howrman
join:2000-07-08
Philadelphia, PA
1 edit | First RIAA Lawsuit Heads to Trial
The "loss" of the hard drive is very bad for the defendant. It allows the jury to infer that she destroyed the hard drive because it contained incriminating evidence. That helps the RIAA establish liability and, perhaps more importantly, it makes the defendant look bad to the jury. Moreover, the story about Best Buy replacing the drive without the defendant's permission shortly after she received a letter from the RIAA just doesn't ring true to me. As a result, my guess is that, this case may make some good law for the RIAA. |
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woody7
Premium
join:2000-10-13
Torrance, CA
 ·EarthLink
·DSL EXTREME
| you could change your own drive and who would know. Wouldn't they have to get a subpoena to get the contents of the hard drive? I wouldn't infer that she was hiding anything. The way windows works and the time frame, it is not out of the ordinary for this to happen.And the geek squad are idiots any way. Isn't it incumbent upon the riaa to prove their case, than just state they "uploaded"? You can subpoena my hard drive, but mine are all removable anyway, not that I upload 
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BlooMe |
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Neyland
join:2003-02-04
USA
| reply to howrman
Wouldn't part of the process look at the methods the RIAA used to legally obtain the user's information and documentation that the RIAA uses to determine if the end user did indeed infringe or cause monetary harm to them?
And if it did cause monetary harm how that amount was derived? |
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LordFlux
join:2005-04-20
Warner Robins, GA
 ·Cox HSI
 ·Alltel Axess
| reply to howrman
I agree. Also the fact that the songs were traced back to the Kazaa name 'tereastarr'... and it just so happens that her MySpace account is 'tereastarr'.
Ouch. As much as I hate the RIAA and their tactics, it certainly looks like they did their homework on this one. |
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Sammer
join:2005-12-22
Canonsburg, PA
| reply to howrman
said by howrman  :The "loss" of the hard drive is very bad for the defendant. I agree although the jury doesn't have to infer her intent. They only have to determine if it is more likely than not that the missing hard drive contained the infringing content. |
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Shamayim
I already have a Messiah.
Premium
join:2002-09-23 | reply to LordFlux
There's always jury nullification. |
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ross
join:2000-08-16
·Digizip
| reply to howrman
said by howrman :The "loss" of the hard drive is very bad for the defendant. It allows the jury to infer that she destroyed the hard drive because it contained incriminating evidence. That helps the RIAA establish liability and, perhaps more importantly, it makes the defendant look bad to the jury. Moreover, the story about Best Buy replacing the drive without the defendant's permission shortly after she received a letter from the RIAA just doesn't ring true to me. As a result, ny guess is that, this case may make some good law for the RIAA. Pretty big assumption, since you don't know if the Geek Squad will testify that the drive was replaced and destroyed because it was defective, and they had a "blanket" repair order! I wouldn't allow the plaintiff to assert the absence of evidence is itself "evidence" of wrongdoing without substantial proof that the "missing" evidence was knowingly destroyed by the defendant.
The only good law that could come out of any such litigation would be a ruling that the RIAA filed without sufficient corroborating evidence to establish a reasonable belief the defendant violated their copyrights, or to sustain an objective judgment in their favor, along with an award of attorneys fees and court costs to the defendant. |
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morbo
Complete Your Transaction
join:2002-01-22
00000
clubs: | reply to Shamayim
who told you about that???  |
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JoeOnSunset
Doublethink Is Doubleplus Ungood.
Premium
join:2002-11-25
Ormond Beach, FL | Morbo laughs at the twelve puny humans who try to decide the validity of the law. |
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morbo
Complete Your Transaction
join:2002-01-22
00000
clubs:
·Charter Pipeline
·AT&T Southwest
2 edits | Morbo: “Morbo will now introduce tonights candidates. Puny human number one, puny human number two and Morbo’s good friend Richard Nixon.”
Nixon: “Hello Morbo. How’s the family?”
Morbo: “Belligerent and numerous.”
Nixon: “Good man, Nixon’s pro-war and pro-family.” |
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Pirate515
Premium
join:2001-01-22
Brooklyn, NY
|  reply to woody7
said by woody7 :Isn't it incumbent upon the RIAA to prove their case, than just state they "uploaded"? Depends on whether this is a criminal or civil case. If it it the former, then indeed the prosecutor must prove that the defendant is guilty beyond a reasonable doubt. However, civil cases (and I think this case is a civil one) are decided on preponderance of evidence. In other words, whoever's side does a better job proving themselves wins.
