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RIAA Victims Bring Class Action Against Kazaa 288

Posted by Zonk
from the playing-right-into-their-hands dept.
NewYorkCountryLawyer writes "In Chicago, Illinois, a Kazaa customer has filed a class action against Kazaa, Lewan v. Sharman, U.S.Dist. Ct., N.D. Ill 06-cv-6736. The lead plaintiff, Catherine Lewan, was a Kazaa customer who was sued by the RIAA for her use of Kazaa, and paid a settlement to the RIAA, and she sues on behalf of others in her position. In her complaint(pdf) she alleges, among other things, that Kazaa deceptively marketed its product as allowing 'free downloads' (Complaint, par. 30); it designed the software in such a manner as to create a shared files folder and make that folder available to anyone using Kazaa, while at the same time failing to make the user aware that it had done so (Complaint, par. 36-37); and it surreptitiously installed 'spyware' on users' computers which made the shared files folder accessible to the Kazaa network even after the user had removed the Kazaa software from his or her computer (Complaint, par. 42-45)."
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RIAA Victims Bring Class Action Against Kazaa

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  • by dada21 (163177) * <adam.dada@gmail.com> on Thursday December 07, 2006 @02:23PM (#17150162) Homepage Journal
    ...I also don't support using the courts to try to decide who is a victim and who isn't. For me, I'd rather buy optional insurance to protect my transactions than worry about suing someone.

    This is another case that reminds me of so many court cases and other reasons to ask the State for help:

    "It wasn't my anger, your honor, it was the gun!"
    "It wasn't my inability to stop eating, your honor, it was the pill!"
    "It wasn't my irresponsibility to save for the future, your honor, it was commercial society!"
    "It isn't that I refuse to learn a trade and stick to it, it is just fair to pay a living wage!"

    Sheesh. Yet another waste of time that will only make the lawyers wealthier and the State more powerful.
  • by creimer (824291) on Thursday December 07, 2006 @02:24PM (#17150204) Homepage
    Won't be long before kids are suing their parents for neglecting them while pursuing a lawsuit against Kazaa for being self-made victims.
  • by Fedorpheux (912926) on Thursday December 07, 2006 @02:26PM (#17150238) Homepage
    ...sue the voices in her head that told her to download copyrighted material.
  • Ridiculous. (Score:5, Insightful)

    by SatanicPuppy (611928) * <`Satanicpuppy' `at' `gmail.com'> on Thursday December 07, 2006 @02:28PM (#17150280) Journal
    This is like smokers suing convenience stores because that's where they bought the smokes that gave 'em lung cancer.

    I bet these same people all felt like devious little rule breakers when they were doing all that copyright violation, secure in the knowledge that no one could ever catch them.

    I can kinda see how the record companies can win a suit against the p2p providers, saying that their software enabled all these people to violate copyright law, but how the hell can all these people expect to win a suit against a company whose software enabled them to break the law? Kazaa's EULA spelled out that the software should only be used for legal purposes, but even if it didn't this will die because there is a huge amount of precident in prohibiting companies from being sued when their products were used in the commission of crimes (hello, gun manufacturers).

    If only common sense were more common.
  • by Anonymous Coward on Thursday December 07, 2006 @02:28PM (#17150300)
    I hate RIAA as much as anyone, but this is just ridiculous. The person downloaded software and installed it, for the express purpose of stealing music. They knew there was no free lunch. Kind of like somebody approaching you and offering to give you a bunch of car stereo equipment out of their truck for $10. What's that saying? If it seems to good to be true, it is? In the latter case, you'd be guilty of receiving stolen property. In this case, you are guilty of copyright violation. End of case. Just another example of trial attorneys lining their pockets with reprehensible class action lawsuits.
  • Re:Ridiculous. (Score:5, Insightful)

    by garcia (6573) on Thursday December 07, 2006 @02:29PM (#17150320) Homepage
    This is like smokers suing convenience stores because that's where they bought the smokes that gave 'em lung cancer.

