Oregon RIAA Victim Fights Back; Sues RIAA for Electronic Trespass, Violations of Computer Fraud & Abuse, Invasion of Privacy, RICO, Fraud

Saturday, October 01, 2005

ATLANTIC V. ANDERSEN

This is the case peer-to-peer file sharers have been waiting for. Tanya Andersen, a 41 year old disabled single mother living in Oregon, has countersued the RIAA for Oregon RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices.

Ms. Andersen's counterclaims demand a trial by jury.

Ms. Andersen made the following allegations, among others:


1. For a number of years, a group of large, multinational, multi-billion dollar record companies, including these plaintiffs, have been abusing the federal court judicial
system for the purpose of waging a public relations and public threat campaign targeting digital file sharing activities. As part of this campaign, these record companies retained MediaSentry to invade private home computers and collect personal information. Based on private information allegedly extracted from these personal home computers, the record companies have reportedly filed lawsuits against more than 13,500 anonymous “John Does.”
2. The anonymous “John Doe” lawsuits are filed for the sole purpose of information farming and specifically to harvest personal internet protocol addresses from internet service providers.

3. After an individual’s personal information is harvested, it is given to the record companies’ representatives and the anonymous “John Doe” information farming suits are then typically dismissed.

4. The record companies provide the personal information to Settlement Support Center, which engages in prohibited and deceptive debt collection activities and other illegal conduct to extract money from the people allegedly identified from the secret lawsuits. Most of the people subjected to these secret suits do not learn that they have been “sued” until demand is made for payment by the record companies’ lawyers or Settlement Support Center.....

5. Tanya Andersen is a 42-year-old single mother of an eight-year-old daughter living in Tualatin, Oregon. Ms. Andersen is disabled and has a limited income from Social Security.

6. Ms. Andersen has never downloaded or distributed music online. She has not infringed on any of plaintiffs’ alleged copyrighted interest.....

7. Ms. Andersen has, however, been the victim of the record companies’ public threat campaign. The threats started when the record companies falsely claimed that Ms. Andersen had been an “unnamed” defendant who was being sued in federal court in the District of Columbia. She was never named in that lawsuit and never received service of a summons and complaint.

8. Neither did Ms. Andersen receive any timely notice that the suit even existed. That anonymous suit was filed in mid-2004. Ms. Andersen first learned that she was being “sued” when she received a letter dated February 2, 2005, from the Los Angeles, California, law firm Mitchell Silverberg & Knupp, LLP. The LA firm falsely claimed that Ms. Andersen had downloaded music, infringed undisclosed copyrights and owed hundreds of thousands of dollars. Ms. Andersen was understandably shocked, fearful, and upset. ....

9. After receiving the February 2, 2005 letter, Ms. Andersen contacted the record companies’ “representative,” which turned out to be Settlement Support Center, LLC. This company was formed by the record companies for the sole purpose of coercing payments from people who had been identified as targets in the anonymous information farming suits. Settlement Support Center is a Washington State phone solicitation company which engages in debt collection activities across the country.

10. When Ms. Andersen contacted Settlement Support Center, she was advised that her personal home computer had been secretly entered by the record companies’ agents, MediaSentry.


11. Settlement Support Center also falsely claimed that Ms. Andersen had “been viewed” by MediaSentry downloading “gangster rap” music at 4:24 a.m. Settlement Support Center also falsely claimed that Ms. Andersen had used the login name “gotenkito@kazaa.com.” Ms. Andersen does not like “gangster rap,” does not recognize the name “gotenkito,” is not awake at 4:24 a.m. and has never downloaded music.

12. Settlement Support Center threatened that if Ms. Andersen did not immediately pay them, the record companies would bring an expensive and disruptive federal lawsuit using her actual name and they would get a judgment for hundreds of thousands of dollars.

13. Ms. Andersen explained to Settlement Support Center that she had never downloaded music, she had no interest in “gangster rap,” and that she had no idea who “gotenkito” was.

14. Ms. Andersen wrote Settlement Support Center and even asked it to inspect her computer to prove that the claims made against her were false.

15. An employee of Settlement Support Center admitted to Ms. Andersen that he believed that she had not downloaded any music. He explained, however, that Settlement Support Center and the record companies would not quit their debt collection activities because to do so would encourage other people to defend themselves against the record companies’ claims.

16. Instead of investigating, the record company plaintiffs filed suit this against Ms. Andersen. F. The Record Companies have no Proof of Infringement.

17. Despite making false representations to Ms. Andersen that they had evidence of infringement .... plaintiffs knew that they had no factual support for their claims.

18. No downloading or distribution activity was ever actually observed. None ever occurred. Regardless, the record companies actively continued their coercive and deceptive debt collection actions against her. Ms. Andersen was falsely, recklessly, shamefully, and publicly accused of illegal activities in which she was never involved.

Ms. Andersen further alleged:

20. Entering a person’s personal computer without their authorization to snoop around, steal information, or remove files is a violation of the common law prohibition against trespass to chattels.

21. The record company plaintiffs employed MediaSentry as their agent to break into Ms. Andersen’s personal computer (and those of tens of thousands of other people) to secretly spy on and steal information or remove files. MediaSentry did not have Ms. Andersen’s permission to inspect, copy, or remove private computer files. If MediaSentry accessed her private computer, it did so illegally and secretly. In fact, Ms. Andersen was unaware that the trespass occurred until well after she was anonymously sued.

22. According to the record companies, the agent, Settlement Support Center used the stolen private information allegedly removed from her home computer in their attempt to threaten and coerce Ms. Anderson into paying thousands of dollars. ....

Under the provisions of the Computer Fraud and Abuse Act (18 U.S.C. § 1030) it is illegal to break into another person’s private computer to spy, steal or remove private information, damage property, or cause other harm.

26. Ms. Andersen regularly used her personal computer to communicate with friends and family across the country and for interstate e-commerce. Ms. Andersen had password protection and security in place to protect her computer and personal files from access by others.

27. The record company plaintiffs employed MediaSentry as their agent to bypass Ms. Andersen’s computer security systems and break into her personal computer to secretly spy and steal or remove private information. MediaSentry did not have her permission to inspect, copy, or remove her private computer files. It gained access secretly and illegally.

28. According to the record companies’ agent, Settlement Support Center, used this stolen private information in their attempt to threaten and coerce Ms. Andersen into paying thousands of dollars. ....

31. According to the record companies, Ms. Andersen’s personal computer was invaded by MediaSentry after she was identified with a nine digit code (an Internet Protocol Address (“IPA”)) obtained from the anonymous information farming lawsuits. MediaSentry did not have permission to inspect Ms. Andersen’s private computer files. It gained access only by illegal acts of subterfuge.

32. The record companies’ agent has falsely represented that information obtained in this invasive and secret manner is proof of Ms. Andersen’s alleged downloading. Ms. Andersen never downloaded music but has been subjected to public derision and embarrassment associated with plaintiffs’ claims and public relations campaign.

33. The record companies have used this derogatory, harmful information to recklessly and shamefully publicly accuse Ms. Andersen of illegal activities without even taking the opportunity offered by Ms. Andersen to inspect her computer. .....

36. Despite knowing that infringing activity was not observed, the record companies used the threat of expensive and intrusive litigation as a tool to coerce Ms. Andersen to pay many thousands of dollars for an obligation she did not owe. The record companies pursued their collection activities and this lawsuit for the primary purpose of threatening Ms. Andersen (and many others) as part of its public relations campaign targeting electronic file sharing.

37. The record companies have falsely represented and pleaded that information obtained in this invasive and secret manner is proof of Ms. Andersen’s alleged downloading and distribution of copyrighted audio recordings. Ms. Andersen never downloaded music but has been subjected to public derision and embarrassment.....

40. The record companies knowingly represented materially false information to Ms. Andersen in an attempt to extort money from her.

41. For example, between February and March 2005, the record companies, through their collection agent Settlement Support Center, falsely claimed that they had proof that Ms. Andersen’s IPA had been “viewed” downloading and distributing over 1,000 audio files for which it sought to collect hundreds of thousands of dollars. This statement was materially false. Ms. Andersen never downloaded or distributed any audio files nor did the record companies or any of their agents ever observe any such activity associated with her personal home computer.....

49. Despite having never observed any downloading or distribution associated with Ms. Andersen’s personal home computer and despite refusing Ms. Andersen’s offer to allow an inspection of her own computer, the record companies wrongfully continued their improper debt collection activities against her.....

50. The record companies pursued debt collection activities for the inappropriate purpose of illegally threatening Ms. Andersen and many thousands of others. This tortious abuse was motivated by and was a central part of a public relations campaign targeting electronic file sharing.

51. An employee of Settlement Support Center admitted to Ms. Andersen that he believed that she had not downloaded any music. He explained that Settlement Support Center and the record companies would not quit the debt collection activity against her because to do so would encourage other people to defend themselves against the record companies’ claims.

52. The record companies were aware of Ms. Andersen’s disabilities and her serious health issues. Settlement Support Center knew that its conduct would cause extreme distress in Ms. Andersen. As a result of defendant’s conduct, Ms. Andersen suffered severe physical and emotional distress and health problems.

53. The record companies’ conduct resulted in damages, including harm to Ms. Andersen’s health and property in an amount to be specifically proven at trial......

55. Oregon’s Unlawful Trade Practices Act prohibits those in trade or commerce from engaging in unfair or deceptive practices in the course of business with consumers. ORS 646.605 et seq.

56. The record companies’ agent, Settlement Support Center, is a company doing business in Washington which was established to engage in debt collection activities in manystates, including Washington and Oregon.

