Defendant Andersen's attorney on RIAA suit: "They can't run now"

Friday may mark a significant milestone in the RIAA's legal campaign against file-sharing, as it is the deadline for exonerated RIAA defendant Tanya Andersen to refile her malicious prosecution lawsuit against the record labels. Soon afterwards, discovery will begin, and all sorts of unsavory details about the RIAA's legal campaign against suspected file-sharers are likely to emerge.

Andersen is a single mother living in Oregon who was sued by the record labels in February 2005. She eventually filed a counterclaim against the RIAA, and when the labels voluntarily dismissed their case against her last June, she filed a malicious-prosecution lawsuit. In it, Andersen accuses the RIAA of fraud, racketeering, invasion of privacy, libel, slander, deceptive business practices, and violations of the Oregon state RICO Act.

Last month, a federal judge dismissed Andersen's original complaint, saying that she had "not adequately stated claims for relief," but gave her a one-month window to refile. Her attorney, Lory Lybeck, told Ars that he plans to file a new 80-page complaint tomorrow. "The focus of the amended complaint is essentially the sham litigation and abuse of the federal judiciary to operate this criminal enterprise that has harmed Tanya Andersen and thousands of other people," Lybeck said.

With a new complaint, the case is certain to move forward into the discovery phase, as the judge has told both sides that she would not entertain any further motions to dismiss this case. It's an uncomfortable place for the RIAA to be in.

"Usually, the parties are entitled to liberal pretrial discovery of anything related to the subject matter of the case," copyright attorney Ray Beckerman told Ars. "So the scope of the amended complaint will have a big impact on what is and what is not discoverable."

Lybeck tells Ars that he'll be digging into agreements between the RIAA, RIAA member companies, MediaSentry, and the Settlement Support Sentry. Part of that will involve looking at compensation, like how much MediaSentry gets from each settlement. "I'd love to know what kind of bounty MediaSentry got paid to supply erroneous identities to the RIAA," Lybeck says.

One of the allegations in the amended complaint will involve MediaSentry's status as a private investigator. "MediaSentry claims it is able to gain access to people's hard drives without their permission and collect information," notes Lybeck. "It's illegal because they're not licensed to do that work."

The amended complaint and subsequent discovery will also focus on what Lybeck calls the "flawed nature" of the RIAA's investigations. "We know [the RIAA] cannot identify individuals," he says in response to a question on false positives. "We want to know how many dolphins the RIAA is catching," referring to a former RIAA spokesperson's 2003 comment about accidentally catching a few dolphins when fishing with a net.

The RIAA is likely to fight the discovery process tooth and nail, however, as the information that is unearthed could prove to be extremely embarrassing, if not problematic. "They've operated in this zone of secrecy for five years now, and we hope to put a stop to that," Lybeck stated emphatically, "because it will become obvious that their conduct is illegal an their whole scheme is flawed at its basic core."

So far, the RIAA's attorneys have been uncooperative on discovery issues, according to Lybeck. He says that he has reached out to RIAA lead national counsel Richard Gabriel, who was argued the labels' case in the Jammie Thomas trial, in order to move the process forward. "He's refused," Lybeck said. "I assume we're going to run into the same stall and delay tactics."

Gabriel took issue with Lybeck's characterization, accusing him of making "false statements" about his conduct. "As I discussed with Mr. Lybeck, the Court dismissed all 13 of his client's claims," Gabriel told Ars. "As a result, there are no claims pending at the moment, and his request to schedule discovery is premature. We are eager to resolve all outstanding issues in this case and look forward to doing so in a rational way that follows the process outlined by the Court."

The judge has barred further motions for dismissal, so unless the RIAA decides to settle—a move Lybeck believes is in the group's best interest—the case will proceed through discovery and to trial. Unlike the thousands of lawsuits filed so far, the RIAA does not have the luxury of walking away from this case if there's a real chance of embarrassing information being released. "Once discovery happens in the cases the RIAA brings, they run," Lybeck says. "This is our case now, and they can't run."

Clinton is losing

by kos from DailyKOS

Let's count the ways that Obama is winning:

1.) Pledged Delegates: (Using AP's numbers, with Obama's count in parenthesis)

Obama: 1,390 (1,411)
Clinton: 1,248 (1,250)

2.) Popular vote: I updated this post with results from Mississippi. I took out the Texas caucuses just to give this the best pro-Clinton spin possible, though I still think the caucuses are a separate contest and need to be accounted for. (Obama ended up winning Mississippi by over 100,000 votes.)

