Thomas judge bars Fair Use defense, OKs MediaSentry evidence - Ars Technica - The Diigo Meta page

• 13 Jun 09
  

  Patrick O'Keefe

  • Camara also claimed that MediaSentry was violating federal "pen register" laws and wiretapping statutes by recording the packets sent to it over the Internet. The Court didn't buy that one, either. "The Pen Register Act cannot be intended to prevent
    individuals who receive electronic communications from recording the IP
    information sent to them. If it did apply in those cases, then the Internet could not function because standard computer operations require recording IP
    addresses so parties can communicate with one another over the Internet," he wrote.

    
    

    "Additionally, the Pen Register Act does not bar recordings of the contents of communications that are made with the consent of one of the parties to the
    communication."

  • As to the claim that Thomas-Rasset had an expectation of privacy around her communications, the judge completely disagreed. "There is no expectation of solitude or seclusion when a person activates a file sharing program and sends a file to the requesting computer," he wrote. "By participating in Kazaa,
    a user expects millions of other users to view and copy her files, each time
    receiving the very information that Thomas‐Rasset sent to MediaSentry and
    MediaSentry recorded."
  • 1 more annotations...
  • • "Defendant failed to raise the fair use defense in her Answer,
      at any time before the First Trial, during the First Trial, or at any time leading up
      to this retrial until only two weeks before retrial," said the judge. "This litigation has gone on for
      years, yet Plaintiffs had no inkling of this defense until the eve of trial. Because
      Plaintiffs had no notice of this defense, they have taken no discovery regarding Defendant’s alleged fair use defense. The record in this case, with which this Court is intimately familiar, gave no hint that a fair use defense would be
      forthcoming. It would be highly prejudicial to Plaintiffs to allow Defendant to assert this new affirmative defense on the eve of retrial, when they have no
      opportunity to conduct discovery on this issue..."
• 12 Jun 09
  

  Jonathan Bailey

  115 mediasentry riaa thomas fairuse

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