Legal pit bull sends the RIAA running with their collective tails between their legs

Ft. Myers, FL - The odds were against the RIAA from the beginning. It was bound to happen. Now it has. The RIAA sued someone with enough money to have a team of legal pit bulls on retainer.

Enjoy the following clippings from the letter that brought the RIAA to it's knees:

Your client take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients' claim used their AOL account to download pornographic-lyric gangsta raptracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, "You've got to be kidding."The extensive press that has been generated over computer security (and the insecurity of Windows XP and its predecessors) underscores the complete absence of facts on which probable cause to sue my clients could be established and your clients' willingness (even insistence)that others be implicated in Big Music's speculative, "drift net"litigation tactics. Sorry: Mr. Merchant cannot and will not expose himself to still more litigation by speculating.
Recording Industry vs. The People: RIAA Backs Down After Receiving Letter from Defendant's Lawyer Threatening Malicious Prosecution; Voluntarily Dismisses Case

...and...

Your reminder about preservation of evidence, of course, cuts both ways. Since my client's hard drive completely exculpates him, functionally compels dismissal, and opens the door to substantial recovery, he is doing everything in his power to preserve and protect his evidence. In our part of the world, that is a mid-six to low seven figure piece of computer gear.

Procedurally, we need to address how best to move the case to the Fresno Branch so you can enjoy our new Courthouse and avoid Judge Levi's wrath for filing in the wrong court. (Senior Judge Bob Coyle was responsible for building both our new facility and the District Court building in Sacramento; and, although neither building is as grand as Judge Manny Real's showpiece in Santa Ana, the Fresno Court is not only nicer than Sacramento but also one of the top three court facilities ever I've enjoyed practicing in.) Handling the issue by stipulation and order would probably be the most simple way to move the file. We do that routinely in PACA litigation although I am open to suggestions if you prefer to handle it differently

Once the case is moved to the Fresno Branch, your clients should consider cleaning up their complaint. The FRCP and collateral estoppel from other RIAA law and motion matters require much greater specificity in pleading than your clients provided in the complaint I reviewed. Dates of the alleged downloads, which plaintiff (or affiliate) holds which copyright to which track, etc. must be specifically pleaded and proven. You are as familiar as I am with the results in other cases where RIAA's general allegations have been challenged. Let's get over that hurdle without unnecessary law and motion practice.
Recording Industry vs. The People: RIAA Backs Down After Receiving Letter from Defendant's Lawyer Threatening Malicious Prosecution; Voluntarily Dismisses Case

I hope that was as good for you as it was for me. Merl Ledford III is my new hero.

The entire brilliantly written letter responding to an RIAA law suit is on the page linked above. I thoroughly enjoyed reading that letter and highly recommend it. If nothing the shear joy of picturing the receiving lawyers face and knowing it made the RIAA fold within hours of receiving the letter.

I particularly liked the part about sending the airplane to pick up the RIAA experts to expedite the examination of his client's hard drive.

This was not a complete surrender on the RIAA's part. The voluntary dismissal filing is without prejudice. That means the RIAA can come back again anytime within the statute of limitations. Too bad Mr. Ledford said he would agree to a confidentiality clause on the settlement.

A tip of the hat to Ray Beckman and The Recording Industry vs. The People Blog for keeping the rest of the world up to date on these cases.

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Litigation: A machine which you go into as a pig and come out of as a sausage.
- Ambrose Bierce

Sarasota, FL - The case of Julie Amero has been near and dear to my heart since USA Today Columnist Andrew Kantor brought it to my attention. There are very few things that will get me into fighting mode faster then to see someone being bullied. That is especially true when that person is bullied by a bunch of ignorant government flunkies that are too stupid and/or ignorant to see how badly they are screwing up.

To give you an idea exactly how badly the local authorities screwed up, read this clipping from an article on Alternet:

Horner's analysis of Amero's hard drive cast doubt on Lounsbury's conclusions. Horner found that the computer had been infected with malware before she arrived.

"She was set up days or weeks before she ever sat down," Horner said.

