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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."
Since almost everyone just settles *cough*extortion*cough*, they rarely have to prove anything.
no evidence ... how interesting. hollow people, hollow lawsuits. finally exposed!
... could'nt he just fucking translate the submission into english before posting ...
"Nul n'est sensé ignorer la loi", but who the fuck he supposed to understand legalese, I wonder.
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?
Is this saying that RIAA sued someone, and the defendant actually fought back with a motion for dismissal? And the RIAA says that they don't actually have the evidence they need to prove anything, but just give them a minute, and they'll scrounge something up? Shouldn't the RIAA have thier evidence BEFORE the trial??
Three days from now?? Thats tomorrow!! ~Peter Griffin
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.
But what does Grok Law have to say about all this?! I'm lost without them.
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.
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
A goal is a dream with a deadline
Not exactly.
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.
The discovery might even entail impounding his entire home, and all his assets for 'review'. A good 'threat' to cause him to settle out of court like everyone else has. Does he have the balls for it? The RIAA has nothing to lose by a war of attrition. He does. ( we all do )
---- Booth was a patriot ----
It also means that their supporting tort wasn't very strong, and might set precedent to require greater revelation in the tort to support their accusation before messing with both the court and the defendent(s).
It's a smelly, scummy sort of ambulance chaser that doesn't have his/her ducks in a row before they baste some poor person in oil and fry them before the bench.
This bodes badly for whatever hacks the RIAA has employed to enforce their ex-foreclosure bar-bells. I doubt they're embarrassed, as it is impossible to embarrass sociopaths.
Now mod me down for troll-- or be enlightened and understand that the poster actually got some most interesting and relevant information: the RIAA's enforcers are starting to sputter.
---- Teach Peace. It's Cheaper Than War.
Before filing the suit, RIAA must have gathered some amount of evidence which led them to believe that the defendant was breaking the law to begin with. However, this could be very little evidence, far less than would actually be needed to prove it in court. This is because once you file a suit, you then get to engage in discovery so as to get sufficient evidence. All you need in order to file, pursuant to Rule 11 is "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."
Having filed, they're entitled to gather evidence more easily, by getting testimony, physical evidence, etc. They generally have a right to gather it for the suit, rather than merely asking for it. Federal civil trials in the US are big on discovery. The idea is that there should be no surprises in court; both sides will have ample opportunity to determine precisely what happened. Hopefully, there won't even be a dispute over the facts, making the trial go faster, and ideally it'll get the parties to settle or the case to get dropped, since court time is a valuable commodity.
In any event, what has happened here is that the defendant has filed for summary judgment to dismiss the case. In a trial, there are questions of fact (e.g. did A stab B?) and questions of law (e.g. is it against the law for A to stab B?). In a summary judgment motion, the moving party is saying that there are no questions of fact which will have any bearing on the case, or some portion thereof. Therefore, the case (or the portion of the case for which summary judgment is sought) can be decided by the judge immediately, based purely on the law and the facts for which there is no question. (e.g. A and B agree that A stabbed B, so accepting that, the only issue is whether it was against the law, not whether it happened)
However, often both sides will dispute whether there are material factual questions remaining or not, that is, whether there are disputed facts where a reasonable jury could go either way, and which are important to the case. For instance, if A says that the knife was a toy knife, and B disagrees, this is likely material. But a dispute over the color of the knife likely is not.
Here, defendant is asking for summary judgment because he says RIAA sued the wrong person, and anyway, he didn't infringe. RIAA is saying that they need to gather more evidence so that they can show it to the judge, show that there are material questions of fact which are in dispute, and that they should go to a jury. In order to do this, they need to engage in discovery to find out some of these facts, since they weren't required to have them prior to filing the suit. N.b. that all RIAA has to do is show that there are still issues that need to go to a jury -- they do not need to show that the jury would find in their favor, or that they'd win the eventual case. Even highly disreputable and unbelievable evidence is sufficient to defeat the motion if a reasonable jury might believe it. In summary judgment matters, the court will look at all the facts in the light most favorable to the non-moving party, who is in this case, RIAA. This is because it's the moving party that wants no trial, and so should be required to prove it. The moving party isn't allowed to use summary judgment as a railroad to get the case dismissed before crucial evidence can be gathered, as that would run contrary to the rules allowing for discovery and setting the low threshold for filing.
Honestly, this is all fairly ordinary stuff. I don't think it's really news.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
When a plaintiff files suit in court, it does not necessarily need to have all of the evidence it needs to win. This is the purpose of the discovery phase of a lawsuit.
If a plaintiff believes it has been wronged but the information necessary to sufficiently prove their case is somehow privileged, there is no way for them to possess that information as evidence without discovery. That's why it's called "discovery". Plaintiffs frequently believe that internal documents or sworn testimony of the defendant will prove their case, but without discovery, they will never be able to read those documents or obtain that testimony.
In this case, the RIAA needs access to defendant's computer to prove its case. It has no such access without a subpoena, which it cannot obtain without a lawsuit. Plaintiff has filed that lawsuit and is now asking the court for permission to obtain the evidence needed to prove it.
I would be very surprised if the court denied their motion.
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.
"Here's what's happening. You're starting to drive like your Dad..." - Red Green
No they're not, only one of those is
The AACS key is NOT 0xF606EEFD628B1CA427BEA93A9CA9773F
He admits himself in his own signature that he's giving out illegal advice. Illegal advice!