Obama: 13,614,204
Clinton: 12,801,153

3.) Primaries Won: There are 37 total primary contests. All Obama has to do is win three more and he notches the lead in these contests. He can do that easily with just three out of Montana, South Dakota, Oregon, Indiana, and North Carolina.

Obama: 16
Clinton: 12

4.) Caucuses Won

Obama: 14
Clinton: 3

5.) Overall contests Won: It's a 2-1 Obama advantage (includes territories and Democrats Abroad).

Obama: 30
Clinton: 15

6.) Red and Blue States Won (including DC, not including territories or Democrats Abroad):

Obama: 16 Red, 11 Blue
Clinton: 8 Red, 6 Blue

8.) Money Raised (through February)

Obama: $168 million
Clinton: $140 million

So that leaves the Clinton campaign with what, exactly? Big states! Big states! Big states! I addressed that one yesterday.

Team Clinton has nothing except schemes of coup by super delegate, which they apparently think they can do by insulting entire Democratic constituencies and most of our nation's states.

But really, what else do they have? Their campaign is losing by every metric possible.

Obama Campaign Skewers Clinton E-mail Statement

Wednesday morning, the Clinton campaign sent reporters and bloggers covering the campaign a statement that consisted of questions and comments under the title of "Keystone Test: Obama Losing Ground."

The Obama campaign's communications department decided to annotate those questions and comments with some comments of their own... and boy, they held nothing back.

Below you'll find the annotated e-mail that has been making the rounds of the media. The Obama campaign's comments are in bold.

To: Interested Parties
From: Clinton Campaign
Date: Wednesday, March 12, 2008
Re: Keystone Test: Obama Losing Ground [Get ready for a good one.]
The path to 1600 Pennsylvania Avenue goes through Pennsylvania so if Barack Obama can't win there, how will he win the general election?

[Answer: I suppose by holding obviously Democratic states like California and New York, and beating McCain in swing states like Colorado, Iowa, Minnesota, Missouri, Virginia and Wisconsin where Clinton lost to Obama by mostly crushing margins. But good question.]

After setbacks in Ohio and Texas, Barack Obama needs to demonstrate that he can win the state of Pennsylvania. Pennsylvania is the last state with more than 15 electoral votes on the primary calendar and Barack Obama has lost six of the seven other largest states so far -- every state except his home state of Illinois.

[If you define "setback" as netting enough delegates out of our 20-plus-point wins in Mississippi and Wyoming to completely erase any delegate advantage the Clinton campaign earned out of March 4th, then yeah, we feel pretty setback.]

Pennsylvania is of particular importance, along with Ohio, Florida and Michigan, because it is dominated by the swing voters who are critical to a Democratic victory in November. No Democrat has won the presidency without winning Pennsylvania since 1948. And no candidate has won the Democratic nomination without winning Pennsylvania since 1972.

[What the Clinton campaign secretly means: PAY NO ATTENTION TO THE FACT THAT WE'VE LOST 14 OF THE LAST 17 CONTESTS AND SAID THAT MICHIGAN AND FLORIDA WOULDN'T COUNT FOR ANYTHING. Also, we're still trying to wrap our minds around the amazing coincidence that the only "important" states in the nominating process are the ones that Clinton won.]

But the Obama campaign has just announced that it is turning its attention away from Pennsylvania.

[Huh?]

This is not a strategy that can beat John McCain in November.

[I don't think Clinton's strategy of losing in state after state after promising more of the same politics is working all that well either.]

In the last two weeks, Barack Obama has lost ground among men, women, Democrats, independents and Republicans -- all of which point to a candidacy past its prime.

["A candidacy past its prime." These guys kill me.]

For example, just a few weeks ago, Barack Obama won 68% of men in Virginia, 67% in Wisconsin and 62% in Maryland. He won 60% of Virginia women and 55% of Maryland women. He won 62% of independents in Maryland, 64% in Wisconsin and 69% in Virginia. Obama won 59% of Democrats in Maryland, 53% in Wisconsin and 62% in Virginia. And among Republicans, Obama won 72% in both Virginia and Wisconsin.

But now Obama's support has dropped among all these groups.