Here are just a few of the red flags Horner discovered in course of his laborious forensic reconstruction: Anti-virus software triggered security alerts as soon as he started copying the hard disk for testing. The computer's Norton activity log showed that by the time Amero came to Kelly, her computer was already infected with spyware from notorious websites including marketscore.com and new.net.

One piece of spyware had been already been tracking the computer for about a month.

Horner also discovered that someone, presumably the computer's regular user, had been accessing eHarmony.com before Amero's visit. As he noted, dating sites are notorious for spreading porn-related adware.

Another program called Pasco showed that malware had automatically redirected Amero's browser. Horner stressed that this particular form of hijacking is invisible to ComputerCOP Pro.

On Oct. 19, someone did an online job search shortly after 8:00 a.m., activating several different malware apps. At approximately 8:15 a.m., someone accessed www.hair-styles.org, Horner suspects student involvement, in part because the next visit was to Crayola's homepage. Over the next several minutes, still more malware came alive, most likely triggered by the hair site.

The user kept surfing, and by this point, "crap was pouring into the computer at the speed of electricity," Horner said. The real point of no return was when the computer received a huge porn-filled Java file. From that point on, the machine was locked in an endless porn loop.

Note that Amero's class started around 9 a.m. Neither the prosecutor nor detective Lounsbury was able to tell AlterNet whether the room had been locked before class, or exactly what time Amero sat down at her desk.

At trial, it emerged that the school IT department offered no protection against obscene content or invasive software. The Kelly Middle School's firewall license had expired, leaving the whole system unguarded. To make matters worse, Amero was working on a very old Gateway PC running Windows 98, an extremely vulnerable setup.

"Anyone could send anything they wanted to any computer on the site," Horner said.

In the course of his investigation, Horner became convinced of Amero's innocence. After she was convicted, he sent a letter to her attorney offering his services pro bono for her upcoming appeal.

"This whole trial was so unfair," Horner said. "When Julie was convicted, I went home that night. I was eating dinner, and I started crying. I just cried my eyes out. This was a total travesty of justice."
Alternet: Questionable Conviction of Connecticut Teacher in Pop-up Porn Case

Rick Green's column in today's Hartford Courant gives a an accounting of what brought Amero to this point in her life, a convicted felon and marked as a sex offender awaiting sentencing this Thursday. But there is a dim light of hope. It seems the mountain of raw facts contradicting the state's case and incredible shit-storm of out right ridicule for the all parties involved in prosecuting her has got their attention.

But Kane, Smith and others connected to the case have been deluged - and widely ridiculed - by computer security experts who say critical evidence was not considered and officials are now searching for ways to avoid Thursday's sentencing. The state's attorney's office in Norwich is reconsidering its aggressive prosecution of Amero, sources close to the case say.

Smith, whose persuasive arguments convinced the jury of Amero's guilt, would say only that before next Thursday, things "could very well change."
The Hartford Courant, Rick Greens Column: Enduring Storm Of `Pop-Up' Madness

The nice thing about the internet is the power it gives back to the people.

More Links:
Sunbelt Blog: Is this a miscarriage of justice?
Sunbelt Blog: Update on the Julie Amero case
Sunbelt Blog: Another Explosion in Connecticut

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Never pray for justice, because you might get some.
- Margaret Atwood

Some colleges thwart the RIAA's attacks on their students

Ft. Myers, FL - This is a follow up to my "The RIAA's war against their customers goes to College" post. From that post you know that Recording Industry Association of America took their pursuit of music pirates to various colleges around the country by firing off a blizzard of "settlement letters" (also read "extortion letters") to college IT departments around the country. Most of the colleges rolled over and played dead, giving the RIAA what they wanted and forwarding the letters to the offending students.

However the University of Wisconsin flat out rejected the RIAA's demands.

The University of Wisconsin went against the national trends Friday by warning students about its policy regarding illegal file sharing but refusing to forward settlement letters to violators from the Recording Industry Association of America.

According to Brian Rust, communications manager for the UW Division of Information Technology, the university sent an e-mail reminding students of the “appropriate use guidelines” for downloading to protect them from what could amount to thousands of dollars in out-of-court settlements.