57. Settlement Support Center acting as the record companies’ agent made false and deceptive statements to Ms. Andersen in an attempt to mislead, threaten, and coerce her into paying thousands of dollars.

58. Settlement Support Center acting as the record companies’ agent has made similar false and deceptive statements to many other residents of Washington and Oregon, and across the country. The public interest has been and continues to be directly impacted by plaintiffs’ deceptive practices.

59. The record companies’ conduct resulted in damages and harm to Ms. Andersen and her property in an amount to be specifically proven at trial. ....

61. The Oregon Racketeer Influenced and Corrupt Organization Act prohibits companies from engaging in organized racketeering or criminal activities. ORS 166.715 et seq.

62. As fully set forth above, the record companies hired MediaSentry to break into private computers to spy, view files, remove information, and copy images. The record companies received and transmitted the information and images to Settlement Support Center. As the record companies’ agent, Settlement Support Center then falsely claimed that the stolen information and images showed Ms. Andersen’s downloading and distributing over 1,000 audio files. The record companies falsely claimed that Ms. Anderson owed hundreds of thousands of dollars in an attempt to coerce and extort payment from her.

63. The record companies directed its agents to unlawfully break into private computers and engage in extreme acts of unlawful coercion, extortion, fraud, and other criminal conduct.

64. The record companies and their agents stood to financially benefit from these deceptive and unlawful acts. Proceeds from these activities are used to fund the operation of the record companies’ continued public threat campaigns.

65. These unlawful activities were not isolated. The record companies have repeated these unlawful and deceptive actions with many other victims throughout the United States.

Answer and counterclaim.

Ms. Andersen is represented by:
Lory R. Lybeck
Lybeck Murphy, LLP
500 Island Corporate Center
7525 SE 24 Street
Mercer Island, WA 98040-2336
(206) 230-4255
lrl@lybeckmurphy.com

===================

Ty Rogers, Ray Beckerman, and Dan Singer.

We are lawyers in New York City. We practice law at Beldock Levine & Hoffman LLP.

Through the Electronic Frontier Foundation we and our firm have undertaken to represent people in our area who have been sued by the Recording Industry Association of America (RIAA) for having computers whose internet accounts were used to open up peer-to-peer file sharing accounts.

We find these cases to be oppressive and unfair, as large law firms financed by the recording industry sue ordinary working people for thousands of dollars.

We have set up this blog in order to collect evidence and input about these oppressive lawsuits.

We hope you will find it useful.

If you have information relating to the music industry litigation which you feel would be appropriate for publication here, please send it to musiclitigation@earthlink.net

Thank you.

Sincerely yours,

-Ray Beckerman
-Morlan Ty Rogers
-Daniel A. Singer

www.blhny.com

WOW! I loved this part the best

"Oregon RICO violations, fraud, invasion of privacy, abuse of process, electronic trespass, violation of the Computer Fraud and Abuse Act, negligent misrepresentation, the tort of "outrage", and deceptive business practices"

Heh, heh. It just keeps getting better.

Give em hell!

Well, to echo what I said in another thread, "Praise the LORD!" It's about time.

"An employee of Settlement Support Center admitted to Ms. Andersen that he believed that she had not downloaded any music. He explained, however, that Settlement Support Center and the record companies would not quit their debt collection activities because to do so would encourage other people to defend themselves against the record companies’ claims."

The Bible has a thing or two to say about oppressing the poor, and by extension, the disabled. I feel for this lady. I can't say I have never downloaded music. I can say I haven't used peer-to-peer for well over a year. I certainly don't like gangsta rap, and anybody who said I downloaded a gangsta song I would say was smoking crack. I'm never downloading anything at 4am. I'm disabled. It sounds like anybody is a target -- they could pick anyone out at random and file a suit and try to extort money from you.

We should try to make as many people as possible aware of this lawsuit. It proves better than anything so far that what the RIAA is doing is, literally, a racket.

What is shameful is that it took a poor, disabled, single mom to stand up to these goons.

One question remains, though. If MediaSentry is supposed to get data to support these claims, on what basis was this suit brought? If MediaSentry has "images" of downloading activity taking place, just whose computer was doing it? Is MediaSentry's data mining procedure so inaccurate? If so, that means that there are hundreds if not thousands of falsely accused people. And that, my friends, sounds like grounds for a class action countersuit. Ya think?

Note this message on FullDisclosure about MediaSentry false positive identifications:

http://seclists.org/lists/fulldisclosure/2005/Jan/0085.html

At 4:24 a.m.--obviously, it was the 8-year-old. That's when all those little tykes get on KaZaa...take that to a jury and see how it flies.

If the defendant "demands" a jury trial, is there any way a judge can still just dismiss it? Or does that mean it really will go to court?

YOU! the Judges, attorneys, cops and law-makers, the Horin Hashs and the Feinsteins:

If you are assisting these foreigns companies in the persecution of the US citizen while in the exercise of their constitutional right you are TRAITORS!

You will BE deal with as such!

It is better for you if our courts rather than us deal with you because at least you will live.

So if I was you I will stop trying to corrupt our governements our Justice and our institution because when it is gone it is gone.

The time for the justice to deal with these TRATORS is overdue! If constitutional reddress failed to occur for to long I don't want to think about what will happen next!


RIAA parasites: It is time to refund the money you stold NOW! T

he rope is going to break!

MajorThreat, you pack a lot of heat! (I hope that statement can stay confined as a definition to only your words.)

Please don't do/incite any violence!

(seriously)

I love the "fight back" spirit presented by this article.

Folks, should I do the "time-warp" and keep it fresh on the front page for a couple days? (Or, at least until the next update about it from Ray Beckerman & Associates?)

Yes.

I got some other stuff I want to keep on the top of the front page for a while too!

(Dmusic techs are gonna KILL me! lol)

At least, since the recent Dmusic overhaul went into effect, the "time-warps" that I do to Boycott-Riaa articles no longer affect the Dmusic pages... so maybe fu-dog, furiousBall, and etc. won't bitch at me too much.

(Crossing fingers!)

"If the defendant "demands" a jury trial, is there any way a judge can still just dismiss it?"

Yes. If the judge finds the counterclaims are not valid he can dismiss them. On the one hand, she is claiming it wasn't her. On the other hand, she is claiming her computer was illegally invaded. These two claims are obviously inconsistent. I believe most of these claims were tried already in that New Jersey case. That doesn't mean they won't work here though.

"On the one hand, she is claiming it wasn't her. On the other hand, she is claiming her computer was illegally invaded. These two claims are obviously inconsistent."

If the first claim is true, then if they had invaded her computer, they would know she had not downloaded. Because she is apparently on record as inviting them to scan her computer for evidence, one would presume there is no there there.

Whether MediaSentry actually invaded her computer or invaded a computer they THOUGHT was her computer, remains to be seen. Certainly there was an attempt to invade her computer, whether they actually did or not.

I believe MediaSentry should be made to produce the evidence, and explain how the evidence was gathered, and why they believe it really was a computer belonging to the accused. That might be very interesting.

Gee, you mean I can add to my list of people the RIAA sues (12-year-old girls and dead grandmas) disabled moms too? Isn't that sweet of them.

Thank you, mroop.

I followed the link provided by autodiact and I found it rather enlightening.

"Just this morning we received a message from the copyright holder (Not
MediaSentry, they've completely ignored our emails and phone calls
through the whole process) stating "Please disregard the notice you
received. It was generated incorrectly, and the case ID or IDs
mentioned are now closed. (A configuration problem with our
anti-piracy vendor's system caused some notices to be sent in error.)

The point to note here is that MediaSentry remained silent about their error. It would appear to support allegation #15 (above).

I'd love to see Ms.Andersen's case go to trial, but I expect that if it looks like she has a case, the corporations will find a way to bury the case, buy her off or she might just disappear. Who knows...?

I don't know what p2p app she's being accused of using here but I'm curious about 1 thing.

most of these apps come with an end user agreement that clearly says you can't use the app to collect info about individuals or something to that effect. so how is it that media sentry is doing just that, in clear violation of the eula that they had to agree to to get on the network then turning that info over to the riaa so it can be used in court?

I guess what I'm asking is how is it they are suing on the basis of illegally obtained information?

"I guess what I'm asking is how is it they are suing on the basis of illegally obtained information?'

I have wondered about this often. As a WinMX user, I noticed that THEIR EULA contains similar language.
But there is a theory I have, that may not be correct though, since I am not certain of how some P2P work.
Kazaa, and some others are merely Clients for an ( open source ? ) protocol.
If the protocol is open source, how hard is it for an **AA controlled company to hire someone to create an app that uses these protocols, specifically for the purpose of searching the shared files of other users of that protocol ?
Using mediasentry as an example,
If mediasentry is using their own independently created app, then they are theoretically outside the liability of the Eula of other clients, since they are not using a client bound by the other clients EULA's.
Just a thought.

This is awesome - We need to get behind this lady either with money or by sending out letters or something. It's about time someone stood up to them and I love the HUGE list of things she is suing them for. The list is quite impressive! It really shows how far (illegally) the RIAA will go with their scare tactics!

"It really shows how far (illegally) the RIAA will go with their scare tactics!"

It doesn't show jack shit unless you accept her allegations as true, which you cannot do. It is up to the judge to decide. You cannot accept the plaintiff's allegations as true, just as you cannot accept the defendant's allegations as true.

"Certainly there was an attempt to invade her computer, whether they actually did or not."

Nope. There was an attempt to "invaded" someone's computer, not necessarily her computer.

Personally, I have a hard time believing that what Media Sentry is doing is some kind of illegal invasion.