What I'm really wondering about is whether this case is being heard by a judge or jury. If this is going to a jury, I wonder how many RIAA fanboys are sitting on it? Quite a few jurors usually see cases like these as "David vs. Goliath", where a big fat corporation that just cannot get enough money is trying to shake down a hardworking lady who is struggling to support her family, and regardless of the evidence, guess who they are going to side with?
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Ask me no questions, and I'll tell you no lies...
A MESSAGE to the RIAA and the MPAA: You shouldn't wound what you can't kill... |
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Ahrenl
join:2004-10-26
North Andover, MA
 ·Verizon FIOS
| It's absolutely a civil case. First and foremost, there is no criminal copyright law. Secondly, the RIAA is bringing the case, only the government can bring a criminal case. You can't criminally charge someone else, you have to have the DA do it.
Finally, I'm sure the RIAA has some vague IP sniffer data that nobody on the jury will understand, that the defendants lawyer will have to try and debunk. That will most certainly result in that glased eye look you get from the majority of people when you mention any type of computer process.
The icing for the RIAA is that they can blame failure on the "suspicious" disappearence of the defandants HD. So they don't have to worry about creating negative case law. |
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howrman
join:2000-07-08
Philadelphia, PA
| reply to woody7
said by woody7 :you could change your own drive and who would know. It's very easy to figure out when a hard drive has been formatted/installed. |
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howrman
join:2000-07-08
Philadelphia, PA
| reply to Neyland
The RIAA's proof will consist of documentation that, at a specified date and time, IP address xxx.xxx.xxx.xxx was sharing a song whose rights have been assigned to the RIAA. Further, the RIAA will produce proof from the defendant's ISP that, at the time of the alleged infringement, that IP address belonged to the defendant. Lastly, (and most problematic) the RIAA will have to prove that the defendant had control of the computer when the alleged infringement occurred. That should constitute a prima facia case. Since the hard drive was lost by the plaintiff, the RIAA cannot and will not have to show that the protected song and sharing software existed on the hard drive. |
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Neyland
join:2003-02-04
USA
| I'm just curious.. I could say, create a song sharing web site and log all the visitors there. Take a random sampling of my web logs, dummy a tool, screen shots what have you allege visitor xx was hosting a song...
I'm asking because I'm no lawyer....
How can they prove how many people actually got a file from her?
I mean wouldn't that be like a police officer pulling you over for doing 40 in a 35 and fining you for 200 in a 35 because you're in a car capable of the speed? |
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woody7
Premium
join:2000-10-13
Torrance, CA | reply to howrman
It doesn't matter when the drive was changed, my point was that is they are just stating the an ip addy was used to upload/download music without any other proof. Is that enough in it's self to win?
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BlooMe |
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howrman
join:2000-07-08
Philadelphia, PA
| reply to Neyland
It's illegal to offer a song for downloading, even if nobody took the defendant up on her offer. The number of times a song was actually downloaded is only relevant to the extent that it bears on the RIAA's actual damages. However, I suspect that the RIAA will seek only statutory damages (i.e. the amount specified in the statute). If so, the RIAA won't have to prove that it had any actual damages. Statutory damages are set precisely because it may be difficult or impossible for a plaintiff to prove actual damages. |
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rradina
join:2000-08-08
Chesterfield, MO
| reply to Neyland
What's the case? Illegally possessing, illegally sharing or both? If they are trying to prove she illegally shared the song, does the sharing software she used contain a download counter? Is that what they will use for proof that it was downloaded x times?
If they cannot prove how many people downloaded it, then I agree. In fact, I think it's even worse. It's like owning a really fast car doing 35 in a 35. The cop assumes you are guilty because you drive a really fast car and he knows you have been speeding even if you aren't speeding now...
But -- this is a civil case where the burden of proof is not as strict as criminal. (i.e. The glove doesn't have to fit!) |
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rradina
join:2000-08-08
Chesterfield, MO | reply to howrman
I'm not doubting you but do you have a link to the statute? I'd like to read it. |
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WirelessMajr
Premium
join:2005-08-03
College Place, WA
| reply to howrman
With regards to Geeksquad/BestBuy, having worked in Geeksquad...
It all depends on what was wrong with the unit when it was checked in, or what the computer was brought in for. If it was brought in because it had a heavy spyware/virus infection (highly likely), and the drive failed diagnostics tests, then (under warranty) the drive would be replaced (under terms of warranty).
If that was the case, and the BestBuy to which she took her machine did not return the customer her drive, then the customer is not at fault. |
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