“These settlement letters are an attempt to short circuit the legal process to rely on universities to be their legal agent,” Rust said. “It basically says, you are illegally downloading and/or sharing information; and before we take legal action, you can remedy this situation and pay for the music or movies that you’ve downloaded.”
The Badger Hearld: UW warns students

Way to go UW!

Two other colleges, the University of Nebraska and the University of North Dakota both have their IP logging systems set up to hold only 30 days or so worth of data. After that it is forever purged.

To say the RIAA minions were not pleased with this turn of developments would be putting it mildly.

RIAA spokeswoman Jenni Engebretsen said the NU problem is "unusual and inconsistent" with what the recording industry had heard from other schools since it announced last month that it would file music piracy lawsuits against 400 students at 13 U.S. universities.

She criticized the university for failing to keep computer records that would have made it easy to track down the UNL offenders.

"One would think universities would understand the need to retain these records," she said.
The Omaha-World Herald: UNL proves safe haven for music pirates

Oh I understand why the RIAA thinks they should hold the records longer then 30 days. However, I can think of a dozen reasons to shorten that term to around ten days based on the RIAA's actions over the last few years. They can't sue the wrong person if you don't give them any names at all.

It is interesting to me that in the same article it is mentioned, almost as an after thought, that the RIAA is pressuring the University of Nebraska into buying software that can stop peer to peer pirating of music. The price tag for that software is around $100 thousand. I wonder if it's the same software offered by Palisade that RIAA expert witness Dr. Jacobson helped develop?

Looks like the message is clear. You either buy the anti-piracy software or we will come after your students. I wonder... Of the schools are under attack, how many of them purchased the software the RIAA is pushing?

More Links

Bismark Tribune story on the RIAA's frustration at the University of North Dakota
Transcript of a deposition of Dr. Jacobson in an RIAA case The questions about his connection to Palisade begin on page six.

A tip of the hat to The Recording Industry vs. The People Blog for keeping us posted on all the legal wrangling.

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The virtue of justice consists in moderation, as regulated by wisdom.
- Aristotle

What is wrong with the US news media...

Ft. Myers, FL - Amanda Congdon is a video blogger who sometimes appears the ABC News website. The other day she wrote these words in her blog:

And under the “blogger” title, which is what I am, hello? I am not subject to the “rules” traditional journalists have to follow.

Isn’t that what new media is all about? Breaking the rules? Setting our own?
Amanda Congdon's Blog: I was “Caught”?!? haha

Unfortunately for her, that quote minus the first sentence where she defines herself a "blogger" created quite a storm throughout the news industry trade publications. She even caught some flack in the main stream media. They are all pointing fingers at Amanda and her work as talent in an infomercial for DuPont and her connection with ABC News.

Okay, I would not be comfortable with her reporting on a story about, involving or even remotely related to DuPont after she was paid to do infomercials for them. I'll give the angry horde that much.

But I believe that Amanda summed up in four sentences the root of everything wrong with the US journalistic machine. Let me recap those four sentences:

• I am not subject to the “rules” traditional journalists have to follow.


• Isn’t that what new media is all about?


• Breaking the rules?


• Setting our own?

Amanda unknowingly described about two thirds of the "traditional" journalists entering the trade from today's journalism schools. They come out of those schools uttering new catch phrases like "interpretive journalism" and "journalist advocate." Those are phrases that until now never had a place in any legitimate news room.

Sitting in this truck I've witnessed producers and reporters slant their stories against conservatives for their anti-abortion stance, against the lawful use of a firearm to stop a killer and in favor of protecting some little animal while maintaining complete silence on the number of families who's property can no longer be built on, improved or even repaired if structurally damaged.

If nothing is done to correct the problem, all of our news will be slanted and edited to suit the agenda of whoever owns the printing press or transmitter. Some of us may tune the media out completely. others may patronize the news source that most closely fits our political leanings. But all of us will be as clueless about what is really happening in our world, our government, our cities and just about anything we did not personally witness us as those living under a totalitarian regime.