I took a quick look at 18 USC 1030 and it seems to prohibit accessing a computer without "authorization". If you are using a file sharing program with information in your shared folder then I would say you are authorizing other users of the program to access your shared folder. Otherwise all use of file sharing program would be illegal.

Question: Is a EULA legally binding or does it just protect the company from any legal responsibility? In other words, does it just cover their behinds, or could it be used to sue the RIAA?

"most of these apps come with an end user agreement that clearly says you can't use the app to collect info about individuals or something to that effect. so how is it that media sentry is doing just that, in clear violation of the eula that they had to agree to to get on the network then turning that info over to the riaa so it can be used in court?

I guess what I'm asking is how is it they are suing on the basis of illegally obtained information?"

So the owner of the p2p app can sue for breach of contract. That's the remedy for violating a eula.

And since the burden of proof IS on the accuser ....
Admit nothing and DEMAND proof
( in these cases of SPECIFIC acts of infringement ).

the might be more of these cases if it weren't so prohibitively ( and firghteningly ) expensive to defend oneself.

It's too bad that RICO probably won't work ( I think it's been tried before ). Only if the RIAA stand to lose as much as those that are trying to defend themselves can there be ANY sort of balance.

"Question: Is a EULA legally binding or does it just protect the company from any legal responsibility? In other words, does it just cover their behinds, or could it be used to sue the RIAA?"

I was typing while you were posting. Violating a EULA just gives the company the right to sue for breach of contract as far as I know. Violating a EULA is not like violating a statute or court decision.

"Question: Is a EULA legally binding or does it just protect the company from any legal responsibility? In other words, does it just cover their behinds, or could it be used to sue the RIAA?"

Grokster had a EULA.
It didn't help them.

This Excerpt from Groksters Eula ...

"1. Violation of Copyright and Other Laws When Using Grokster

PLEASE NOTE THAT GROKSTER RESPECTS THE RIGHT OF COPYRIGHT OWNERS AND IS FULLY COMMITTED TO PROTECT THEIR RIGHTS. GROKSTER EXPECTS ALL GROKSTER DESKTOP USERS AND GROKSTER WEB SITE USERS TO DO THE SAME. WE, THEREFORE, ASK YOU TO PAY SPECIAL ATTENTION TO AVOID VIOLATING COPYRIGHT LAWS AND REGULATIONS. AS A CONDITION TO USE THE GROKSTER PRODUCTS AND SERVICES, YOU MUST AGREE THAT YOU WILL NOT USE GROKSTER TO INFRINGE THE INTELLECTUAL PROPERTY OR OTHER RIGHTS OF OTHERS IN ANY WAY. UNAUTHORISED COPYING, DISTRIBUTION, MODIFICATION, PUBLIC DISPLAY, OR PUBLIC PERFORMANCE OF COPYRIGHTED WORKS IS AN INFRINGEMENT OF THE COPYRIGHT HOLDERS' RIGHTS….YOU ARE HEREBY PUT ON NOTICE THAT YOU ARE ENTIRELY RESPONSIBLE FOR YOUR CONTENT AND FOR ENSURING THAT IT COMPORTS WITH ALL APPLICABLE LAWS, INCLUDING ALL COPYRIGHT AND DATA-PROTECTION LAWS. IN CASE YOU FAIL TO COMPLY WITH LAWS REGARDING COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS AND DATA-PROTECTION, YOU MAY, BY THE RELEVANT AUTHORITIES, BE EXPOSED TO CIVIL AND CRIMINAL LIABILITY, INCLUDING FINES AND JAIL TIME."

If I understand you correctly, Shadowmom this particular line ....

"AS A CONDITION TO USE THE GROKSTER PRODUCTS AND SERVICES, YOU MUST AGREE THAT YOU WILL NOT USE GROKSTER TO INFRINGE THE INTELLECTUAL PROPERTY OR OTHER RIGHTS OF OTHERS IN ANY WAY. "

SHOULD have been able to "cover their butts ".

It didn't.

Any rights are only as strong as ones financial ability to defend them.

"SHOULD have been able to "cover their butts ".

It didn't."

It didn't cover their butts because of all the other crap they pulled. Read the Grokster case and stop being such an ignorant dumbass. Thanks in advance.

"Any rights are only as strong as one's financial ability to defend them."

Functionally unequal rights?
The rights of the well-to-do and powerful corporate entities are 'stronger' than the same rights of those with less money and power. This results in disparity of justice, and makes citizens cynical.

BTW, did Grokster's attorneys emphasize their Eula statement ("As a condition . . . etc.") as showing good faith in the aspect of their not inducing infringement?

BTW, another criticism: One reason for Iost faith in our judicial system occurs when a judge disallows pertinent evidence from being presented in civil cases without obvious justification. This has an effect of casting doubt on judges' presumed objectivity

So...a person being sued could not use the fact that the RIAA violated the EULA as a defense. It would only allow the company (say, KaZaa) to sue for breach of contract.

Okay, I was typing without having the benefit of reading mroop's response to Dreddsnik.
It's regrettable that Grokster pulled crap as he said. Otherwise, it was a good point to make.

I still have another issue in my mind about what was said previously. It's one thing for a file sharer to leave themselves vulnerable because of their shared folder, but wouldn't it be quite another for an entity such as MediaSentry to obtain information that goes beyond what a "browsing" privilege to that computer would encompass? (Or are they limiting themselves to just the data available from a browsing function by any connecting file sharer?)

"It would only allow the company (say, KaZaa) to sue for breach of contract."

File sharing companies should be filing suits against the RIAA and its lackeys for just that. Why don't they?

Or at least, they could have 'threatened' to do so.

"BTW, did Grokster's attorneys emphasize their Eula statement ("As a condition . . . etc.") as showing good faith in the aspect of their not inducing infringement?"

It doesn't matter because there was plenty of evidence showing that they were in fact interested in inducing infringement.

"BTW, another criticism: One reason for Iost faith in our judicial system occurs when a judge disallows pertinent evidence from being presented in civil cases without obvious justification."

I don't know what you are talking about and I wonder if you do. If a judge does not allow evidence to be presented then a reason is always given. The attorney objects to the evidence and must give a legal reason for the objection. The judge then decides whether or not to admit the evidence based upon the legal reason presented by the attorney.

"So...a person being sued could not use the fact that the RIAA violated the EULA as a defense. It would only allow the company (say, KaZaa) to sue for breach of contract."

Correct. The RIAA violating a eula is not a defense to a claim of copyright infringement. They may be guilty of violating a eula, but you are still guilty of the infringement.

Gotcha, mroop. Thank you very much!

"It's one thing for a file sharer to leave themselves vulnerable because of their shared folder, but wouldn't it be quite another for an entity such as MediaSentry to obtain information that goes beyond what a "browsing" privilege to that computer would encompass? (Or are they limiting themselves to just the data available from a browsing function by any connecting file sharer?)"

I don't know exactly what Media Sentry is doing, I assume they are going into your share folder and getting your IP. If they were going into other parts of your computer then that would most likely be considered to be going into your computer without authorization. But when you open a program with your share folder, then you are clearly saying to the world "Hey, come into my share folder and take what you want." That's how I see it.

"File sharing companies should be filing suits against the RIAA and its lackeys for just that. Why don't they?"

First, why put your hand in the hornet's nest. Second, what is the damage to the file sharing company when the RIAA violates a eula? What are their losses?

"Gotcha, mroop. Thank you very much! "

You're welcome. : )

I'm such a dunce...it just pierced my thick skull why no one would use the eula defense...because they also violated it. The ones I've read prohibit the user from uploading/downloading copyrighted material. Somebody hit me for being so slow...I deserve it.

"I don't know what you are talking about, and I wonder if you do. If a judge does not allow evidence to be presented then a reason is always given. The attorney objects to the evidence and must give a legal reason for the objection. The judge then decides whether or not to admit the evidence based upon the legal reason presented by the attorney."

Some time back, I read of an instance where a witness was not allowed to testify on behalf of the defense, and no satisfactory valid reason was subsequently stated. I'm wondering how that could have happened...unless, as you say, the plaintiff's attorney presented an argument that appealed to the judge.
Preventing the testimony of a witness that could have helped the case for the defense is not vastly different from disallowing evidence. I would like to think those decisions are typically made with great care, as you mentioned.

Thanks for your input.
And thanks for not coming down hard on me.

"If a judge does not allow evidence to be presented then a reason is always given. The attorney objects to the evidence and must give a legal reason for the objection. The judge then decides whether or not to admit the evidence based upon the legal reason presented by the attorney."

Sometimes, you have to admit, the system is not so cut and dry. Considering the number of overturns on appeal that go on regularly. I'm not disagreeing with the statement per se, but I also do not believe in this notion of infallability of some of these judgements. Judges are human too and are subject to error and sometimes criminal malfeasance.

"It didn't cover their butts because of all the other crap they pulled. Read the Grokster case and stop being such an ignorant dumbass. Thanks in advance."

Hi, thanks for the advice mr stanky shitheel pusbag .
Always appreciated

Oh, and .. lick my balls.

( As long as we are playing the high school name calling game ).

Thanks in advance.

"What is the damage to the file sharing company when the RIAA violates a eula? What are their losses?"

Okay, are we invoking tort comparisons here?
I could likewise ask what are the documented losses for file-sharing?
Theoretical losses? Or do we just take the RIAA's word for their estimates? And where are the hard facts to support those estimates?

(Not being in your face, but kind of playing around to see what information might be brought up. TIA.)

"Okay, I was typing without having the benefit of reading mroop's response to Dreddsnik.
It's regrettable that Grokster pulled crap as he said. Otherwise, it was a good point to make."