    It's more like suing your drug dealer after you go to prison for getting caught with a rock.
  • Welcome to the land of no accountability. We don't hold anyone accountable for what they do here, not our politicians, not corporate CEOs, and definitely not morons who hurt themselves or break the law.

    It's always someone else's fault.
  • by gt_mattex (1016103) on Thursday December 07, 2006 @02:34PM (#17150410)

    Suing someone is now a way of recouping losses rather than a way of seeking justice.

  • Customer? (Score:5, Insightful)

    by StarvingSE (875139) on Thursday December 07, 2006 @02:34PM (#17150412)
    How can you be a customer of a company that provides Free as in Beer software?

    I call bullshit on the fact that the person claims she didn't know how kazaa worked. Its explained right here [kazaa.com] for cryin' out loud.

    All this person is doing is trying to get their money back that was extorted by the RIAA. Her lawyer probably weighed the difficulty of a counter-suit against the RIAA and suing Kazaa. Guess who won.

    I call shenanigans on this one. Tagged: Traitor
  • Re:Ridiculous. (Score:2, Insightful)

    by Ngarrang (1023425) on Thursday December 07, 2006 @02:35PM (#17150426) Journal
    Your Honor, I would like to blame Ford Motor Company for selling me a truck that will go 150 MPH. If they hadn't sold me that truck, I wouldn't have gotten this speeding ticket.
  • by elrous0 (869638) * on Thursday December 07, 2006 @02:36PM (#17150450)
    I somehow suspect the RIAA itself may be behind this lawsuit.

    -Eric

  • by gt_mattex (1016103) on Thursday December 07, 2006 @02:37PM (#17150458)
    Or outright profit for that matter.
  • by wawannem (591061) on Thursday December 07, 2006 @02:41PM (#17150544) Homepage
    Although you may be right, I think there may be some merit to her case. Do we punish the owners of the masses of infected/infested PCs who spew out tons of email? We assume that everyone understands technology and legal issues the way we do, but in fact, I would say that it is very possible (even likely) that most people don't understand the ramifications of using Kazaa. Imagine a teenager showing a grandparent the library of music available online through Kazaa. Having never used the software, I can't say whether or not there are warnings about the dangers of trading copyrighted content, but if the warnings are obscure and not prevalent (like the warning labels of cigarettes) then maybe they should be held accountable.
  • Only in America. (Score:4, Insightful)

    by jbssm (961115) on Thursday December 07, 2006 @02:41PM (#17150552)
    Tss, tss, only such a stupid legal system as the American could lead people to do this kind of stuff.

    If you had a legal system of some righteousness, you would force someone that files a case against another person (unless for crimes that involve violence) to pay the defendant legal costs in case the defendant was found innocent... that way, all those stupid legal cases we see in America would never have been brought to justice in the first place ... much less find a jury stupid enough to actually agree you are right (yeah that's right you also have that idiot system in which you call a bunch off illiterate people from the streets, that know nothing about justice, and get them decide if someone is innocent or guilty).
     
  • by Anonymous Coward on Thursday December 07, 2006 @02:42PM (#17150566)
    What does paying for slashdot give you that you couldn't get with a free subscription?
  • by poot_rootbeer (188613) on Thursday December 07, 2006 @02:45PM (#17150608)
    I also don't support using the courts to try to decide who is a victim and who isn't.

    What, then, do you think the courts are supposed to be used FOR...?

    And did you really need to construct FOUR strawman arguments that may never have actually been argued in a courtroom? Wouldn't one have been enough to support your fallacy?
  • by dada21 (163177) * <adam.dada@gmail.com> on Thursday December 07, 2006 @02:46PM (#17150632) Homepage Journal
    What does paying for slashdot give you that you couldn't get with a free subscription?

    Very little. My reason for subscribing is (in order of importance):

    1. To support the site with my money, showing that it has value.
    2. To generate a tiny level of respect for those who also subscribe or give a subscriber bonus to their own personal mod modifier.
    3. Receive the chance to read articles before they're slashdotted.
  • by Programmer_In_Traini (566499) on Thursday December 07, 2006 @02:52PM (#17150730)
    This is precisely why the U.S. justice system is broken.

