p2pnet - rss feed: RIAA goes fishing
p2pnet.net News:- A US Army serviceman who’s completed a tour in Iraq, and the wife of a US Army sergeant, are included on the RIAA list of sue ‘em all victims.
Tanya Andersen, a single mother living on a disability pension in Oregon and accused by the Big Four Organized Music gang of being a download ‘criminal’ begged the Big Four’s RIAA (Recording Industry Association of America) to examine her hard drive so they could see for themselves she wasn’t the thief they said she was.
However, Warner Music, EMI, Vivendi Universal and Sony BMG didn’t want to know - until March, that is, when out of the blue, they suddenly wanted a court order to allow them mine her hard-drive.
Now Kimberly Arellanes, the wife of serving US Army sergeant Frank Arellanes, is in the same boat.
The RIAA is wants to mirror her computer hard drive so their ‘forensic experts’ can ferret around, looking for ‘proof’ that she’d been, “engaged in copyright infringement on a massive scale”.
In the Andersen case, by the time the RIAA had decided they did, after all, want access to her hard drive, she’d been around the block a few times and no longer wanted the RIAA anywhere near her hard drive, refusing to give the so-called ‘trade’ organization the carte blanche access she offered previously.
Subsequently, judge Donald Ashmanskas ruled Andersen could hire her own independent private forensic investigator to look for specific files.
He also ordered the RIAA to foot the bill.
“I’m glad the judge has finally given me the opportunity to show I didn’t do what I’m being accused of, and that the RIAA won’t be able to just search through my entire computer and invade my privacy by looking at stuff they don’t need to look at, like tax info, family photos, financial stuff, etc,” declared Andersen at the time.
Arellanes, living in Texas, feels the same way and her lawyer, John Browning, will be asking for a ruling rule that she, too, can have hire her own expert to examine her hard drive - at the Big Four’s expense.
Browning told p2pnet he’s also defending two other RIAA victims, one, Tyler Payne, a US Army serviceman who’d been stationed in Iraq and who, “didn’t even own a computer at the time he was accused of downloading;” and the other, Frank Alvarez, “an innocent parent”.
Both cases feature judges who claim they weren’t sufficiently au fait with p2p technology to proceed.
As Ray Beckerman stresses in his Recording Industry vs The People, “A pretty stunning result occurred in Interscope v Duty, in Arizona. In my experience I’ve never seen anything like it. The judge denied the defendant’s dismissal motion, not because he agreed with the RIAA, but because he didn’t feel he understood the technology well enough to rule on the case.
“Then, in Waco, Texas, in Warner v. Payne, the judge basically followed Interscope v. Duty, saying he didn’t have enough understanding of Kazaa technology to determine the validity of the RIAA’s ‘making available’ defense, and speculated that the RIAA ‘may’ be able to show actual downloading or actual uploading, and then would not have to rely on the ‘making available’ defense.
“And then, miraculously, a judge in Abilene, Texas, likewise said he didn’t have enough ‘understanding’ either, and likewise denied the defendant’s dismissal motion, in Fonovisa v. Alvarez. In Maverick v. Goldshteyn in Brooklyn, the judge followed the southwestern trilogy of cases, declined to decide whether ‘making available’ is a copyright infringement, and upheld the complaint.
More coming. Stay tuned.
Meanwhile, below is Beckerman’s directory of lawyers who are actively contesting p2p file sharing cases brought by the RIAA. If you’re a lawyer who’s doing the same, or if you’re willing to help RIAA victims and you’d like to be added to the list, contact Beckerman at musiclitigation@earthlink.net.
Alabama
Cleveland, Coker B., Cleveland Law Firm, LLC 1816 Tin Valley Circle, Suite C Birmingham, Alabama 35235 Office: 205.453.4702 Cellular: 205.516.3579 Facsimile: 205.419.0704 Email: cbcleveland@hotmail.com
Alaska
Cooper, Elizabeth A.,Lybeck Murphy, LLP 500 Island Corporate Center 7525 SE 24 Street Mercer Island, WA 98040-2336 (206) 230-4255
Arizona
Heidmiller, Sheila, Macheledt, Bales & Heidmiller LLP 7248 E Tasman St Mesa, AZ 85207 480-773-7807 480-773-7809 (fax) Email: sheilah@mbh-law.com
California
Kouretchian, Seyamack, Coast Law Group LLP, 169 Saxony Road (suite 204), Encinitas, CA 92024, Phone: 760-942-8505 Fax: 760-942-8515 Email : seyamack@coastlawgroup.com
Georgia
Caldwell, Michael A. DeLong, Caldwell & Bridgers, LLC Suite 3100 Centennial Tower 101 Marietta St., N.W. Atlanta, GA 30303 (404)979-3150 Email: Michaelcaldwell@dcnblaw.com
Illinois
Mudd, Charles Lee, Jr. Law Offices of Charles Lee Mudd Jr. 3344 North Albany Avenue Chicago, Illinois 60618 773.588.5410 773.588.5440 (facsimile) cmudd@muddlawoffices.com
Rubin, E. Leonard, Sachnoff & Weaver, Ltd. 10 S. Wacker Drive, 40th Fl. Chicago, IL 60606-7507 312-207-1000 elrubin@sachnoff.com
Saper, Daliah, Saper Law Offices 188 West Randolph, Suite 1705 Chicago, IL 60601 312.404.0066 dsaper@saperlaw.com www.saperlaw.com
Massachusetts
DiMare, Charles, J. (Director), Kent, Lisa (Senior Staff Advisor), Student Legal Services Office University of Massachusetts Amherst, MA 01002
413-545-1995
Michigan
Hermann, John 2684 West Eleven Mile Road Berkley, MI 48072 248-591-9291 Email: JTHermanos@Earthlink.net
Minnesota
Toder, Brian N., Chestnut & Cambronne, P.A. 204 North Star Bank 4661 Highway 61 White Bear Lake, MN 55110 651.653.0990 Email: btoder@chestnutcambronne.com
August 11th, 2006 at 5:35 pm
“declined to decide whether ‘making available’ is a copyright infringement, and upheld the complaint”
The federal court system is playing with the people as if they were balls to play with.