Thank you.
It was the only minor point I was trying to make, and just to show shadowmom that the EULA may or may not help.
Incidently, They DID use the EULA in Grokster ( did read it in fact ). It just wasn't enough.

Oops, I said "tort comparisons".
I meant "loss comparisons."

"Correct. The RIAA violating a eula is not a defense to a claim of copyright infringement. They may be guilty of violating a eula, but you are still guilty of the infringement."

Maybe this has something to do with Santangelo's "Clean Hands" affirmative defense. Commiting a crime to find evidence of a crime ?
Only time will tell

"The RIAA violating a eula is not a defense to a claim of copyright infringement. They may be guilty of violating a eula, but you are still guilty of the infringement."

Important point by mroop.

". . . Santangelo's "Clean Hands" affirmative defense. Commiting a crime to find evidence of a crime?"

That's where I had still been planning to go, but Dreddsnik beat me to it.

It should matter, I would think.
Even a law enforcement officer catching someone in the act of a crime will not prevail if entrapment is involved, so it should matter how the evidence is obtained to prosecute infringement, too, shouldn't it?

Using illegal means to catch someone doing something illegal. That's an issue.

And, by the way, how are the RIAA and its lackeys empowered to act as law enforcers?
I understand the DMCA, and how the RIAA's interests are at stake, but what gives them the right to do something against the law to try to catch others doing something against the law? (This really bugs me, as you can tell.)

Incidentally, I hope no one thinks I am condoning or overly sympathizing with the plight of those who participate in copyright infringement. That's not where I'm coming from.

"Some time back, I read of an instance where a witness was not allowed to testify on behalf of the defense, and no satisfactory valid reason was subsequently stated."

There might not have been a reason stated in what you were reading, but there was a reason given in court.

"Preventing the testimony of a witness that could have helped the case for the defense is not vastly different from disallowing evidence."

Just because a witness could help the defense does not mean it is allowable testimony. Lawyers always try to get in stuff that will help their case, that does not mean it is permissible evidence. There are many reasons why the testimony might not be allowed into evidence.

"Thanks for your input.
And thanks for not coming down hard on me."

No problem. It's only lying shitheels like Dreddsnik or people like Awehr who constantly misstate the law and the facts that I go after with ruthless abandon. Awehr particularly drives me crazy because he tries to sound smart with all these big words but he has no damn clue what he is talking about when it comes to legal matters.

"Sometimes, you have to admit, the system is not so cut and dry. Considering the number of overturns on appeal that go on regularly. I'm not disagreeing with the statement per se, but I also do not believe in this notion of infallability of some of these judgements. Judges are human too and are subject to error and sometimes criminal malfeasance."

I never said judges were don't make mistakes. I just said the judge makes a decision based upon a legal reason. I did not say the judge always makes the right decision.

"Okay, are we invoking tort comparisons here?
I could likewise ask what are the documented losses for file-sharing?"

I was not invoking tort comparisons. Losses must be proven in contract cases. Violating a eula is a breach of contract.

Losses do not have to be proven in copyright infringement cases because there are statutory damages. The RIAA can choose to not prove damages and instead opt for the statutory damages, which I believe are 750.00 minimum per infringement.

"Even a law enforcement officer catching someone in the act of a crime will not prevail if entrapment is involved, so it should matter how the evidence is obtained to prosecute infringement, too, shouldn't it?"

You can't even begin to compare the actions of a governmental agent in a criminal enforcement action to a private entity in a civil action. There is no similarity at all.

"Losses do not have to be proven in copyright infringement cases because there are statutory damages. The RIAA can choose to not prove damages and instead opt for the statutory damages."

Okay. That's good information.

"And, by the way, how are the RIAA and its lackeys empowered to act as law enforcers?"

Well, they're not acting as enforcers of criminal law. They are acting as private entity protecting their own interests in a civil matter.

"what gives them the right to do something against the law to try to catch others doing something against the law? (This really bugs me, as you can tell.)"

Again, we are talking about civil matters, not criminal matters.

"You can't even begin to compare the actions of a governmental agent in a criminal enforcement action to a private entity in a civil action."

You're saying that the manner as to how incriminating evidence is obtained by a private entity in a civil action should have no potential negative impact on their case in civil court?

"Commiting a crime to find evidence of a crime ?"

Of course nobody is committing a crime. These are civil matters, not criminal matters. Nice try, douchebag. You lose again. : )

"You're saying that the manner as to how incriminating evidence is obtained by a private entity in a civil action should have no potential negative impact on their case in civil court?"

Nope, I'm not saying that. I'm just saying you can't compare criminal law (entrapment) to a civil case of copyright infringement.

And remember we are talking about violation of a eula, which would be a breach of contract action against Grokster, who is not the defendant in the case - the defendant is the infringer. I don't know jack squat about the claim that the defendant computer was illegally "invaded", but like I said above - I don't know how you can claim your computer was illegally invaded when you put stuff in your share folder and offer it to the world.

"Well, they're not acting as enforcers of criminal law. They are acting as private entity protecting their own interests in a civil matter."

What's to prevent the argument from prevailing that the DMCA is a law for which criminal penalties could apply?
After all, the RIAA claims infringement is theft, and theft is a crime.
Isn't there an argument to be made that the more severe form of penalty for infringement is that which ensues from having committed a crime? And, if so, that brings up some possibilities...and at least one of them would be relevant to a criminal matter.
If the greater form of penalty involves the commission of a crime, then the issue of the aforementioned act of the RIAA committing a crime in acting like a law enforcer should have some merit, should it not?

"I don't know how you can claim your computer was illegally invaded when you put stuff in your share folder and offer it to the world."

Only if additional information was inappropriately obtained beyond that which is available by any other file sharer who can click the "browse host" button or similar option.

"After all, the RIAA claims infringement is theft, and theft is a crime."

They claim it is theft in their press releases, they have never filed a police report claiming theft.

"What's to prevent the argument from prevailing that the DMCA is a law for which criminal penalties could apply?"

I don't know what the DMCA has to do with these cases at all. I believe the claims are Title 17 infringement claims.

"If the greater form of penalty involves the commission of a crime, then the issue of the aforementioned act of the RIAA committing a crime in acting like a law enforcer should have some merit, should it not?"

I'm not sure what you are trying to say. The RIAA is filing claims of civil copyright infringement. Criminal law has nothing to do with it. These are civil actions filed in civil court by a private entity.

"Only if additional information was inappropriately obtained beyond that which is available by any other file sharer who can click the "browse host" button or similar option."

I agree and I did say that above somewhere. : )

"No problem. It's only lying shitheels like Dreddsnik or people like Awehr who constantly misstate the law and the facts that I go after with ruthless abandon."

"Of course nobody is committing a crime. These are civil matters, not criminal matters. Nice try, douchebag. You lose again. : )"

Welcome to intelligent debate 101 as taught by Mroop.

The only thing you do with ruthless abandon is throw out insults to those that don't agree with you. It's personal for you .

Whats Ironic is that ...

"I don't know how you can claim your computer was illegally invaded when you put stuff in your share folder and offer it to the world. "

I tend to agree with this. It IS a bit strange.

""what gives them the right to do something against the law to try to catch others doing something against the law? (This really bugs me, as you can tell.)"

Again, we are talking about civil matters, not criminal matters. "

huh.
So,
A private corporation, in an effort to protect their interests, can break into my home, ransack it to find counterfeit CD's, even though they ARE NOT a law enforcement agency, because it is a Civil matter, not a Criminal matter ?

Grumpy said: "You're saying that the manner as to how incriminating evidence is obtained by a private entity in a civil action should have no potential negative impact on their case in civil court?"

Mroop responded: "Nope, I'm not saying that. I'm just saying you can't compare criminal law (entrapment) to a civil case of copyright infringement."

Acknowledged. But, if infringement is tantamount to some degree of theft (and theft being a crime), it might be interesting to see what impact the manner of obtaining evidence would have on a judge or jury.
It may even have some peripheral effect in civil litigation, though, as you already pointed out, in civil matters it would be less likely to do so.

"These are civil actions filed in civil court by a private entity. "

By a private entity that has been so far unable to provide concrete evidence of specific examples of the infringement alleged.

Or,
A private entity that can't provide evidence becuase it was obtained by criminal means.

If either of these statements are false, then these cases are pretty cut and dry, and will be over soon.

Scream and insult as much as you wish. Call me any name you like.
Committing a criminal act to get evidence, whether the case is civil or not, is still a CRIME.
That may not be what the RIAA has done. If their "evidence" is so ironclad .. why have they gone to such great lengths to avoid PRESENTING IT .
Show your evidence, case closed ..right ?

I can't seem to get over the prospect of a private corporation violating a contract (eula) and possibly also exceeding the sharing and browsing functions of file sharing in order to extract additional information in the pursuit of evidence for litigious purposes.
(I'll add more later.)

Grumpygeezer:
"Acknowledged. But, if infringement is tantamount to some degree of theft (and theft being a crime), it might be interesting to see what impact the manner of obtaining evidence would have on a judge or jury."

Dreddsnik:
"Committing a criminal act to get evidence, whether the case is civil or not, is still a CRIME.
That may not be what the RIAA has done. If their "evidence" is so ironclad .. why have they gone to such great lengths to avoid PRESENTING IT ."

This is where I "think" the "Clean Hands" comes into play. We'll find out soon enough, and all the namecalling in the world won't mean a thing.

1) To initiate the hunt, a contract is violated.
2) Information beyond file sharing may have been inappropriately obtained.
3) The claim to the news media is made that infringement is theft.
4) If true, theft is a crime at some level, and criminal issues could apply.
5) If not true, the RIAA has put itself in another unenviable position as it already has in items 1 and 2.