    Seriously, does she really expects us to believe that she did not know it was illegal, that she could get sued over it ? Seriously ? Nah, she knew full well but much like everyone doing this, we just assume RIAA is not gonna come for regular people like us because its not worth it.

    So now she does get sued and she says, was that illegal ? oh im sorry, Kazaa never said that! *pointing finger* damn you Kazaa, you got me in trouble. Now, not only will I sue you but I'll sue you on behalf of all people who didn't know (whisper:this way i can get more money)

    But just because the system allows it, tons of folks are suing each other for stupid reasons and to make a quick buck.

    My wife is a lawyer and I once asked her why we seldom see these things happening in canada. That's because the justice is different in that here, to win a cause you need a damage, a fault and the correlation between the two. Most of the time, people cannot make a strong argument in the "correlation between the two" part and the case ends there.
  • by sumdumass (711423) on Thursday December 07, 2006 @03:03PM (#17150922) Journal
    It is not Kazza's duty to inform it's customer base of the various laws that cold be broken. Ford or toyota do not place warnings on the stering wheel or fuel tank's cap warning about driving too fast for conditions or speeding or having a valid drivers license or even insurance before operating. In most states/areas. you don't even need a valid drivers license to buy a car. Try getting out of a ticket by claiming the manufacturer never warned or instructed you about the laws. Try going back after them when you gte busted for breaking a law they never informed you about.

    It is the consumers obligation to know what they are using and how it to be used. As with almost everything else, Kazza, cars, kitchen knives, ropes, chains,/whatever can be used in a way that isn't legal. Furthermore, It could be not legal in one area but legal in another. Or under certain circumstances were maybe downloading an audio file of the garage band next door is and downloading three doors down might not be. This is just like driving a car down the street isn't illegal but driving a car down the street without a license might be.

    The only merit I can see from this suit is were it says the shared folders still shares files after you try to remove the software and the software makes it appear that you did. The difference in this and small label on the tobacco packs is that the tobacco companies were force to place the warnings there and actively campaigned to deny the health risks. Kazza has always claimed downloading and sharing someone else's copywriten material without there permission was not legal. They kust claimed that there are legal uses like open source software or situations were the copyright hold places the files online to the shared.

    In contrast, that would be like the tobacco companies claiming that cigs make good cleaning agants when used in a certain manor instead of claiming the surgeon general warning were bunk and smoking is healthful.
  • by Anachragnome (1008495) on Thursday December 07, 2006 @03:06PM (#17150978)
    While I am sure the person that is suing would be happy as a clam to get some financial gain from this, I think alot of you are missing the point.

    What this case is trying to do, in a round about fashion, is to set the stage for other actions.

    If this person wins this case it opens the doors for alot more. Once it can be shown in court that Kazaa either misled or outright lied to its users, it can then be shown that Kazaa was AIDING AND ABETTING the the criminal violation of copyright laws. Once that takes place, then Kazaa itself can be held liable for CRIMINAL actions.

    It would not surprise me in THE SLIGHTEST that the RIAA is behind this themselves. Its all about "precedence". Once you win a small case, its only makes it that much easier to use that small case as a foothold in larger, farther reaching and far more serious cases.

    While I believe that the person filing the suit, and everyone else that steals copyrighted material should be prosecuted, I also believe that anyone that made it possible for them to do so should be held accountable as well.
  • End Users (Score:2, Insightful)

    by pkcs11 (529230) <pkcs11@msn.AAAcom minus threevowels> on Thursday December 07, 2006 @03:15PM (#17151130) Journal
    With the ubiquity of internet access comes a deeper spectrum of users, some of whom legitmately do (did) not know that using Kazaa (shareazaa et al.)to trade/download/share music is illegal. Without proper messaging from Kazaa (et al) the burden should also rest on their shoulders.
  • by Vellmont (569020) on Thursday December 07, 2006 @03:36PM (#17151494) Homepage

    So you want to subsidize stupidity?