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The serious, real journalists of this country are more needed now than they ever have been because the blogs and the mp3s and the iPods, they're all talking about the news, but where does the news originate? It originates with a reporter. It originates with a news organization.
- Jim Lehrer

Respect for journalists is like respect for doctors. It involves making your neutrality clear and being seen to be neutral.
- Kate Adie

The tragic case of Julie Amero

Ft. Myers, FL - Julie Amero will be sentenced next week for exposing children in a classroom where she was substitute teaching to pornographic images. Under the law she could get up to 40 years in prison.

I'm sure that some of you out there are now cheering, thinking she deserves all that and more. But before you mentally hang Ms. Amero read Andrew Kantor's column on the subject.

Imagine you know next to nothing about computers. You're a substitute teacher for a seventh grade class. There's a computer in the classroom and, knowing you're going to be sitting there for a while, you ask a fulltime teacher if you can use it. He logs you in with his password and tells you not to shut it off because you couldn't get back on.

Not that you have a clue about this stuff, but that computer is running Windows 98 and the outdated Internet Explorer 6.02. Its filtering and anti-virus software have expired, and it has no anti-spyware software.

You step out of the classroom for a moment. When you get back the kids are clustered around the computer, checking out hairstyle websites. But one is actually a link to porn sites, and it loads a Trojan onto the unprotected computer.

Suddenly, pop-ups start appearing — X-rated popups.

You start to panic. You're not supposed to shut the machine and you don't realize you can just shut the monitor. You try to block the screen, but — like normal seventh graders — the kids are curious and pushy.

You run to the teacher's lounge for help. Finally you get some and the crisis ends. But the kids have seen the porn. They tell their parents. The parents tell the school.

You tell the school administrators what happened, but they don't bother (or don't know how) to check the computer for the adware you described. Instead they fire you.

And soon you're arrested and charged with four counts of "risk of injury to a minor, or impairing the morals of a child." You're facing 40 years in prison.
USAToday: Cyberspeak - Police, school get failing grade in sad case of Julie Amero

He follows that column up with this one: USA Today: Cyberspeak - Case against Julie Amero needs to be deleted

This case has truly brought about a comedy of errors that demonstrates just how bad things can get when the computer illiterate pass judgment on computer related issues.

But what bothers me is the level to which the Norwich Bulletin sank in covering this case. There is now overwhelming technical evidence that:

• The computer in the class room had a scorching case of computer clap.
  
• The schools IT professional is profoundly lacking in the most basic of computer skills.
  
• The police had even less computer knowledge.
  
• Testimony that Amero tried to get help with the popup storm from regular school employees.
  
• Her legal council was only slightly less useful on a computer related case then a trained chimpanzee would have been.

But the Norwhich Bulletin apparently sees itself as judge jury and executioner.

Check this column out:

Amero has many supporters, which should not sway the court, as most of them have formed opinions based on limited knowledge of the facts of the case, or simple hearsay. At the heart of this international debate is whether Amero was responsible for causing the pornography to be on the computer screen for an entire school day, when seventh-grade students were able to view it. Many in the technology field have suggested she was the victim of a "porn storm," which were frequent problems in 2004, when the incident occurred. Some suggested the computer was overtaken by malware or spyware, technical parasites that will plant unwanted images, pop-ups, etc., onto a computer. Some have suggested Amero was the victim of a conspiracy by students.

Read the transcripts of the case and many of these arguments become moot. Read Amero's own words. Yes, there were victims: the children in the classroom who saw the graphic images. Six of them testified to the events of Oct. 19, 2004. Whether Amero was purposefully exploring pornographic Web sites, or was the victim of a technological assault, is irrelevant. She was the adult entrusted with the safety of those children, and she failed.
The Norwich Bulletin: Our view: Porn was Amero's burden (I really think you should read the whole thing.)

So how do you protect yourself when the one last watchdog that is supposed to shine a light on government incompetence and maybe keep the wheels of government from rolling over the innocent decides to join the lynch mob calling for your head?

Journalism used to mean printing the facts and only the facts. And if you are wrong, correcting that as soon as possible. I'm not certain what it means now.