I'd like to follow these points with some more observations, but first I'll wait awhile and give others a chance to post. I'm hogging the forum.

"I'd like to follow these points with some more observations, but first I'll wait awhile and give others a chance to post. I'm hogging the forum. "

Gosh no Grumpy, not at all.
Even though others are posting similar
arguments, you are the only one that is not receiving personal attacks.
Please, by all means, the floor is yours.
The infomation from this is VERY valuable.

Okay. Thanks!
However, I don't know about other readers who may otherwise be inclined to post, but my excessive typing may discourage them. And, anyway, I'd still need to let mroop follow up, so I'll wait.

Mroop said: "I don't know how you can claim your computer was illegally invaded when you put stuff in your share folder and offer it to the world."

Grumpy says: I can if additional information was inappropriately obtained beyond that which is available by any other file sharer who clicks the "browse host" button or similar option. There is a privacy law that would pertain to this type of illegal activity.

Okay, folks, this time I REALLY plan to hold off for awhile.
(I mean, like //gasp// an HOUR!)

If mroop chooses to answer you, you know it won't take an hour, don't you? I'm following this thread with a great deal of interest, and I want to thank you all for keeping it civil as opposed to criminal. I'm learning a lot here tonight. Thanks.

Curiosity .....

Take and ISP like Comcast, for example ..

Pick 100 RANDOM ip's currently in use.

What percentage of those IP's "owners"
have at least one copyrighted music files
on their computer ?

Send a letter threatening legal action to
all of them.

How many will cave out of fear ?

Just a guess, Dreddsnik? The ones who probably have KaZaa on their desktop? (Just joking...please don't hurt me!)

"Just a guess, Dreddsnik? The ones who probably have KaZaa on their desktop? (Just joking...please don't hurt me!) "

LOL ...

Not necessarily, I think you know what I mean.
Even if you NEVER used Kazaa, or ANY other P2P, Chances are excellent you have an audio file of a copyrighted song on your system, through any number of legal means. Ripping a CD ... DL for an IPOD, for example. It's common. VERY common.

What I am getting at is ....
Even without ANY evidence, by randomly choosing an IP, chances are EXCELLENT that if they send a threat to that person, that person WILL have an audio file. Chance has also been in their favor that the person they threaten will pay rather than fight.

I wonder how much of THAT has been happening. The RIAA has been so reluctant to provide evidence that one HAS to wonder .

"So,
A private corporation, in an effort to protect their interests, can break into my home, ransack it to find counterfeit CD's, even though they ARE NOT a law enforcement agency, because it is a Civil matter, not a Criminal matter ?"

Jeez, you are slow. Breaking into your house is a violation of CRIMINAL LAW. Violating a eula is a BREACH OF CONTRACT.

"Scream and insult as much as you wish. Call me any name you like.
Committing a criminal act to get evidence, whether the case is civil or not, is still a CRIME."

What the hell is wrong with you? I NEVER SAID IT IS NOT A CRIME IF SOMEONE COMMITTS A CRIMINAL ACT TO OBTAIN EVIDENCE!

Stop putting words in my mouth, you tool. You are misrepresenting what I say and I don't know if it is intentional or you just have a reading comprehension problem.

IF an agent of the RIAA were to have routinely committed violations of privacy to obtain evidence, this would open up an interesting set of possibilities.

"Jeez, you are slow"

"What the hell is wrong with you?"

"Stop putting words in my mouth, you tool. You are misrepresenting what I say and I don't know if it is intentional or you just have a reading comprehension problem. "

Welcome back to Debate 101 as taught
by Mroop.

"Jeez, you are slow. Breaking into your house is a violation of CRIMINAL LAW. Violating a eula is a BREACH OF CONTRACT. "

I never said that violating the EULA was a crime. I simply answered shadowmom's question of whether or not the EULA could be used to cover their butts. so ..
"stop putting words in my mouth, you tool. You are misrepresenting what I say and I don't know if it is intentional or you just have a reading comprehension problem. " As you so eloquently put

"What the hell is wrong with you? I NEVER SAID IT IS NOT A CRIME IF SOMEONE COMMITTS A CRIMINAL ACT TO OBTAIN EVIDENCE!"

Never said you did ....
I am trying to figure out why the RIAA is so reluctant to bring out "evidence".

so ..
"Stop putting words in my mouth, you tool. You are misrepresenting what I say and I don't know if it is intentional or you just have a reading comprehension problem. " , as you so eloquently stated .

"Never said you did ...."

Yes you did. Here is what you said:

"Scream and insult as much as you wish. Call me any name you like.
Committing a criminal act to get evidence, whether the case is civil or not, is still a CRIME."

The implication here is clearly that I said it is not a crime to commit a criminal act to get evidence. If that was not your intent, then you need to brush up on your writing skills.

Saw this via a local political blog in Oregon. I'm positively delighted.

Our organization operates a website - www.nwportal.org - that basically allows easy access to local political blogs. Progressive political blogs. We're not a conservative site.

Finally, someone determined to give the RIAA the hell it deserves. All it will take is a few more people like this to be pains in the ass, and the RIAA's legal crusade will become hopelessly bogged down.

"IF an agent of the RIAA were to have routinely committed violations of privacy to obtain evidence, this would open up an interesting set of possibilities."

As noted above, the attorney is claiming a violation of 18 USC 1030. I'm not buying it until I see some evidence.

""What the hell is wrong with you? I NEVER SAID IT IS NOT A CRIME IF SOMEONE COMMITTS A CRIMINAL ACT TO OBTAIN EVIDENCE!""

Thus the very intriguing "Clean Hands" portion of the defense.
We are all very curious as to what this is being based on.
If, in fact, as I said before, if the RIAA evidence is as solid as they claim, they would bring it right out, rub the defendants nose in it, slam-dunk .. case closed. The fact that they are not doing just that, is making us wonder just what exactly they are using for evidence, and how they obtained it, and if it relates to the "clean hands" defense.
Stupid people just say "duh ok, you win heres your cash " or ." the law MUST be right or it wouldn't be law .. right ? ".

""Stop putting words in my mouth, you tool. You are misrepresenting what I say and I don't know if it is intentional or you just have a reading comprehension problem. "

See if you can read and comprehend your own writings.

""Scream and insult as much as you wish. Call me any name you like.
Committing a criminal act to get evidence, whether the case is civil or not, is still a CRIME."

Very interesting.
Trying to find where in that quote from me I say that you claimed that this was NOT a crime.
I do see that I say that this is my opinion ....

"Committing a criminal act to get evidence, whether the case is civil or not, is still a CRIME."

Regardles of what names you call me ..
"Scream and insult as much as you wish. Call me any name you like. "

Seems like you are ...
"misrepresenting what I say ... "

So, again ...
"""Stop putting words in my mouth, you tool. You are misrepresenting what I say and I don't know if it is intentional or you just have a reading comprehension problem. "

"As noted above, the attorney is claiming a violation of 18 USC 1030. I'm not buying it until I see some evidence. "

Kind of like the Defense no buying into the RIAA charges of infringement, without seeing the evidence. Pretty neat .

PhantomGhost, we are delighted to see you here in spite of the disagreement several of our members are having here. Please post in the news thread so we can find out a little more about you. Mroop, Dreddsnik, grumpygeezer, carry on. You're having such a good time!

Dude - it is "unclean hands", not "clean hands". lol

Nah,
Time for bed here.
Grumpy seems to share a lot of my concerns, and he is much better at forming his questions/arguments than I.

Plus .. BONUS ....
Mroop doesn't have a personal "Hate On" for him. So I am leaving this to him.

It's the only way it will remain civil.

"Dude - it is "unclean hands", not "clean hands". lol "

DAMN ..
That officially invalidates EVERY statement I have ever made and proves beyond a shadow of a doubt that I am a total "inbred Jed". My god that's BRILLIANT !! Congrats, I now hang my head in shame ....

LOLOLOLOL ROFL !!!

From what little I've read about the Unclean Hands doctrine it seems to say that ANY immoral or unethical conduct, not just illegal conduct on behalf of the plaintiff that relates to the case can be used to dismiss the suit.

Could it be argued that the recording contract itself in which copyright is transferred is immoral and/or illegal? I know George would think so.

Isn't price fixing, which the RIAA has already been convicted of, immoral/unethical?

change to : immoral and/or unethical?

I doubt the recording contracts are illegal.

( voice of Marvin the Martian )

""As noted above, the attorney is claiming a violation of 18 USC 1030. I'm not buying it until I see some evidence "

( Mroop touches self )

grumpygeezer:

"3) The claim to the news media is made that infringement is theft.
4) If true, theft is a crime at some level, and criminal issues could apply."

Courts have already decided so far that it is COPYRIGHT INFRINGEMENT, not theft. The news media uses the words "steal" and "theft" to make it seem more exciting.

Since it is COPYRIGHT INFRINGEMENT, it is a civil manner, not a criminal one.

"From what little I've read about the Unclean Hands doctrine it seems to say that ANY immoral or unethical conduct, not just illegal conduct on behalf of the plaintiff that relates to the case can be used to dismiss the suit.

Could it be argued that the recording contract itself in which copyright is transferred is immoral and/or illegal? I know George would think so."

You can't bring up these extraneous matters for unclean hands. Here's a definition I googled:

Unclean hands is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint.

"The news media uses the words "steal" and "theft" to make it seem more exciting."