[That's true, if you don't count all the winning we've been up to. As it turns out, it's difficult to maintain 40-point demographic advantages, even over Clinton]

In Mississippi, he won only 25% of Republicans and barely half of independents. In Ohio, he won only 48% of men, 41% of women and 42% of Democrats. In Texas, he won only 49% of independents and 46% of Democrats. And in Rhode Island, Obama won just 33% of women and 37% of Democrats.

[I'm sympathetic to their attempt to parse crushing defeats. And I'm sure Rush Limbaugh's full-throated endorsement of Clinton didn't make any difference. Right]

Why are so many voters turning away from Barack Obama in state after state?

[You mean besides the fact that we're ahead in votes, states won and delegates?]

In the last few weeks, questions have arisen about Obama's readiness to be president. In Virginia, 56% of Democratic primary voters said Obama was most qualified to be commander-in-chief. That number fell to 37% in Ohio, 35% in Rhode Island and 39% in Texas.

[Only the Clinton campaign could cherry pick states like this. But in contrast to their logic, in the most recent contest of Mississippi, voters said that Obama was more qualified to be commander in chief than Clinton by a margin of 55-42.]

So the late deciders -- those making up their minds in the last days before the election -- have been shifting to Hillary Clinton. Among those who made their decision in the last three days, Obama won 55% in Virginia and 53% in Wisconsin, but only 43% in Mississippi, 40% in Ohio, 39% in Texas and 37% in Rhode Island.

[If only there were enough late deciders for the Clinton campaign to actually be ahead, they would really be on to something.]

If Barack Obama cannot reverse his downward spiral with a big win in Pennsylvania, he cannot possibly be competitive against John McCain in November.

[If they are defining downward spiral as a series of events in which the Clinton campaign has lost more votes, lost more contests and lost more delegates to us ... I guess we will have to suffer this horribly painful slide all the way to the nomination and then on to the White House.]

[Thanks for the laughs guys. This was great.]

Obama Wins in Mississippi

Expects to be Dems' nominee and 'the party is going to be unified'.

JACKSON, Miss. - With a six-week breather before the next primary, Hillary Rodham Clinton turned her attention to Pennsylvania and beyond to counter the latest in a string of victories by Barack Obama in Southern states with large black voting blocs.

Obama won roughly 90 percent of the black vote in Mississippi on Tuesday, but only about one-quarter of the white vote. That was similar to the breakdown that helped him win South Carolina, Alabama, Georgia and Louisiana before losing to Clinton in Texas and Ohio, which has similar voter demographics to neighboring Pennsylvania.

"We have now basically recovered whatever delegates we may have lost in Texas and Ohio, and we have a substantial lead," Obama said Wednesday morning during a round of television network interviews.

Maggie Williams, Clinton's campaign manager, congratulated Obama on his victory in a written statement.

"Now we look forward to campaigning in Pennsylvania and around the country," Williams said.

Obama, in claiming his victory in Mississippi, said he expects to be the Democratic nominee and "the party is going to be unified."

Clinton was attending a presidential forum in Washington on Wednesday. Obama planned to be in his hometown of Chicago.

With 99 percent of the vote counted, Obama had 61 percent to 37 percent for Clinton.

Republican Sen. John McCain, who has already won enough delegates to claim the GOP nomination, rolled up 79 percent of the vote in Mississippi.

Delegate battle
Obama picked up at least 17 of Mississippi's 33 delegates to the Democratic National Convention, with five more to be awarded. He hoped for a win sizable enough to erase most if not all of Clinton's 11-delegate gain from last week, when she won three primaries.

The Illinois senator had 1,596 delegates to 1,484 for Clinton. It takes 2,025 to win the nomination. With neither appearing able to win enough delegates through primaries and caucuses to claim the nomination, the importance of nearly 800 elected officials and party leaders who will attend the national convention as unelected superdelegates is increasing.

Obama leads Clinton among pledged delegates, 1,385-1,237 in The Associated Press count, while the former first lady has an advantage among superdelegates, 247-211.

Other than Pennsylvania, the remaining primaries are in Indiana, North Carolina, West Virginia, Kentucky, Oregon, Puerto Rico, Montana and South Dakota.