    It kind of amazes me that this has become an argument. Just put the word subsidize in front of any form of funding and put people on the defensive.

    So you want to subsidize transportation?
    So you want to subsidize schools?
    So you want to subsidize the Army?
    So you want to subsidize the elderly?
    So you want to subsidize Africa?

    The basic premise seems to be "Why can't these lazy bastards stand on their own two feet and pull themselves up by their bootstraps!!"

    Which ignores the basic fact that no one stands on their own two feet. We're all dependant on one another. I'm a bit tired of the "self made man" fallacy.
  • Re:Ridiculous. (Score:1, Insightful)

    by Anonymous Coward on Thursday December 07, 2006 @03:37PM (#17151522)
    Using Kazaa's product supports an illegal activity

    While Kazaa (or any P2P software for that matter) can be used for illegal file transfers, P2P software has plenty of valid uses as well. From your statement all car manufacturers should be held responsible for any thief that uses a vehicle as a "get away" car. As for a valid use, my company has been using P2P for working with large image files between different physical sites.

    The only thing that makes these different (besides legality) is that the tobacco maker's product actually reduces your ability to stop the bad behavior.

    Did Kazaa provide the plaintiff with a tool or a tool with directions on illegally downloading copyrighted content? Kazaa provides a tool that allows users to locate and obtain a copy of information shared by other users. At worst case, the plaintiff could go after those who provided the copyrighted material as they offered the material without obtaining the rights for it. One could probably build a case that companies have offered music (Coke Rewards - music downloads comes to mind) and they obtained the necessary rights to do so. One could apply that logic to believe that the individuals offering the copyrighted songs would also have obtained the necessary permissions. Now that would have to be a pretty naive person but as I said, that's the "worst" case.

    Jim
  • by wawannem (591061) on Thursday December 07, 2006 @03:39PM (#17151558) Homepage
    I never yelled "There should be a law!"

    I think you are completely missing my point. I agree that people know that stealing is wrong, but what I suggest is that many people may not realize that listening to music they haven't paid for is stealing. Before the massive ad campaigns, I think most people didn't realize that they could be sued for downloading music. I had to explain to a sister-in-law that napster/kazaa was a bad idea because they were stealing and their response went something like: "Well... I listen to it on the radio without paying for it, is that stealing? If not, how is it stealing when I listen on my computer?" This is an educated (master's degree) adult who was confused on the matter.

    I don't doubt that people don't steal because it is wrong, but if such a mass of people are stealing could it be possible that they don't realize they are stealing?
  • by Viper Daimao (911947) on Thursday December 07, 2006 @03:51PM (#17151820) Journal

    We're all dependant(sic) on one another.
    Of course we are, and it takes the form of the free market. Subsidizing however makes us all dependent on govt, not each other. Do you really want to be dependent on a body that is at any given moment is 45%-55% composed of people from the *insert political party you disagree with here* party?
  • by ToxicBanjo (905105) on Thursday December 07, 2006 @04:02PM (#17151982)

    This kind of crap really disturbs me because I make my living writing software. Kazaa's legality is not the issue, it's the sueing of a software maker because someone misused the program that has me steamed.

    I read of people who use software to do exactly what it was written for, then they sue the software makers because they did something illegal with the program and got caught, or because "it (the program) should have known I was doing bad stuff and stopped me."

    If I write a program to admin an SQL server and someone uses it to hack/damage SQL Servers how the fuck can I be liable for it? I can put disclaimers in and still get sued so this could be a very bad precedent.

  • by wawannem (591061) on Thursday December 07, 2006 @04:06PM (#17152060) Homepage
    Wait, let me get this straight... You are quoting a work of fiction [wikipedia.org] as your basis to argue that this woman's case is wrong? That's about as shakey as the people who point to the bible as their argument against masturbation [gnpcb.org]

    Well, we'll let the courts decide then, but I would assume that her attorneys will bring more than works of fiction to the table.