Not to mention the melodramatic term "piracy."
The news media has been using those "theft" words because that's how the RIAA has been claiming in their press releases (to help sway public and political opinion disproportionately in their favor).
This is another blot on the RIAA's record.
Already there is breach of contract.
And there are other issues besides those.
Tactically, it's almost too late to go to court concerning various aspects of their behavior (or at least to have held the prospect of it over their heads) — to charge them with impropriety, prejudicial labeling, whatever legal terms I don't know that could apply.
If such an approach held promise (from the standpoint of how sometimes the best defense is a well-coordinated offense), they should have done that type of thing a long time ago.
And I still don't understand why various artists that haven't been properly paid royalties or other compensation didn't join together in a class action lawsuit which would at least bring those issues to the attention of the public as well as to the politicians.
If they didn't win, it might be because of all the high-powered legal counsel resources at the RIAA's disposal. . .
George, are you reading this thread?
You would have more things to add, I'm sure.

Tnx mroop.

"Unclean hands is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint."

I read that definition also.

So you're saying if the plaintiff claims their copyright is being infringed then even if that copyright was obtained through unethical means those unethical means are extraneous to the subject of the complaint?

Ok so after reading all of this I find that mroop may know his shit but is an asshole lol Can't you just respond to other people's comments without the personal attacks? Pathetic lol...

"Personally, I have a hard time believing that what Media Sentry is doing is some kind of illegal invasion.

I took a quick look at 18 USC 1030 and it seems to prohibit accessing a computer without "authorization". If you are using a file sharing program with information in your shared folder then I would say you are authorizing other users of the program to access your shared folder. Otherwise all use of file sharing program would be illegal. "

Just curious, again ....
How many of you out there, run Peer Guardian, have absolutely NO P2P clients installed on their machine ( Yes, I have a 100% clean machine to use ), and still get hits from Mediasentry ?

My clean machines gets constant hits.
So do clients of mine who have never used P2P software in other locations.

"If you are using a file sharing program with information in your shared folder then I would say you are authorizing other users of the program to access your shared folder. "

Can't disagree.

And yet,
What is Mediasentry doing scanning other machines. There isn't any implied authorization there.

"What is Mediasentry doing scanning other machines. There isn't any implied authorization there."

I think this topic in itself deserves a separate news thread! I have never run p2p software at all on my current computer. If MediaSentry is scanning you, it might be scanning me. How? Why? What can their algorithm be attempting to do? And is it legal?

Does PeerGuardian block these scans? Since I'm not downloading with p2p I haven't paid much attention to what this program does.

Curiouser and curiouser.

"On the one hand, she is claiming it wasn't her. On the other hand, she is claiming her computer was illegally invaded. These two claims are obviously inconsistent."

Here's how this works out in my head (a scary place -- trust me.) Assuming she doesn't have Kazaa installed and never has, she can rightfully claim that it wasn't her. However, she is claiming her computer was illegally invaded based only on statements made by the Settlement Support Center. See the excerpt below.

From the article:
"10. When Ms. Andersen contacted Settlement Support Center, she was advised that her personal home computer had been secretly entered by the record companies’ agents, MediaSentry."

Of course, I would think this would only be valid if they did, in fact, freely admit this to her and she has evidence that they admitted it. Even if they had mistakenly been entering someone else's computer, couldn't she make this claim based on the fact that they told her that, "her personal home computer had been secretly entered by the record companies’ agents, MediaSentry." Wouldn't their admission be enough to justify including it in their claim? Again, assuming she didn't have Kazaa or any other file-sharing program installed, there would be no implied authorization for "entry".

Regarding EULAs, let's say one of these companies decided that it DID want to put it's hand in the hornet's nest. Instead of suing for damages, couldn't they demand that the RIAA and it's agents cease any and all access to their networks due to multiple and continual violations of their EULA? This, of course, would have to be done in an independent case not related to the one above.

"Ok so after reading all of this I find that mroop may know his shit but is an asshole lol Can't you just respond to other people's comments without the personal attacks?"

Yes I can. But Dreddsnik is a liar who likes to claim that I said things that I never said. This is not the first time. That's why I like to call him a douchebag. Because he is a douchebag. That is all.

"So you're saying if the plaintiff claims their copyright is being infringed then even if that copyright was obtained through unethical means those unethical means are extraneous to the subject of the complaint?"

I would say that is extraneous.

If it's illegal to obtain access if you have no authorization to some corporations computers shouldn't the same for gaining access to home computers.

MediaSentry to me is like some asswipe joebob who puts together a business breaks down the doors to enter peoples homes looking for drug dealers untill they get the right one.

Ok, gotcha. Thanks for the clarification.

"Ok so after reading all of this I find that mroop may know his shit but is an asshole lol Can't you just respond to other people's comments without the personal attacks?"

And let me add that Dreddsnik likes to claim that I work for the RIAA on a regular basis. Not only is he a lying jerkoff, he is a delusional lying jerkoff.

"Regarding EULAs, let's say one of these companies decided that it DID want to put it's hand in the hornet's nest. Instead of suing for damages, couldn't they demand that the RIAA and it's agents cease any and all access to their networks due to multiple and continual violations of their EULA?"

I suppose they could. Maybe a cease and desist order or something like that. But remember that most of these companies want to do business with the RIAA.

"From the article:
"10. When Ms. Andersen contacted Settlement Support Center, she was advised that her personal home computer had been secretly entered by the record companies’ agents, MediaSentry.""

Well, let me say I highly doubt that the SSC said, "We secretly entered you computer." lol The whole complaint is highly inflammatory language intended to stir the emotions. Like I said above, Media Sentry is probably just checking share folders. And I would say that would not constitute unauthorized entry because the person with the share folder open is inviting you in. I believe they use bots that just check for a share folder and the contents. These are not individuals who are rooting around in other areas of your computer as far as I know.

"But remember that most of these companies want to do business with the RIAA."

They kind of have a funny way of showing it, don't they?

I guess they might as well throw out the EULA entirely then. Can't it usually be argued that they can't enforce an EULA unless they ALWAYS enforce it? In other words, they can't pick and choose or play favorites. It wouldn't necessarily be fool-proof, but I believe it could at least be argued.

"Does PeerGuardian block these scans? Since I'm not downloading with p2p I haven't paid much attention to what this program does."

Yes.
Don't take my word for it ( I am such a liar ya know ). Run peer guardian for a while. You may notice Sony, Fujitsu, and a coupla other names blocked as well.

"Yes I can. But Dreddsnik is a liar who likes to claim that I said things that I never said. This is not the first time. That's why I like to call him a douchebag. Because he is a douchebag. That is all. "

And Mroop likes to lick monkey balls.
( he's been doing THAT along time )
Thats why I like to call him "Ballicker"
That is all.

"Well, let me say I highly doubt that the SSC said, "We secretly entered you computer." lol The whole complaint is highly inflammatory language intended to stir the emotions."

Kinda like the RIAA uses in MAinstream Media.
Kinda like your posts, Ballicker.

What I'd like to know is if she didn't have any P2P programs on her computer and they gained access how are they checking shared folders?

For the most part I would'nt put it pass any of those companys that scan peoples computers for shared folders to gain access to other areas of peoples computers.

Ok so there is history I don't know about between mroop & dreddsnik Well it's entertaining to read at least (and I even learned a few things)...work is boring! Keep it up! lol

"I guess they might as well throw out the EULA entirely then."

Companies like Grokster just use the eula to cover their asses. They want you to share copyrighted files. That's how they increase their user base and charge more for advertising and make money. The eula is a crock.

"Kinda like your posts, Ballicker."

Not only is Dreddsnik a lying delusional idiot. He also hates gay people. I say live and let live. I'm not a gay hater like Dreddsnik. I guess he also hates black people and anyone else not like him. Dreddsnik the lying racist homophobe. I almost feel sorry him. Almost. : )

Mroop :
"slluuuurp "

Don't forget to pick the hair out yer teeth.

mroop --
"So you're saying if the plaintiff claims their copyright is being infringed then even if that copyright was obtained through unethical means those unethical means are extraneous to the subject of the complaint?"

I would say that is extraneous."

Really?? How is that possible?? Here is the definition of unclean hands:

"unclean hands
n. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant."

If you obtained a copyright through unethical or illegal means, then sought legal action to defend such copyright, the subject of the lawsuit IS the copyrighted work. It cannot be "extraneous to the subject of the complaint". IT IS THE SUBJECT OF THE COMPLAINT!!!

Since proving that the copyright was illegally or unethically obtained must be proved by the defendent, "those unethical means" by which the copyright was obtained will have to be pertinent to the matter under consideration.

"I think this topic in itself deserves a separate news thread! "

Only with much more corroboration.
Thats why I posed it as a question.
Is it isolated to my ISP ?
Could past actions have "flagged" my IP.

It's an open question to all readers that have acces to peer guardian, or any other utility that checks and blocks acces from a blocklist.
It would be very interesting to hear from any reader that does not have, or ever had any P2P app, to run peer guardian and let us know if they get "scanned in similar fashion.

mroop--

"I guess he also hates black people and anyone else not like him."

Anyone that has the balls to say something like this about anyone after admitting that they like Hitler ought to have them cut off.

oops,
I spelled "access" wrong.
Forget my previous post.
Misspelling a word makes it valueless

"Anyone that has the balls to say something like this about anyone after admitting that they like Hitler ought to have them cut off. "

They need to get them out of his mouth first.

Hey look! It's the two biggest idiots who aren't awehr having a conversation! This is way funnier than anything you're gonna find on Comedy Central.

INAL,
That's exactly what I thought.
But if I read mroop correctly, HOW the label acquired the copyright isn't germane to the offense of copyright infringement. IANAL obviously.