RateMyCop censored by GoDaddy

RateMyCop.com -- a site where the general public can comment on police officers -- has been shut down by its hosting company, GoDaddy. The company claims his site had been engaged in "suspicious activity." Various police departments and organizations have spoken out against RateMyCop, arguing that it would reveal the identities of undercovers (undercovers are not listed on RateMyCop) or put police in danger by revealing their addresses and personal information (personal information and addresses are not given on RateMyCop), or that it would be used to grind axes against cops (RateMyCop has a facility for police rebuttal).

Unfortunately for the startup, the company it chose for hosting is known to be quick to censor its customers. In January of last year, GoDaddy took down entire computer security website -- delisting it from DNS -- to get a single, archived mailing list post off the web.

On that occasion, at least, it gave the site's owner 60 seconds notice. GoDaddy notified Seto by posting its "Oops!" message to his public website.

"You put on my website for me to call you, when you have my phone number?," says Sesto.

From Boing Boing.

Read a more in-depth article over at Wired Blogs.

Lessig publicly humiliates Andrew Keen

Larry Lessig found himself on a panel with Andrew Keen, whose "Cult of the Amateur" excoriates the Internet for breeding sloppiness and errors, so Larry went through a list of the errors Keen made in his book. First off, Keen's description of Lessig as someone who "laud[s] the appropriation of intellectual property." Lessig pointed out the many times that he'd decried this, and asked Keen to cite a single instance in which he'd done what Keen alleged. Keen sat silent.

Then, when Keen got home, he blogged (!) about the incident saying that he'd crowd-sourced the question to his blog-readers who'd affirmed that, indeed, Lessig had done what he'd said. Though, of course, no references were forthcoming.

I asked Keen if he had ever read anything I had written. He said he had. I asked him to name one instance where I had ever "laud[ed] the appropriation of intellectual property." He sat silently. I pressed. He had no answer. He could name no instance of my "laud[ing] the appropriation of intellectual property" because that's not my schtick. Indeed, as I repeatedly insisted in Free Culture (see pages 10, 18, 62, 63, 64, 65, 66, 139, 255), what others call "piracy" I was emphatically not writing to defend. Indeed, I criticized it as "wrong."

Now whether mine is a sensible view or not, or a view consistent with the Free Culture Movement or not, is an argument had on this page many times. But the Keen-relevant point is that my claim was a claim about a fact. He alleges I "laud the appropriation of intellectual property." I claim I do not. That's a true/false claim. And so in the tradition of the professional truth-seeker, so threatened, Keen believes, by the wisdom-of-the-crowds Internet, one would think that the disagreement would be resolved by someone actually reading something, or at least providing some citation. No doubt it was unfair to call Keen out on stage. He didn't come with his notes. Why would I expect him to be able to identify anything in my work at all? But after the conference, perhaps. Maybe then Keen could defend the assertion that I flatly denied.

And indeed, he now has -- but the interesting (self-parody point) is how.

In a blog post, Keen again charges me with lauding the appropriation of intellectual property. But what's the source for his renewed charge? Did Keen go back to the books? Or back to his notes? Does he offer a quote, or a passage to exemplify this defining feature of my work?

No. The truth of this matter for Keen is resolved by asking a bunch of people at the conference whether in fact I "laud the appropriation of intellectual property." They said I did. And that resolves it for Keen.

Reposted from Boing Boing.

I'm not a fan of Andrew Keen, and Lawrence Lessig is a personal hero of mine. To see this exchange happen brings be great delight. Andrew Keen is a charlatan. Every time he repeats his assertions about the nature of publication on the Internet he assumes that it, like paper publishing, is a one way medium, because that is the one that he is safest in, in a situation in which no-one can challenge him or his arguments. As soon as he finds himself in a situation where someone can question him, he clams up, like in this case. Unfortunately, some people, particularily in the old fashioned one-way press, still regards him as relevant because he confirms the things that they believe. The Independent has given him a platform in which he sees every incident like Wikipedia's squabbles as proof that Teh Internets Am Bad. And funnily enough, he doesn't allow discussion of his articles on the online version. Funny that.

Update on Obama's "Bad Week"

by kos from DailyKOS

Earlier I wrote about Obama's delegate victory this past week despite Clinton's wins last Tuesday. My list was incomplete.

