RIAA Says It Doesn't Have Enough Evidence

NewYorkCountryLawyer writes "In Elektra v. Wilke, the Chicago RIAA case in which defendant Paul Wilke has moved for summary judgment, the RIAA has responded to the summary judgment motion by filing a motion for 'expedited discovery', alleging that it needs expedited pretrial discovery because it does not have sufficient evidence to withstand Mr. Wilke's motion. The RIAA's lawyer said: 'Plaintiffs cannot at this time, without an opportunity for full discovery present by affidavit facts essential to justify their opposition to Defendant's motion.' The motion and supporting affidavit are available online."

Comments

Re:Since submitter is a lawyer ...

[anonieuweling]

If defender wins, how can he get back at RIAA for a 'false' suit?

Is this stuff actually legal?

[Inominate]

Is this kind of stuff actually legal? The RIAA seems to like to do it, as SCO also did. Is it common to go into civil cases like this?

"We can't make a case against you, so you're going to have to do it for us."

What? Huh?

Re:Is this stuff actually legal?

[boombaard]

hm.. most interesting, in a way.. could you also claim the right to look at all the RIAA's communication with the parent companies to see if there's a conspiracy going on to say, bash the poor consumers into submission? or would that be "unreasonable"?

Atempt to translate and possible answer to RIAA

[hugetoon]

Let's try to translate:

RIAA: Hey yr honor, this dude stole my stuf, i know 'cause a guy i pay to hang on the net told me so!

DUDE: Nope, i didn't.

RIAA: Sure, they all claim the same, and actually by now i've got no evidence, but if you let me go his home and
put everything upside-down i bet my "experts" will find something!

Well, i hope this is not the way the USA justice works.

And if i were Defendant i'd ask RIAA in return (and before giving anything to them) to let me do forensics on computer their investigators used to identify my IP and computers they used to exchange mails and every other piece of equipement i could think off (like routers of their ISP). And it'd
take me 10 years or so, and of course at the expense or RIAA (i mean, forensics is a hard work, i intend to get payd for it) if i figure that they made a mistake.

Re:Atempt to translate and possible answer to RIAA

[CrankyOldBastard]

I'm not in the US illegally, and fail to see why anyone would want to be.

I was actually thinking of a situation where I could be in the USA working as a consultant (as I have before), and the RIAA decide they want me after I login to the Internet using the laptop I use back here at home. Or to look about more widely, at a situation like Dmitri Skylarov faced when in the USA with a perfectly valid visa.

Besides, your jails are not so nice. We know that your prisoners at Guantanamo Bay arn't treated "cushy" (4 months of solitary confinement without charges or trial for example) with "cable TV". I doubt anyone else from Australia wants to join David Hicks in your jails. In our gaols prisoners have the rights we are obligated to give them under our International Agreements.

This is the way the system works

[BGraves]

The US has liberal pleading rules, and as such, has wide discovery as well. This is good when a small person tries to sue a large company. Say a company is dumping chemicals into your water, and your kid gets cancer. There is no way the company is going to give you the evidence you need to get a civil verdict. That is why you can file a claim with little to no evidence, and then through discovery, the court can force the company to provide you with types and quantities of what they are dumping into the water. If they refuse, they can be brought up on criminal charges. Rule 11 in the federal laws of civil procedures is designed to prevent lawyers from filing civil suits just to get discovery priviliges. If I was the gentleman in question, I would ask my lawyer to evaluate a Rule 11 charge in addition to the summary ruling. I am reading the rule right now, and a judge could impose on the party involved monetary penalties that would prevent the conduct in the future. I don't see that happening, but even if the judge just fined the law firm representing the RIAA, it would make them less likely to help the RIAA in the future.

So...to continue the train of thought we all have

[StressGuy]

It kinda looks like we all see it the same way, i.e. - this guy just "called the RIAA's bluff".

So, now the RIAA wants permission to search for the evidence the clearly never had in the first place. Alright, my question is, can this guy go back to the judge with "Given that I was summoned to appear here on the pretext of compelling evidence that we now know the RIAA does not posses, and given that I am not prepared to waive my right to a speedy trial while they are given additional time to find this evidence, can we just dismiss this and all go home?"

Also, can I counter-sue for lost time, lost wages, added stress, etc.?

but, of course, IANAL (besides being ANAL, I'm not a lawyer either ;))

Very Funny

[beadfulthings]

I notice in reading the .pdf version of the motion that the RIAA lawyers didn't even have the man's name right in their initial filing of the lawsuit. His own attorney had to straighten that out. I'm glad Mr. Wilke's pockets are deep enough that he can afford astute legal counsel who knows how to handle a fight like this. I suspect that's not the case for the single mothers, recently-bereaved orphans, and elderly grandparents who are the RIAA's usual prey.

It's disconcerting to think they can sue when they have no real evidence that they've been injured. I suspect they do this more often than not. Let's hope this motion succeeds and that other defendants and lawyers take note of it.

Re:So in English . .

[BVis]

So all you need is an accusation? Then why couldn't companies just keep accusing people over and over just by making things up and bankrupt them, what's to protect people from that?

Nothing. Nothing at all. This is exactly how the RIAA/MPAA are operating. It doesn't matter that the law regarding P2P file sharing isn't black and white (as of yet, they've got lots of lobbyists trying to change that.) Whether you've actually committed the acts you're accused of is irrelevant - they say you have, they're suing you, and they're counting on you not being able to defend yourself, and thus paying out a settlement.

This particular phenomenon is the biggest argument for tort reform in recent memory. The American legal system is set up in such a way that, if you are sued, you are financially penalized win or lose. In other jurisdictions (I'm thinking of the UK in particular) the plaintiff is obligated to pay for the defendant's legal fees if the plaintiff loses the suit. This has the effect of curtailing suits that are filed simply to harass defendants, or to promote failing business models as the only choice available to the consumer, lest they be bankrupted in court.

Re:Since submitter is a lawyer ...

[montyzooooma]

Theoretically how valid would it be to run a Linux Live CD when you want to P2P then copy the downloaded files to Flash drive? Or just use the Flash drive as the storage drive I suppose. You'd be limited to the size of file you could download so not much use for DVD isos but you get the idea. Feasible? I'm presuming your PC when booted normally wouldn't show any traces of the P2P activity while still looking like an un-tampered with everyday PC. Or even simpler could you just use a second PC on your network or through Internet Connection Sharing?

Re:Evidence

[tinkerghost]

They have enough evidence to start proceedings, but not enough to prove guilt. So they ask for more with the discovery. This is also seen in other types of cases, so its not unheard of.

That's not the issue here. You can start proceedings by going to the courthouse & filing a document stating your belief that so-and-so did such-and-such and you seek redress through the courts. It costs about $135 here in MA IIRC. That's it, no proof, not 3rd party documentation, just a form passed in with a sheet of blue paper attached - and $135 in cash.
That's what preliminary sumary judgements are about. Does the plantif have enough evidence to make this worth going forward into discovery. In this case, the RIAA is saying, 'we gots nothing, but if we rummage around enough in his life we're certain we'll find it.' Reality should intrude on the RIAA & say 'come back when you can prove we should let you look into his life', but that's not nescesarrily what will happen. Some Judges bend over backwards to try and appear fair to both sides - meaning they at least let everyone put their cards on the table before throwing things out.