"Anyone that has the balls to say something like this about anyone after admitting that they like Hitler ought to have them cut off."

And btw, my grandfather almost ended up in a concentration camp and escaped out of Poland. So don't tell me that I said I like Hitler. You fucking fool.

"HOW the label acquired the copyright isn't germane to the offense of copyright infringement. "

If they don't actually own the copyright then that would be another story. Let me also add that these lawsuits are based upon current songs where the copyright was obtained with lawyers representing the label and the artist. So I doubt this is the basis of the unclean hands defense.

"Hey look! It's the two biggest idiots who aren't awehr having a conversation! This is way funnier than anything you're gonna find on Comedy Central."

Hey look,
It's Mroop once again adding insight and careful thought to a debate, while licking his own balls at the same time.

My grandfather was Marco polo.

I can claim anything I want to, just like you.

Godwin's law, invoked.
Thread = dead

Hey, not so fast!
Some of us were waiting for a response to the following posting:

mroop --
"So you're saying if the plaintiff claims their copyright is being infringed, then even if that copyright was obtained through unethical means those unethical means are extraneous to the subject of the complaint?"

I would say that is extraneous."

Really?? How is that possible?? Here is the definition of unclean hands:

"unclean hands"
n. a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant."

"If you obtained a copyright through unethical or illegal means, then sought legal action to defend such copyright, the subject of the lawsuit IS the copyrighted work. It cannot be "extraneous to the subject of the complaint". IT IS THE SUBJECT OF THE COMPLAINT!!!"

"Since proving that the copyright was illegally or unethically obtained must be proved by the defendent, "those unethical means" by which the copyright was obtained will have to be pertinent to the matter under consideration."

Nah, let the thread die. They were really starting to gross me out anyway.

" Hey, not so fast!
Some of us were waiting for a response to the following posting: "

You won't get one Grumpy.
All he will do is dance around those issues.

"Nah, let the thread die. They were really starting to gross me out anyway."

My apologies to everyone ( EXCEPT Mroop ) for my contribution to the "Gross out" match.

I am tired of trying to play nice with Mroop, while he insists on playing the ass. If you follow this thread, you will see, not surprisingly, that the venom started with Mroop. I am sick and tired of it. So when he starts in on me ( ALWAYS Mroop that starts ) I will press the evil home. He stays nice and on topic, so will I. It has nothing to do with agree or disagree. He wants to be a bastard, I can be just a big a bastard.
The problem is he CAN"T DO IT.
He can't maintain a reasonable discussion without resorting to namecalling.

mroop :
"If they don't actually own the copyright then that would be another story."

Of course, but since in the complaint they affirm under penalty of perjury that they do own or hold the copyright that is not the issue. Let's assume they do.

The issue I'm trying to raise is whether a judge would admit evidence as to the ethics of the recording contract itself if the defense presented it under the unclean hands doctrine. The lack of ethics in a typical recording contract is voluminous and well documented and I believe a jury of joe 12packs would be shocked to hear what the recording industry has been getting away with for so many years and how they are royally screwing the artists.

I understand the distinction you make between unclean hands in the prosecution of the copyright suit and unclean hands in the acquiring of the copyright and that may well be the crux of the biscuit, However

Your statement "I would say that is extraneous." tells me it is your opinion and not a fact of law, however we value your opinion. I've been googling for an unclean hands defense in a copyright case but have been unable to find one. Perhaps your ability to research caselaw could help here.

I only harp on this because if a successful unclean hands defense (and I believe the RIAA's hands are about as clean as a baboon's after 5 gallons of chili and a keg of beer) can be mounted then maybe all these stupid lawsuits will go away.

"You won't get one Grumpy.
All he will do is dance around those issues."

Shut your stupid yap already, assclown.

"Your statement "I would say that is extraneous." tells me it is your opinion and not a fact of law, however we value your opinion."

Yes, it's my opinion. It's extraneous because it has nothing to do with the lawsuit. Unclean hands does not allow the defendant to point out bad behavior that has nothing to do with the suit. Look at the example here:

Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

http://dictionary.law.com/default2.asp?selected=2182&bold=%7C%7C%7C%7C

The unclean hands arises from actions taken by Hank that occured during the transaction that is at issue in the lawsuit. Grace can't point to something that Hank did to a 3rd party at some other time. That would make no sense. Think of how this would apply in reality. Every time one person sues another, the defendant hires a PI and tries to bring in any bad activity done by the plaintiff. That is not how unclean hands works. It would be unworkable.

"Perhaps your ability to research caselaw could help here."

I'm not going to do research because I already know the answer. If you want to pay me say 100 bucks an hour, I'd be happy to provide you a memorandum on the subject. : )

Ok, now that the Daily Show is over (it was a funny one) , mroop am I totally offbase with this unclean hands thing or no?

"The issue I'm trying to raise is whether a judge would admit evidence as to the ethics of the recording contract itself if the defense presented it under the unclean hands doctrine."

So applying your example, the ethics of a recording contract have nothing to do with a suit by a copright holder against an infringer. Unclean hands would probably have to be if the copyright holder did something wrong in the way he went about identifying the infringer.

"Ok, now that the Daily Show is over (it was a funny one) , mroop am I totally offbase with this unclean hands thing or no?"

I would say so - see above. I'm watching Ramzi Yousef on the History Channel. : )

"I've been googling for an unclean hands defense in a copyright case but have been unable to find one."

And btw, if you want to get a better idea of how unclean hands work, just google for examples. Don't worry about examples in copyright cases. The principle is the same for all cases and after you read some examples you will get an idea of how it is applied. Happy googling. : )

Judging from all the unclean cases I've read about you seem to be right. No secondary
or a priori or remotely tangential stuff allowed.

"that occured during the transaction that is at issue in the lawsuit"

That clears up my questions.

"Unclean hands would probably have to be if the copyright holder did something wrong in the way he went about identifying the infringer."

Plenty of opportunity there!

Thanks for elucidating the precision of the language of law. I assume you know how INAL and I could come to the conclusions we did. We were using colloquial definitions
of words which actually have quite precise definitions in their own field. Similiar to the discussions I have with lay people who claim "evolution is just a theory". Well common usage of the word theory and the scientific definition are vastly different but that's not a can of worms I care to open here.

I appreciate the time you've taken to clear that up for me (us) pro bono.

"Unclean hands would probably have to be if the copyright holder did something wrong in the way he went about identifying the infringer."

"Plenty of opportunity there!"

Yes, that's why I'm not inclined to give up hope for the unclean hands concept to be successfully applied.

To begin with, breach of contract is an initial wrong action taken to begin identifying infringers on a file sharing network.

It seems to me that the crux of Ms. Anderson's defense is...

"The record company plaintiffs employed MediaSentry as their agent to bypass Ms. Andersen’s computer security systems and break into her personal computer to secretly spy and steal or remove private information. MediaSentry did not have her permission to inspect, copy, or remove her private computer files. It gained access secretly and illegally."

If this is true, it seems to me that the "unclean hands" defense should be applicable. However, it might simply be that MediaSentry recorded the shared file list of the person using Kazaa on that computer, in which case the above description is a inflammatory and misleading.

It seems highly unlikely that Ms. Anderson, a single 42-year-old disabled mother, was downloading rap music at 4:24 AM, as alleged. The question really is who had access to her computer at that time? Did Ms. Anderson give that person permission to use her computer? The most likely person is her 8-year-old daughter. I suppose an 8-year-old might be able to install Kazaa and download rap music, even if she didn't have permission to use the computer. Either that, or MediaSentry is completely wrong. If it's Ms. Anderson's word against MediaSentry, then I suppose that the evidence will have to settle it. If MediaSentry produces a list of files they say were on Ms. Anderson's computer, along with and IP address they claim belonged to her computer, is that sufficient evidence? Are we supposed to trust their software? In cases such as this, isn't it the "preponderance of the evidence"? It seems to me it comes down to whether the judge (or jury) believes Ms. Anderson, or believes the RIAA's evidence.

"The question really is who had access to her computer at that time?"

Maybe the question is who was using her IP address at that time. That's really all Mediasentry has to go on.

IFeelFree - thoughtful line of reasoning.

BTW, I had an afterthought about what I had written earlier.
I'm going to submit a potential line of argument to see how critically it gets critiqued:

Possible overture by the defense:
Your honor, public statements by the plaintiffs have consistently referred to infringment of copyright as theft. If the plaintiffs consider infringement to be theft, then it follows that, as far as they are concerned, crimes have been committed. For clarification purposes, would it not please the court for them to be prevailed upon to explain their position on this issue?

Likely response from counsel for the plaintiffs:
Your honor, with all due respect, I fail to see how this matter impacts the aspects of the case at hand here.

Defense:
But, your honor . . .

Judge (interrupting): Counselor, (etc., etc.)

My comment: I'm leaving this unfinished.
I'd like to know if this is the plausible sequence that would occur, and, if so, how the defense could have made it more pertinent in introducing the RIAA's intentional misrepresentation of the offense of infringement as "theft."

Courtroom scenarios fascinate me.
Here's another possible argument:

Your honor, agents acting on behalf of the RIAA were guilty of breach of contract each time they inappropriately used the services of a file sharing provider to pursue evidence for copyright infringement.
The eula is a contractual agreement which agents for the RIAA nominally assented to, but evidentally had no intention of honoring.
For this and other reasons, it is our intent to show that these agents have failed to act in good faith. In disregard for their contractual agreements, they incurred a certain degree of dishonor on themselves, thus tainting their process of investigations of infringement.

"Judging from all the unclean cases I've read about you seem to be right. No secondary
or a priori or remotely tangential stuff allowed."