A reader passed on a full list of all the super delegates who announced the last six days their endorsements:

Obama

1. DNC Carol Fowler (SC), 3-4-08


2. Mary Long (GA), 3-4-08


3. Roy LaVerne Brooks (TX), 3-4-08


4. Rhine McLin (OH), 3-5-08


5. DNC Jane Kidd (GA), 3-5-08


6. DNC Darlena Williams-Burnett (IL), 3-5-08


7. DNC Connie Thurman (IN), 3-6-08


8. Rep. Nick Rahall (WV), 3-6-08


9. DNC Teresa Benitez-Thompson (NV), 3-6-08


10. DNC Alexandra Gallardo-Rooker (CA), 3-7-08


11. Rep. Bill Foster (IL), 3-9-08


12. DNC Mary Jo Neville (OH), 3-9-08

Clinton

1. Sen. Barbara Boxer (CA), 3-6-08


2. DNC Mona Mohib (DC), 3-6-08


3. DNC Aleita Huguenin (CA), 3-7-08


4. DNC Mary Lou Winters (LA), 3-8-08

So that's an 8-delegate advantage for Obama.

As for the elections:

Obama  Clinton
OH 66     75
RI 8     13
VT 9      6
TX 99     94
WY 7      5

Total 189    193

That gives Obama a four-delegate victory since last Tuesday. Add the four delegate gain out of California after that state's vote was certified, and we're up to 8 delegates for Obama. Throw in the four delegates Clinton lost in California, and that's 12 delegates for Obama. Today we had DNC member and super delegate Everett Sanders of Mississippi endorsing Obama, so make that 13 delegates for Obama.

So officially, Obama has a 13-delegate advantage for the week even before Mississippi votes tomorrow. Throw in the unpledged delegate in Wyoming who will certainly be an Obama delegate, and unofficially, Obama notched a 14-delegate gain in this "week from hell" for him.

As that reader noted in his email to me:

In the bigger picture, HRC lead in super delegates stood at 97 one month ago today. Today her lead is only 32. HRC has gained 18 Super delegates in the past month while Senator Obama has gained 83.  a month ago nearly 2 out of 3 declared super delegates were Clinton supporters now it is just over one half.

A few more "bad" weeks like this and he'll have the nomination nicely sewed up.

(Delegate information from the 2008 Democratic Convention Watch blog.)

Update: And another +2 for Obama -- he gains Joyce Brayboy of North Carolina, and if Spitzer resigns, she loses his vote. The Lt. Gov. David Patterson is a Clinton person, but he already had a vote as a DNC member. He doesn't get two votes now. So a net loss for Clinton.

Oh, and speaking of Spitzer, Clinton has already scrubbed her website of any Spitzer mentions.

Daily KOS

Obama's "bad" week

by KOS

So CW is that last week was the "week from hell" for Obama, and given that he could've closed this thing out and didn't, we can stipulate that it could've been better.

But let's see just how horrible the week was:

Per Obama's count (if Clinton had a similar count, I'll happily link to it), Obama started last week with 1,203 delegates, Clinton with 1,043. Since then:

Obama  Clinton
OH 66     75
RI 8     13
VT 9      6
TX 99     94
WY 7      5

Total 189    193

So that's a four-delegate gain for Clinton.

But that wasn't all. Obama also picked up three more super delegates last Tuesday -- Texas Democratic Party Vice Chair Roy Laverne Brooks, DNC member Mary Long of Georgia and South Carolina Democratic Party Chair Carol Fowler.

That pegs things at 192-193 for the week.

And then on Saturday, Obama provided material help in Bill Foster's dramatic upset victory in IL-14, filming an ad and sending hundreds of volunteers into the district. The Republicans had John McCain campaign for the Republican candidate, yet still lost proving that Obama 1) is more focused on party building and down-ballot races than the Clinton campaign (where was she?), 2) that he could out-battle McCain in the first proxy battle of the season, and 3) that he's got some serious coattails.

Oh, and Bill Foster is now a super delegate and repaid Obama's largesse by promising him his vote.

So yes, Obama has some serious message issues to deal with and a shaken campaign to right. But where it matters -- in the delegate race -- Obama ended his week from hell TIED with Clinton.

Furthermore, there's an "unpledged" Wyoming delegate still to be decided. He or she will be selected at Wyoming's state convention, and is selected by the elected delegates from Saturday's caucus. In other words, it's going to be another Obama delegate. So unofficially, Obama actually won the delegate race last week.

As Clinton gears up her efforts toward coup by super delegate, threatening civil war within the party, it bears nothing that in her best week of the campaign since her New Hampshire victory, she actually lost ground in the race.

Race tracker wiki: IL-14