More links:

Network Performance Daily: The Strange Case of Ms. Julie Amero: Commentary by Mr. Herb Horner (This is the expert witness for the defense, well worth the read.)
Andrew Kantor's Blog: The Norwich Bulletin’s Sunday editorial — why it’s so wrong
Andrew Kantor's Blog: The Norwich Bulletin on Julie Amero
Andrew Kantor's Blog: New Julie Amero Column Up
Andrew Kantor's Blog: Proof of bad testimony in the Julie Amero trial

A full transcript of the trial was on line, however that site quite working.

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Justice in the life and conduct of the State is possible only as first it resides in the hearts and souls of the citizens.
- Plato

I almost killed a child tonight

Ft. Myers, FL - Tonight I came too damn close to hitting and quite probably killing a child with the satellite tuck. I was just pulling the truck out of the parking spaces behind the restaurant that fed me tonight. The child, somewhere between toddler and kindergarten age, came from the right and slightly to the rear of the cab passenger side door, running diagonally across the parking lot. He could not have picked a better approach to remain invisible to me.

At the angle the child approached the truck it was only by pure chance that I saw his head pass through my field of view over the right side of the hood. In that instant he vanished out of view in front of the truck, behind the hood.

I stood on the brakes and clutch. Roughly 30,000 lbs of kinetic energy lurched to a sudden, noisy halt.

A year long second of dread passed...

"Oh my God!" I thought... "Was that a thud or weight shifting on the springs?"

He came back into view on my side of the truck, running around to stop outside my window. He looked up at me smiling. A few seconds later, I began to breath again. My hand shot out and popped the parking brake. My foot came off the brakes, the truck blew off a fantastic quantity of air.

And then the shaking began...

I rolled the window down and asked the child what he wanted. Completely oblivious to how close he came to death, his reply was simple, "Can I see your truck?"

"Where is you mother," I asked.

He basically pointed through the truck, back in the direction he came from. Shaking violently now, I climbed out of the cab and told the child that I cannot show the truck to him without his mother being there. I suggested that we go see her. We made it half way back down the side of the restaurant before mama bear came around the corner looking for her wayward child. She called him and he ran to her.

I told her he ran in front of the truck. She said, "Oh, he really likes big trucks."

By this time papa bear joined us. I explained that I almost didn't see him and it was a very close call. I suggested that maybe she should keep a better hold on him.

"Well, you really shouldn't have a truck that size in a public parking lot," She replied.

Papa bear agreed with her.

Based on attitude and further conversation it seems that in their world, I am at fault here. From their perspective there was absolutely no problem with the fact their 3-4 year old boy took off and no one noticed until I was walking him back to the front of the restaurant. With a major dose of adrenaline coursing through my system it's a miracle my mouth remained under control as long as it did.

During this part of the conversation another couple came around the corner looking for these folks. I asked them to take the child for a walk so I might speak with the parents privately. They did so.

The experiences from years working EMS and then some time with the coroner's office make for excellent reference material when telling stories. Exactly what I said to mama and papa bear is not important. I'm not sure if I could remember it all anyway. I finished with, "And keep always in your heart, there are things worse then being dead. But don't take my word for it, visit the vegetable ward at any hospital and see for yourself."

She looked like she was going to be sick. He looked as if he'd been punched in the stomach. That is the way I left them.

The consequences of not taking that one last glance at the right hand mirror are still running laps around my head tonight. The vision of that child disappearing from sight under the hood plays unbidden through my mind at random intervals. Maybe writing all this out will capture that demon so I can get some sleep.

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"There but for the grace of God..."
- Just about everyone who's had a close shave.

No Child Left Behind

Ft. Myers, FL - An on-line forum I frequent has several vehement Bush hater members. Their latest cause for jubilation is that many Republican members of the House and Senate have banded together to overturn the no child left behind act.

Here's part of a Washington Post article on the subject:

More than 50 GOP members of the House and Senate -- including the House's second-ranking Republican -- will introduce legislation today that could severely undercut President Bush's signature domestic achievement, the No Child Left Behind Act, by allowing states to opt out of its testing mandates.