I'm happy to see you've done some reading on your own to find out for yourself. People like Dreddsnik would rather attack me and call me an RIAA agent when I give an answer they don't like. You took the time to learn something and that is commendable.

"We were using colloquial definitions
of words which actually have quite precise definitions in their own field."

Exactly. In the law they are known as "terms of art".

"Similiar to the discussions I have with lay people who claim "evolution is just a theory"."

Lol to that. : )

"I appreciate the time you've taken to clear that up for me (us) pro bono."

No problem. Glad to be of assistance.

"Likely response from counsel for the plaintiffs:
Your honor, with all due respect, I fail to see how this matter impacts the aspects of the case at hand here."

Yes. What is the relevance? I fail to see where you are going and what is your purpose? How does what the RIAA said have anything to do with whether or not the defendant has committed copyright infringement? Answer: Nothing.

Mroop, thanks.
I think that eliminates using the "theft" angle against them.

Okay, how about my breach-of-contract line of argument -- broaching the unclean hands aspect (posting of 1:52 a.m.)?

"Okay, how about my breach-of-contract line of argument -- broaching the unclean hands aspect (posting of 1:52 a.m.)?"

I don't know. The breach is between the RIAA and the p2p, not the RIAA and the defendant. But maybe it's something. You never know.

mroop:
On behalf of the many readers (including myself) having gained good information from your input in this thread, it's fair to say thank you.

No prob. But I forgot about what ShadowMom said above:

"it just pierced my thick skull why no one would use the eula defense...because they also violated it. The ones I've read prohibit the user from uploading/downloading copyrighted material."

So it might not be such a good idea for the defendant to raise this issue! lol

And you've posted solid opinions on this thread going back to the wee hours of October 3, two days ago.

I'll repeat something I've said before: I'm glad we have mroop as well as RaidHHI participating in our forums.

ShadowMom said:
"It just pierced my thick skull why no one would use the eula defense...because they also violated it. The ones I've read prohibit the user from uploading/downloading copyrighted material."

mroop said:
"So it might not be such a good idea for the defendant to raise this issue! lol"

Both parties may be guilty of breach of contract, but the behavior of the defendant can be viewed separately from that of the plaintiffs, the latter of which acted inappropriately in their quest to investigate potential cases of infringement.

Granted, breach of contract would be a stain on the defendant, though obviously a minor one compared to infringement. The breach offense would appear to more adversely affect the plaintiffs in the sense of it tainting their investigations to some degree.

Okay, umm, next time you guys want to quote me, you have my permission to delete the "thick skull" part, okay? Thanks.

"Nah, let the thread die. They were really starting to gross me out anyway."

Fuck your mom in the ass balllicker

"I'm happy to see you've done some reading on your own to find out for yourself. People like Dreddsnik would rather attack me and call me an RIAA agent"

No,
I'd rather call you a nazi ballicker than anything else.
Rancid pile of dog crap works too.

""Nah, let the thread die. They were really starting to gross me out anyway."

Fuck your mom in the ass balllicker

Sorry attacked the wrong poster.
Every unneccessary insult from mrrop gets one back.

Was supposed to be a response to the intelligent phrase ..

"Shut your stupid yap already, assclown. "

Mroop the "baker" just can't stop.

Dreddsnick -- Give it a rest. mroop's harmless and he's pretty right on with everything he posted, as far as legal analysis.

The RIAA lawsuits do not say theft, they say copyright infringement. It doesn't matter if they take out a full page in every major newspaper calling it theft. It doesn't matter if they call every p2p user in the country and call it theft. The only thing that matters is the language of the motion itself.

Unclean hands -- Unless the defendant drags every artist whose copyrights were allegedly infringed upon into court to testify that the record label obtained those copyrights through illegal or immoral means, they will be hard-pressed to prove that in a civil court.

Besides, that would mean that the defendant is backed into the corner, admitting that they had the files in question and is trying only to invalidate the claim of ownership.

I think that to use the unclean hands doctrine successfully in one of these cases, the approach would have to be to show that the RIAA's entire information-gathering or shotgun lawsuits are of questionable legal merit.

I still believe the only viable defense is "It must have been someone else."

Thank you, George, this one was sinking fast...

"Okay, umm, next time you guys want to quote me, you have my permission to delete the "thick skull" part, okay?"

Well, I did cut off the beginning where you said "I'm such a dunce". Hee hee.

"mroop's harmless and he's pretty right on with everything he posted, as far as legal analysis."

Now Dreddsnik is going to start attacking you for being an RIAA agent. : )

Thank you, mroop. I do appreciate it.

And btw Dreddsnik, must you be so crude? You are offending my delicate sensibilities.

Not to mention mine.

"Dreddsnick -- Give it a rest. mroop's harmless and he's pretty right on with everything he posted, as far as legal analysis."

That may be true.
Now start from the top of this thread,
and see where it starts .. ..

""SHOULD have been able to "cover their butts ".

It didn't."

It didn't cover their butts because of all the other crap they pulled. Read the Grokster case and stop being such an ignorant dumbass. Thanks in advance. "

Now,
Look in a couple of the other threads,
and see, for yourself, where it starts.

Right wrong or indifferent, it is Mroop that inevitably starts the namecalling trail of hate.

Continue to read this thread a bit more.
You will see it is, again, Mroop, that pushes to escalate. Right wrong or indifferent.
I have said, many times, he makes good points. In this thread , I have had partial agreement with some of them.
But once again, he can't leave the personal shit out.
So .. I ... Won't .. either.

Not anymore.

So, while you ask ME to give it a rest,
and stay on topic , ask the same of the one who ALWAYS starts it.

Mroop, the nazi loving pile of ballicking dogcrap, who touches himself while reading his lawbooks.

"Now Dreddsnik is going to start attacking you for being an RIAA agent. : ) "

See George,
he must always throuw in that personal jab.

"And btw Dreddsnik, must you be so crude? You are offending my delicate sensibilities."

You have no sensibilities, scruples, or anything else except Nazi ballicking arrogance. I won't go away, and I won't "back off" or "give it a rest" you
fece sniffing assclown.

"Not to mention mine."

As I said earlier shadowmom,
My apologies to all EXCEPT Mroop.
As long as he can keep the personal stuff out, I can, and have.

It's always Mroop that seems to feel the need to go there. I am no longer backing down from his instigated namecall fests.

You had no problem calling me an RIAA agent and an RIAA shill and claiming I was paid by the RIAA. Now that the shoe is on the other foot you don't like it so much.

Poor wittle Dweddsnik is upset and crying to his mommy. Awww. Boo hoo. Sniffle. Boo hoo. lol

Nope,
Noones crying to anyone. Anus oiler.
just not sitting quietly while you sniff
Ass gas. Wanna sit around and trade names oven boy ? I will. As long as you dish it out, I will dish it back.
Every time YOU start it, I will continue it.

Go back to ballicking.

"You had no problem calling me an RIAA agent and an RIAA shill and claiming I was paid by the RIAA. Now that the shoe is on the other foot you don't like it so much. "

mmm huh ?

Babble much, turd munch

*sigh*

But, I gotta admit, once again there is actually some good stuff, (which I love you all for,) in-between all the usual bickering.

"I think that to use the unclean hands doctrine successfully in one of these cases, the approach would have to be to show that the RIAA's entire information-gathering or shotgun lawsuits are of questionable legal merit."

Indeed, one of my main points in this thread has been to focus on the RIAA's impropriety in regard to their conduct during their hunt for infringers. Agents acting on behalf of the RIAA veritably cause a breach of contract offense every time they pursue information-gathering techniques against clients of file sharing networks, thus tainting those investigations to some degree or another.
And, like you said, shotgun Jane Doe or John Doe subpoenas don't look good either. And there's even one more lack of good faith issue that could be explored.
NONETHELESS, no matter how bad a negative shadow there may to be cast on the RIAA in such regards, I fully concur with you and mroop that there are precious few methods of sustainable defenses per se against a valid charge of copyright infringement. Barring having the litigation dismissed on grounds of a technicality or perhaps a pattern of impropriety on the part of the plaintiffs, a guilty defendant can expect to eat crow (unless he or she can actually demonstrate they didn't infringe and were also unaware of anyone else using their computer for such).
Obviously, that makes it an additional justification for us to stand tall and boycott RIAA material; i.e., obtaining their stuff in an infringing manner is a statutory offense, and throw in our usual website reasons for not getting their material anyway.

Insofar as the other topic George mentioned — about the misrepresenting of infringement as "theft" — his conclusion is the consensus of mroop and me that came about last night (i.e., my post of 2:09 a.m. this morning) where I indicated my agreement with mroop about this issue.

Hmm...

"As part of this campaign, these record companies retained MediaSentry to invade private home computers and collect personal information. Based on private information allegedly extracted from these personal home computers, the record companies have reportedly filed lawsuits against more than 13,500 anonymous “John Does.” "

This is a fabrication on her part. When her computer was online, sharing files across the network she obtained music from, her computer was volunteering what files it had available to ANY computer that asked. She has no right to expect any privacy in that regard. If sharing is enabled, it's going to share with anybody who wants to leech.

There was no trespass, the computer was sending out a beacon saying "I am online, sharing this data: come leech me."

I would have hoped her lawyer was more intelligent then this. Or perhaps he is, and he's just trying to pull a fast one on a technologically disabled judge.

Her computer was told by her to share data that it downloaded. It advertised it's intentions on the network. If she wanted any sort of privacy, she should have disabled sharing.

I hope the prosecution burns her a new one.

"I still believe the only viable defense is "It must have been someone else.""

I'm not even sure how much longer that defense is going to work.