My family sued a music publisher who made available and licensed hundreds of songs (that the publisher stole through a fraud scheme) to radio stations for money actually collected. The judge decided that licencing others (radio stations) to use the songs for money was not infringement. Clearly licencing others to use use our music was “making available”.
The court decision can be downloaded from my web page.
Rafael Venegas
http://www.gvenegas.com
August 11th, 2006 at 8:34 pm
http://talkback.zdnet.com/5208-10532-0.html?forumID=1&threadID=24191&messageID=454181&start=-44
Just copy and paste that link to get to even MORE info on this subject.
August 12th, 2006 at 1:11 am
If these judges don’t understand technology and copyright issues they should:
(a) Use independent technical evaluators/consultants.
(b) Give these cases to judges that do have an understanding of the forementioned disiplines.
Personally i would have thought that using specialist judges is the best course of action. Like you have lawyers that specialise in areas of law, why shouldn’t the judges presiding over them have the same specialist skills?
Alot of judges use the maxim, “Ignorance is not a defense”. The same should apply to, “failure to dismiss due not understanding the subject matter”. If the judge doesn’t understand the technical aspects, they shouldn’t be trialing the case to start with.
August 12th, 2006 at 8:08 am
True, but the judges don’t really have a say in what cases get assigned to them on a general court docket. If there is some sort of conflict of interest, then the judge can remove him/herself from the case. But it’s rare otherwise.
In the three cases where the judge denied the motion to dismiss, I beleive that the judge made the right call. In doing so, he is forcing the parties to negotiate the suit. If it goes to trial, I garuntee that there will be expert witnesses testifying about the technology itself. Discovery and trial is where judges learn the most about the underlying issues of the case.
August 13th, 2006 at 10:39 am
“If there is some sort of conflict of interest, then the judge can remove him/herself from the case.”
Nice theory, but hardly true. Judges have a conflict of interest all the time. This is because they are lawyer judges. If they were formerly corporate lawyers, they become corporate judges, a very common phenomena.
“Discovery and trial is where judges learn the most about the underlying issues of the case.”.
Not true. It is at this stage that the honest judge messes things up due to ignorance. A lousy time to have a trainee lawyer-judge on hand.
Rafael Venegas
http://www.gvenegas.com
August 13th, 2006 at 1:21 pm
Wrong again.
Since p2p technology is still so new, you will not find many judges adept in it. So you are suggesting that only these judges take these cases? If that is the case then the backlog will be very long and it will take years for these cases to proceed.
Following your logic, if only judges who are experts participated in these technology cases, then nobody in the judicial branch of our government would learn anything new and nobody would ever be qualified to hear these cases.
August 13th, 2006 at 3:30 pm
“Since p2p technology is still so new, you will not find many judges adept in it.”
Gee, judges do not know the law but kids are suppoosed to, according to those that acuse the kids for allegedly criminal acts.
It is utter nonsense to accuse anyone of violating a law that the judge does not understand because of its technical details. If judges still have no understanding ot te technical nuisance of a law then the law should not be enforced yet under the assumption that the law is not understood by the people.
To simplify this, using tour own statement, but modified.
Since p2p technology is still so new, you will not find many people adept in it.”. therefore the people shall not be accused of copyright infringement while using p2p technology. Otherwise you have a tyranny.
Remeber the saying, “of the people, by the people, for the people”. Is it just a slogan, a publicity stunt? Ot should we say “of RIAA, by RIAA , for RIAA”?