    What I base my opinion on is what I've observed. In my observation, a lot of the people I know who have used Kazaa are not computer professionals or copyright experts but they also would be considered intelligent, educated citizens. They assume that they pay for tangible items, and that digital copies aren't stealing because there is no physical DVD or CD. I am not making a point that they are right or wrong, I am simply pointing out what these people think. In an earlier post, I point out something someone asked me, "If listening to a song on my computer for free is stealing, then is listening to the same song on the radio stealing too?"

    To people like the /. crowd this is a ridiculous argument, but to many people they don't understand that stealing information is just as much stealing as the theft of physical items. Do I think it is Kazaa's job to tell people that? I don't, but the courts may. The courts have harshly judged companies in the past (think tobacco industry and prescription drug companies) for not warning people about their products.
  • by Kjella (173770) on Thursday December 07, 2006 @04:18PM (#17152290) Homepage
    Although you may be right, I think there may be some merit to her case. Do we punish the owners of the masses of infected/infested PCs who spew out tons of email?

    Because we're rather sure they had nothing to gain by making their PC and Internet slow and annoying. In this case, she quite clearly got "free" music which sounds like a rather good motive if you ask me. Just downloading is against the law tiself (see the Napster case), even if they manage to argue being clueless about sharing it. The most pathetic are the ones I see that go like "I didn't know if Napster was illegal or not, but when they got convicted I stopped" as if it wasn't clear all along that the direct infringers were guilty as hell - it was only a matter of secondary liability or not. To quote the 9th circuit Napster case:

    "We agree that plaintiffs have shown that Napster
    users infringe at least two of the copyright holders exclusive rights: the rights of
    reproduction, 106(1); and distribution, 106(3). Napster users who upload file
    names to the search index for others to copy violate plaintiffs distribution rights.
    Napster users who download files containing copyrighted music violate plaintiffs
    reproduction rights."
  • by mangu (126918) on Thursday December 07, 2006 @05:02PM (#17153192)
    They assume that they pay for tangible items, and that digital copies aren't stealing because there is no physical DVD or CD.


    I fully agree with this. Copyright violation is not stealing.


    But my point wasn't about this very important difference. My point, on which I extensively quoted Heinlein's opinion, is that being considered "intelligent, educated citizens" isn't enough if your education is limited to non-technical issues. This was already true when Heinlein published his story more than five decades ago, and it's much more relevant today.
     

  • I'm pretty sure his money towards slashdot has netted him more than your XBL subscription but that's just me. I guess its relative.

    I'm pretty sure his money towards slashdot got him nothing at all. He gets to see stories an hour earlier when most people (being nonsubscribers) can't see the story, therefore can't comment, therefore can't make the story valuable. He gets to not see ads, which I don't see either. What else does he get? Poorer.

    See, slashdot's customers are the advertisers, just like google's customers. The users are not the customers. The users are there to make the site valuable to the advertisers. And the users who pay for something they can get for free, we call "suckers".

  • by Overzeetop (214511) on Thursday December 07, 2006 @05:22PM (#17153566) Journal
    You're presuming that the people have any say in such a condition, which they do not. Even if the US were not a republic, with representatives listening to the handlers which keep them in office, you are under the incorrect impression that a true democracy would be fouled by the advertising clout that can be brought to bear when billions of dollars is at stake. I do like your optimism though.
  • by mangu (126918) on Thursday December 07, 2006 @05:42PM (#17153930)
    if the car manufacturer broke the law while building the car you drive, then clearly you should go to jail.


    Yes, of course, under many circumstances you should! And if your computer causes a fire [dellbatteryprogram.com] you should be jailed for arson.


    The fact is that technology may become dangerous. It doesn't matter if a mistake was made by someone else, if a tragedy occurs because you didn't care to act upon information that was available to you, then you are guilty as well.

Suburbia is where the developer bulldozes out the trees, then names the streets after them. -- Bill Vaughn

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