RIAA sues a guy claiming he’s downloading copyrighted songs without permission. Guy moves for summary judgment saying they got his name wrong, he never downloaded nuthin, doesn’t even have file sharing programs on his computer. RIAA doesn’t actually dispute any of his factual assertions via affidavit, which would be the normal response if they had a case (but can lead to sanctions if they knowingly lie). Instead, RIAA moves for expedited discovery.
Is this just a ‘shopping expedition’? You might expect me to say so. And indeed, news reports would make you think so. But I’ve had a look at the affidavit supporting RIAA’s motion, and it’s not baseless at all. Rather, RIAA says that they have third-party info that a certain IP number was used to do downloads it alleges copied material without a license. And it further has information from an ISP linking that IP number to a person it says is the defendant (he contests that).
Seems to me that the court might reasonably first order discovery on the identity issue before going whole hog. But if the defendant is in fact shown to be the person fingered by the ISP, then I think RIAA’s request for further discovery is not ridiculous. None of which means RIAA will win, or deserves to win (or lose) on the merits about which I am of course ignorant.
[corrected]
(psst, it’s the RIAA not the RIAA…. Recording Industry Association of America).
(psst, it’s the RIAA not the RIIA…. Recording Industry Association of America).
The word “zombie” comes to mind.
As do the words “trojan”, “rootkit” and “malware.”
These are words that describe a computer that has been compromised with respect to security by an outside party against the knowledge and wishes of the owner of the computer, and the nature of that compromise.
A common practice of hackers is to use a machine they have compromised to commit misdeeds such as acting as a spamming proxie ,or a “file server” for for their own purposes, such as holding child pornagraphy or other illegal downloads.
Therefore, it is possible that the computer in question did download music, but under the direction of another party not connected with the defendant, because the operating system was infected.
Defendant’s attorney should make sure that discovery includes a comprehensive sweep for viruses, malware and spyware and that he hires the appropriate expert witnesses to conduct this search and to testify, if necessary, as to the effect of any such found.
You are incorrect about what the RIAA affidavit says.
It says “infringing” not “downloading”.
What they mean is that at a certain date and time they viewed a screen shot of a shared files folder… that there were copyrighted songs in that folder… that their investigator somehow calculated the dynamic IP address at the moment… that the ISP identified defendant as the customer who paid for the internet access to that dynamic IP address.
They do not know if the copyrighted songs were in fact song files.
They do not know if they were legally purchased or illegally purchased files.
They do not know if any copies were made of them.
And they do not know if they were defendant’s.
I.e. you were giving them way too much credit.
Best regards,
Ray Beckerman