"" How about taking the safety labels off everything, and let the stupidity-problem solve itself? """
You are probably correct that the judge will allow this witch hunt to proceed.
What this illustrates is that a law suit can be used to expose someone's trade secrets and confidential work. Suppose Paul Wilke is a programmer and he is working on a secret project that he intends to flog as a product in the not too distant future.
If the RIAA is allowed to go trapsing through his hard drives, then they will find the source code he is working on even if they do not find the copyrighted music they claim might be present. Thus they are breaching the defendant's rights by exposing his copyrights which he has every right to keep confidential.
Once the genie is out of the bottle its out and even though I personally greatly disagree with patents, what this can do is compromise Paul Wilke's ability to patent things in the future.
While the legal system is suppose to honour confidentiality it often does not do so. Lawyers offices are very leaky and generally very insecure.
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I had one lawyer send me his enitre client list. I could have contacted each and every one of them.
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Another lawyer received a confidential tape containing source code for a rather large project which was involved in a litigation. This lawyer agreed to keep the tape confidential. This was an "undertaking".
The next thing the lawyer did was to call up a third party company that does software development in exactly the same area as the project in question - IE - a competitor and a strong one at that. This company was given the tape and asked to read it. They were not told what was on the tape and thought it was data and not source code.
After the company received the tape they handed it to one of their employees who happened to have worked for me on a project a couple years before and she tossed the tape in her napsack and peddled her bike across town and delivered it to me - and I _ALSO_ do software development in this area and thus ALSO am a competitor.
I had the correct operating system which her employer did not have running.
I was also not told what was on the tape.
Over the course of a week I was able to read the tape and lo and behold what came up was all of these copyright notices.
Thus - I was put in the position of seeing unwanted source code which could expose me to a law suit if I were to do anything that happened to fall even remotely in the same area as the source code on the tape. The short of it is that if a programmer even sees someone else's source code they can be sued for copyright infringement just as George Harrison was found guilty of plagerism and copyright infringment on the basis that he might have heard the song "He's So Fine" playing on the radio before he wrote "My Sweet Lord".
Leaky law office! You bet. The answer here is that if you are a programmer then don't let anyone hire you to read a tape and if you are a song writer then you better not listen to the radio or buy any CD's. The world we live in is just aweful in some ways.
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The next example of leaky law offices is that most use windows systems which are not secured and most are too damn cheap to hire a sysadmin let alone a security consultant much less put in a fire wall. Generally they cannot understand why there might be black hat crackers out there, yet most of them take on clientel which would be overjoyed to hire a black hat and certainly do have the motivation to do so.
This is like connecting every keyboard in the world to their computers with no attempt at security. This is like taking their file cabinates full of confidential documentation on the cases undergoing litigation and putting these file cabinates in an open parking lot without so much as using a key to lock them or anyone to guard them. Clearly if the files are accessed they have no idea who might have done it. Of course we all know that in a lot of litigation there is a complete disrespect of the law.
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Th
IANALY.
Summary judgment is appropriate when there is (to quote nearly every summary judgment motion and order ever drafted) "no material fact in dispute." It's slightly different from a demurrer or, in modern parlance, motion to dismiss (typically called a "12(b)(6)" because of the Federal Rule of Civil Procedure by that number which provides for it), which is where every fact in the plaintiff's complaint is assumed to be true and still does not state a cause of action upon which relief can be granted.
In summary judgment, the court can look at affidavits filed by the parties, deposition testimony, interrogatories, and other evidence made available to it through the discovery process and determine whether any material fact is in dispute. A material fact is one that changes the outcome of the matter. For instance, the parties in a libel case may dispute whether the remark was printed in the New York Times or in New Yorker Magazine, but if all the evidence available shows that there is no dispute as to the truth of the remark, then where it printed is immaterial to the case. You can't just go claiming that there are disputed facts unless those disputed facts matter.
Summary judgment can, interestingly, be granted to either party in a lawsuit. The plaintiff can get summary judgment, too, although it is less common to see that happen. (Defense lawyers are paid to find material facts in dispute.)
Another note: the reason that summary judgment works is because judges make decisions of law and juries make decisions of fact. If there is no material fact in dispute, then there is no reason to bring a jury in to make factual decisions. The same thing can happen with stipulated facts (which happens a lot in business law cases, such as in bankruptcy court) - the parties agree on the facts but disagree on the law, and a judge makes a decision for them.
I hope that helps. As to the present case, it appears that the RIAA may have sat on its laurels waiting for the defendant to settle under an assumption that he would, and then were surprised by a motion for summary judgment. You don't need expedited discovery to beat an MSJ. What you do need is a diligent attorney who did discovery early and often rather than only at the last minute. There was nothing stopping the RIAA from taking depositions and sending interrogatories and requests for production to the plaintiff starting on the day that they filed suit. The fact that they didn't do that falls under the ODF rule - it's their own damn fault.
As to the present case, it appears that the RIAA may have sat on its laurels waiting for the defendant to settle under an assumption that he would, and then were surprised by a motion for summary judgment.
It's also possible the MSJ was filed right after the complaint and so there wasn't time for the RIAA to do discovery (I had this happen during my clerkship this summer). Rule 56 requires that ample time for discovery be given.
Why have 1 person driving a backhoe when you could employ 20 with shovels?