. 54
12-14-06
1 Good news about RIAA nonsense
2 Grim Ripper
3 Sampling crash, Mozart mania,
4 YouTube captures
5 Email transfers
I’m going to do something I seldom do this week. Rather than Write
the majority of the lead article I’m going to quote extensively from another
piece. Mr. Ray Beckerman, an attorney
with Vandenburg & Feliu LLP in
In this posting at http://info.riaalawsuits.us/howriaa.htm Mr. Beckerman breaks down an RIAA case from start to finish and points out some major flaws with the process. This is a rather long article and I won’t post the entire thing but please, if you’re interested visit the website and read it in its entirety. There’s a little legalese, as there would have to be when describing a legal matter, but mostly it’s easily understandable English and well worth a half hour or so for computer users to peruse and digest.
In the introduction Mr. Beckerman gives a summary of the lawsuits against end-users and what they consist of:
“The RIAA lawsuits pit a small number of very large recording companies against individuals who have paid for an internet access account.
On the plaintiff's end, the owners of the underlying copyrights in the musical compositions are not involved in the case; neither are many smaller record companies.
As to the defendants, since no investigation is made to ascertain that the defendant is actually someone who engaged in peer to peer file sharing of copyrighted music without authorization, there are many defendants who have no idea why they are being sued and who did nothing even arguably violative of anyone's copyright. Defendants have included people who have never even used a computer, and many people who although they have used a computer, have never engaged in any peer to peer file sharing.
Sometimes the cases are misleadingly referred to as cases against 'downloaders'; in fact the RIAA knows nothing of any downloading when it commences suit, and in many instances no downloading ever took place.
It is more accurate to refer to the cases as cases against persons who paid for internet access which the RIAA has reason to believe was used by some person -- possibly the defendant, possibly someone else -- to engage in peer to peer file sharing.”
The next section explains the procedure the RIAA follows to file the suits and illustrates the huge holes in the process. If the defendants would stop settling these cases out of court when they’re served the RIAA would likely be smacked down hard…
“At the core of the RIAA lawsuit process, is its initial lawsuit against a group of "John Does".
Here is how it works:
A lawsuit is brought against a group of "John Does". The location of the lawsuit is where the corporate headquarters of the internet service provider (ISP) is located.
All the RIAA knows about the people it is suing is that they are the people who paid for an internet access acount for a particular dynamic IP address.
The "John Does" may live -- and usually do live -- hundreds or thousands of miles away from the City where the lawsuit is pending, and are not even aware that they have been sued.
The RIAA is aware that most of the defendants do not live in the state, and are not subject to the jurisdiction of the Court, but bring the case anyway.
They are also aware that under the Federal Rules of Civil Procedure there is no basis for joining all these defendants in a single lawsuit, but do indeed join them in one case, sometimes as many as several hundred in a single "litigation".
The only "notice" the "John Does" get is a vague letter from their ISP, along with copies of an ex parte discovery order and a subpoena, indicating that an order has already been granted against them: i.e., instead of receiving notice that the RIAA is applying for an order, they instead are notified that they have already lost the motion, without ever even having known of its existence.
They are not given copies of (i) the summons and complaint, (ii) the papers upon which the Court granted the ex parte discovery order, or (iii) the court rules needed to defend themselves. Most recipients of this "notice" do not even realize that it means that there is a lawsuit against them. None of the recipients of the "notice" have any idea what they are being sued for, or what basis the Court had for granting the ex parte discovery order and for allowing the RIAA to obtain a subpoena.
They are told they have a few days, or maybe a week or two, to make a motion to quash the subpoena. But if they were to talk to a lawyer they could not give the lawyer an iota of information as to what the case is about, what the basis for the subpoena is, or any other details that would permit a lawyer to make an informed decision as to whether a motion to quash the subpoena could, or could not, be made. What is more, the lawyer would have to be admitted to practice in the jurisdiction in which the ex parte case is pending, in order to do anything at all.
In other words, except for lawyers who are knowledgeable about the RIAA tactics, no lawyer could possibly have any suggestions that would enable "John Doe" to fight back.
So "John Doe" of course defaults. Then the John Doe "case" may drag on for months or even years, with the RIAA being the only party that has lawyers in court to talk to the judges and other judicial personnel.