In criminal law enforcement, the enforcement of a law requires a lawyer at the Justice Department to interpret the law. When the technical details are not understood by the lawyer, the law become a defacto dead law, as the Justice department is unwilling to drag people into court as part of a wild goose chase experiment. The principle is law ignorant lawyers should not accuse anyone of violating the law for the purpose of sending the accused to jail. Under the same principle, law ifnorant judges should not be listening to evidence and arguments over the law. As trainees, they will not understand. The time for learning is before taking the case. Just as surgeons do. Surgeons learn before the operation, never in the middle of it.
The middle of it is a bad to have a trainee making decisions.
Rafael Venegas
http://www.gvenegas.com
August 14th, 2006 at 11:27 am
“You have to start somewhere.”
That is true, but that somewhere must be in calling off the RIAA war against youth. That is what judges must be doing. They should declare laws as unconstitutional when they are so technically difficult to understand that they (the lawyer judges), who are lawyers cannot understand them. Common sense says that no law should be too technical it it is to be used to prosecute the common people of a country.
When laws, or litigation therein, by their nature have to be too technical, simple logic says that such laws cannot be used to prosecute the common man for not complying. It also means that judges need to be specilists to handle some cases. I simply cannot visualize a judges who is not a specialist or a jury of common people deciding a complex dna-stem cell patent infringement case that not even a medical doctor is able to undestand without first going back to school.
But let’s make this simpler. A kid sees a new feature on a friend’s bycicle. Unknown to him the feature is patented. The kid likes the feature and copies it to put on his bike. The patent owner then, at a competition, sees the feature used on a bike that he do not manufacture. He, behaving as RIAA does, sues the kid and his parents because they copied the patented feature. Are we really to expect that a kid know patent law and even do a patent search before modifying a byclicle? It gets as ridiculous as the RIAA lawsuits against childern and grandmothers, doesn’t it?
I also cannot visualize a pahrmaceutical company suing a kid who in a school or home science lab reproduced a complex technology the pharmaceutical had patented. Patent law was simply not designed to prevent the common man from infringing patents, just as the copyright law was not designed to prevent kids from infringing. Sure, you can apply the law to infringers such as Sony (see about Sony below), who are in the, let us say, copyright business themselsves.
I hope this is the end of our back and forth disagreement on copyright law.
As to…
“And aren’t you the guy who keeps harping about the record companies ripping you off and pirating your sound recordings? I’m calling bullshit on you and your rant because if that was true, why didn’t you appeal the court decision? The decision was obiously wrong. It happens everyday. I would have.”
Regarding your question as to why we did not appeal our case, the question is based on the wrong premise that we did not appeal. We did appeal. For an explanation as to what happened o the appeal, I invite you to our page:
The Appeal - Not one of the judge’s error overturned
http://rafa_venegas.web.prdigital.com/appeal.htm
The case was our lawsuit aginst two music publishers who illegally claimed to own our songs and acted as owners. No record producer were involved. The judge’s errors are in the hundreds and I don’t think it was a case of a trainee judge.
Until such time that we have new legal representation and perhaps our other cases are ended I may not be able to explain what I know went wrong in our appeal, as accusations a will surely be made.
That is all we can say at this moment other that Iam searching for a new lawyer to take over our case against Sony that is pending.
Sony made at least 24 records (23 Cd and one cassette) with our songs without any license from us to do so. Of these records, millions were made. Some of the royalty money was paid to of of the music publishers we sued, who gave Sony illegal licenses (for just some of the records) after Sony had commenced the sales of the records. At the time Sony accepted the illegal licenses Sony knew we (Venegas family)were the real owners of the song’s copyrights. I had personally notified Sony of the fact. Sony decided it was better to deal with the crooks through a deal whose details are unknown to us, as no depositions have been made yet, even though the lawsuit was filed in february 2001, over five yers ago. All we know is that Sony is saying it acted in good faith.
You can get more information of the Venegas vs. Sony case here:
http://rafa_venegas.web.prdigital.com/venegas_v_sony_lawsuit.htm
Rafael Venegas
http://www.gvenegas.com
August 14th, 2006 at 2:24 pm
” And aren’t you the guy who keeps harping about the record companies ripping you off and pirating your sound recordings? I’m calling bullshit on you and your rant because if that was true, why didn’t you appeal the court decision ”
His case is well documented, and he has provided links many times
to the documents.
Go to his site, and read. You are obviously a naive punk. Judges
are also bought every day.
But, I may be missing the point as well.
The problem is ….
Judges suddenly using the SAME excuse that allows the RIAA
to futher torment them.
I don’t believe in coincidences. With all of the money the
“broke” RIAA have to throw around I call “Bullshit” myself on
those judges.
I call bullshit on you too.
I think this is simply a way to derail this thread.
I think you should Fuck off.
( No I won’t respond to you any more, so go ahead, take the
“last word” )
August 14th, 2006 at 8:04 pm
Actually I dont know where you get your legal information, but in the United States, particularly in the area of Copyright Law it is relatively easy to get a court to order access to ones computer by forensic specialists. It doesnt require a Criminal case!