For a White House fighting off attacks on its war policy and dealing with a burgeoning scandal at the Justice Department, the GOP dissidents' move is a fresh blow on a new front. Among the co-sponsors of the legislation are House Minority Whip Roy Blunt (R-Mo.), a key supporter of the measure in 2001, and John Cornyn (R-Tex.), Bush's most reliable defender in the Senate. Rep. Eric Cantor (Va.), the House GOP's chief deputy whip and a supporter in 2001, has also signed on.

Burson Snyder, a spokesman for Blunt, said that after several meetings with school administrators and teachers in southwest Missouri, the House Republican leader turned against the measure he helped pass. Blunt was convinced that the burdens and red tape of the No Child Left Behind Act are unacceptably onerous, Snyder said.
Washington Post - Dozens in GOP Turn Against Bush's Prized 'No Child' Act

Hmmm... School administrators told House Minority Whip Roy Blunt they do not like comparing their students with nationally set minimum standards. The article goes on to quote complaints that affluent school districts feel their districts are "being adversely affected" because "innovative" programs are being replaced by federal mandates.

What a crock!

Over the last few weeks I've had the privilege to work with Japanese crews covering Japanese baseball players in spring training. Japanese (along with many other nation) students of all grades have been routinely out performing students from the United States for several decades now. So I took the opportunity to ask them about the Japanese educational system.

Guess What...

Japanese Children are tested by the government...

EVERY TWO YEARS!

Want to know something else?

If the student doesn't pass the test, that student is held back!

Imagine that. A school system that actually requires a student to have a solid foundation in the current material before that student is promoted to the next level. No setting up the struggling students to fail.

But no. The NEA and their membership whined about standards and accountability from the beginning. Let's see if I can remember some of their most eloquent arguments against standardized testing to see if our children actually learned anything in school.

• Standardized testing stigmatizes the children that fail it.
  
• Testing is racist!
  
• Standardized testing does not give a true picture of a student's education.
  
• "One size fits all" testing does not work.
  
• Federal testing is an intrusion on local school board sovereignty.
  
• No Child Left Behind is under/not funded.
  
• Federal standards limit or eliminate touchy feely experiments like no grades, ignoring bad spelling, wasting classroom time on social engineering, self esteem over all else, etc. (Everyone one that wants to volunteer their child as a guinea pig raise their hand?)

Check out this paragraph from the NEA's own web page on the matter:

Rather than focusing on high stakes tests, NEA's comprehensive strategy calls for measuring student achievement over time through multiple indicators. NCLB takes a snapshot of student performance on two tests on one day rather than delivering a complete portrait of students' needs and achievements. NEA's plan would transform NCLB to assist states and schools in improving overall student achievement while closing achievement gaps.
NEA Website - Fifth Anniversary Presents Opportunity
To Revamp No Child Left Behind Act

Okay, I got it. No pressure, all is right with the world, don't worry about any deadlines or tests, you've got nothing to lose here... Unless all these students are going to grow up to be teachers where there is no accountability, that is no way to prepare a child for real world workplace expectations.

There are many more official arguments but I think you get the idea. They are all bullshit.

I believe all those arguments are nothing more then minor sidebars to the NEA's primary concern about nationwide standardized testing for all public school students. I believe the NEA and their individual state chapters simply do not want to be held to any standard of accountability for the education of students in the public school system.

Standardized testing has already made many school systems and many NEA members look pretty bad. The NEA could use the data from the standardized testing to go to the problem schools, identify the problems and fix them. After all, this is the National Education Association.

Instead, they choose to shoot the messenger. But the NEA doesn't toss that reason out as a problem. The teacher's union is not stupid enough to admit they simply do not want to be held to any standard of proof in job performance. And once again they are proving they will fight tooth and nail to protect their membership even at the expense of education standards.

So the legislative battle is engaged. If these legislative clowns bow to the pressure of the NEA lobbying and letter writing campaign, individual states may be able to opt out of No Child Left Behind.

The next time you are shocked to see public school students from the United States ranking in double digits on the latest and greatest global survey, think back to the war the NEA, the state educational associations, the individual school districts and all those teachers waged on No Child Left Behind.

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"America's future will be determined by the home and the school. The child becomes largely what he is taught; hence we must watch what we teach, and how we live."
-Jane Addams