The RIAA -- without notice to the defendants -- makes a motion for an "ex parte" order permitting immediate discovery. ("Ex parte" means that one side has communicated to the Court without the knowledge of the other parties to the suit. It is very rarely permitted, since the American system of justice is premised upon an open system in which, whenever one side wants to communicate with the Court, it has to give prior notice to the other side, so that they too will have an opportunity to be heard.).
The "ex parte" order would give the RIAA permission to take "immediate discovery" -- before the defendants have been served or given notice -- which authorizes the issuance of subpoenas to the ISP's asking for the names and addresses and other information about their subscribers, which is information that would otherwise be confidential.
In the United States the courts have been routinely granting these "ex parte" orders, it appears. (Not so in other countries. Both Canada and the Netherlands have found the RIAA's investigation too flimsy to warrant the invasion of subscriber privacy. Indeed the Netherlands court questioned the investigation's legality.).
Once the ex parte order is granted, the RIAA issues a subpoena to the ISP, and gets the subscriber's name and address.
The RIAA then discontinues its "John Doe" "ex parte" case, and sues the defendant in his own name in the district where he or she lives.
Thus, at the core of the whole process are:
(1) the mass lawsuit against a large number of "John Does";
(2) the "ex parte" order of discovery; and
(3) the subpoenas demanding the names and addresses of the "John Does".”
The more I start trying to pick and choose the sections of this wonderful article to use the more I realize that very few sections can be skipped without corrupting Mr. Beckerman’s argument. That said, I’ll continue this on Monday.
Once again I’d like to thank Ray for granting me permission to use his words and, while I realize the subject matter isn’t very Christmasy I think it’s important. Computer users from novice to IT professional are threatened by forces that we have no knowledge of and, as the NBC PSA commercials allude to, “The more you know…”
Kevin Mefford, Editor
Terry Wise
www.ratland.com
Tech News Headlines
When you release a survey predicting the imminent decline of
iTunes,
it's probably a good idea to gather data on more than 200 households:
http://news.com.com/Gloomy+iTunes+predictions+premature/2100-1027_3-6143555.html
Mozart is now just a mouse-click away. Mozart maniacs, enthusiasts,
students and scholars can now access the immortal composer's entire
catalog through a free online database with some 24,000 pages:
http://seattlepi.nwsource.com/business/1700AP_Mozart_Online.html
Microsoft's Windows Vista will give a 100,000-job "bounce" to U.S. IT
employment next year, a study released Monday said (who said viruses
and spyware are all bad?):
http://www.informationweek.com/management/showArticle.jhtml?articleID=196603200&subSection=Global
The trademark nonsense that commenced with Apple threatening everyone
that used the word "pod" in their product continues with RIM issuing
a
lawsuit against Samsung for using the word "black" in two of their
products:
http://www.itwire.com.au/content/view/8036/127/
Copy us on the original, non-copyrighted stuff ;-)
Matthew Dattilo
thepcgurus@gmail.com
www.mattstodayinhistory.com
Download Tip
A few weeks ago reader “Brusier” emailed a link for a nifty little program called VDownloader. Unfortunately my recent email snafu ate the original message and I no longer have his link, but I did find an Alpha version of the program for download.
If you always wanted to save some of those hilarious video clips you see on YouTube and Google Video you’ll love this program. Just copy the URL of the video page, paste it into VDownloader and click the Download button and presto, you’ve saved the video to your hard drive.
Snag it for free from:
http://www.softpedia.com/get/Internet/Download-Managers/VDownloader.shtml
Email Question
Q: I recently
did a clean install of Windows XP on my notebook. Now i
want to import my Outlook contact list from my desktop---also running
XP. The Outlook version is from Office 2000 Pro. Can you help?
A: You will need to
export the Contact list from the desktop and import
it into the notebook. The easiest way is to use the Import / Export
Wizard in MS Outlook. Select the Contacts folder and click on File -
> Import and Export. If you wish to preserve all the information
and formats, export it to a Personal Folders File (*.pst). Instead
of going through a long winded explanation here is a link to
Microsoft's help page.
http://tinyurl.com/yh58l4
Follow the links for the detailed explanations.
Merry Christmas !
Hash
hash@ucanweb.com
Contact info and
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