Why the RIAA Doesn't Want Defendants Exonerated

RageAgainsttheBears writes "The RIAA is beginning to find itself in an awkward position. A few of its many, many lawsuits don't manage to end in success for the organization. Typically, when they decide a case isn't worth pursuing (due to targeting the wrong person or not having sufficient evidence), they simply move to drop the case. Counterclaims are usually dropped in turn, and everyone goes separate ways. But recently, judges have been deciding to allow the RIAA to drop the case, but still allowing the defendant's counterclaim through. According to the Ars Technica article: 'If Judge Miles-LaGrange issues a ruling exonerating Tallie Stubbs of infringement, it would be a worrisome trend for the RIAA. The music industry has become accustomed to having its way with those it accuses of file-sharing, quietly dropping cases it believes it can't win. It looks as though the courts may be ready to stop the record labels from just walking away from litigation when it doesn't like the direction it is taking and give defendants justice by fully exonerating them of any wrongdoing.'"

Comments

RIAA SUCKS MY FUCKING COCK

[Anonymous Coward]

fucking extortionists

Re:RIAA SUCKS MY FUCKING COCK

[DuroSoft]

mod parent up

Re:RIAA SUCKS MY FUCKING COCK

[Anonymous Coward]

you're witnessing censorship progress. you have freedom of speech as long as you word it carefully... beautiful, huh?

note sarcasm

Re:RIAA SUCKS MY FUCKING COCK

[Anonymous Coward]

WTF??

Re:RIAA SUCKS MY FUCKING COCK

[Alioth]

The RIAA aren't issuing any lawsuits.

Question - the lawsuit against the 7 year old girl, is it:

A. RIAA -v- Andersen
or
B. Atlantic Records -v- Andersen

I think you'll find the latter. The record companies themselves are doing the suing. If you want to hate someone for spamming the courts with lawsuits, hate the record companies themselves. They love it that the RIAA is catching all the shit (because the RIAA doesn't sell to the public so it doesn't matter if the RIAA has a horrible reputation amongst the public). However, if people understand that the record companies are the ones spamming the courts, maybe the right people will be the object of vilification.

Re:RIAA SUCKS MY FUCKING COCK

[Anonymous Coward]

Has there been any good news from the RIAA with in the last 10 years? Seems like every time they are mentioned in an article, it is a new lawsuit where they are sueing more people over copyright infrigments.

Honestly, I wonder if it might be possible to sue them on grounds of sticking their heads in the sand (or up their ass if you like). They seem to have found a medium (CD/tapes [i think they still exsist]) that provided them the ability to ignore the technological advances. And rather than try and update their medium (albeit very difficult to do), they find it more "logical" to sue some random person over not paying them for the right to listen to a song.

When did the world stop thinking logically?

Re:RIAA SUCKS MY FUCKING COCK

[kalirion]

So that makes you pro-RIAA, right? Bastard.

Re:RIAA SUCKS MY FUCKING COCK

[Headcase88]

Clearly in this case you can say whatever you want, and /.ers will listen. It's up to these same people to judge the value of your comments. You can't force someone to think your comment is great and call it "censorship" if they don't.

But really, the claim that RIAA sucks your cock, that's a well thought out and insightful post that really brought a lot into the conversation. Really made me think deeply about the whole situation and brought up a plethora of new questions. For example, did RIAA spit or swallow? And how often do they suck it? Daily? Hourly? Clearly these questions have no clear answers and must be discussed at full length. And the fact that they're extortionists, really brings up a point that hasn't been brought up in /. ever before. You really went against the grain by calling RIAA bad. Take that, censors!

Hey mods: I hate Microsoft and fucked its mother. Mod me up before or the censors win.

About time

[GiovanniZero]

Our court system should punish frivolous lawsuits for how much it is costing the government.

Re:About time

[AusIV]

Our court system should punish frivolous lawsuits for how much it is costing the government.

Not just for how much it's costing the government, but for how much it's costing innocent defendants. I think any time the RIAA loses a case or drops a case they should have to pay legal fees for the defendants. I think you'd see a sharp drop in frivolous suits. They may still take a few cases to court, but they'll spend more time making sure the accused are actually guilty.

Re:About time

[Anonymous Coward]

It's not costing the government anything. The government gets all of its funding from the taxpayers. They're (we're) the ones paying.

So they (we) should obviously boycott industry associations that resort to this sort of legal chicanery. I hear there are some great bands playing live down at the local pub...

Re:About time

[geekoid]

"... making sure the accused are actually guilty."

I hope you mean:
making sure the accused can't defend their innocence against the charges."

Nobody is actually guilt of anything until the courts say so. A fine, yet critical line.

Re:About time

[jovetoo]

Exactly. I believe one of the other cases mentioned a number on the attorney fees, something around US$6800. That would require two out of three accused to settle (at US$3750) just to cover the cost of loosing one. This does not cover their own costs.
I wonder how many of the accused would still choose to settle... even if they are guilty.

Re:About time

[geekoid]

Assuming you can tell the difference between 'frivolous' and just 'wrong'.

Lets say I believe you have done me harm, and sue you.
It turns out that, in fact, it wasn't you.
Then I wouldn't call that frivolous.

Re:About time

[Anonymous Coward]

It's not costing us anything. We get all of our funding from our employers. They're (they're) the ones paying.

Some of us (us) work for the RIAA and affiliated companies. We (them)(us) are being paid (our funding) by those (the RIAA) who are costing us money (our funding). It follows that the RIAA is the ultimate victim of the RIAA. Thus, we (they)(the RIAA) should boycott the real criminals (us)(the RIAA).

Re:About time

[honkycat]

Ideally, the accuser would make sure the accused was actually guilty before accusing. Nobody is legally guilty until the courts say so, but actual guilt has nothing to do with legal guilt (except, perhaps, that it's easier to find someone legally guilty if they're actually guilty).

Re:About time

[monkey_dongle]

Actually, this has nothing to do with guilt or innocence. These are civil lawsuits, not criminal, and as such the only thing to be determined is liability.

Re:About time

[renegadesx]

Its called Karma, thats right Mr RIAA, take it all, you like that dont ya bitch

Re:About time

[svvampy]

I would call it frivolous if the reasons I had for believing you have done me harm are obviously flimsy and constitute a gross lack of due diligence.

Re:About time

[nugneant]

Your logic leads me to believe you are either Chico Marx or John Dvorak. I don't know whether to therefore mod you up or down.

Re:About time

[AK Marc]

You do not understand the words. If I kill someone, I am guilty of homicide. If I am linked to the act, I am charged or indicted. The outcome of the trial is that I am found guilty or not guilty. Being found guilty does not mean I killed someone. It means that I have been found guilty of the crime by a jury of my peers. If I am found not guilty, that does not mean I did not commit the crime. I could be guilty and be found not guilty because of the inability to produce credible evidence. And "innocent" has no legal meaning, though it is often used in place of "not guilty." Innocent means one did not do what they are accused of. That is a state of being that is irrelevant to the finding of the court.

There are common usages of the words and legal definitions of the words. If you are going to complain about someone's usage, you should at least differentiate between them.

Re:About time

[DustyShadow]

First of all, the word "guilty" doesn't really exist in the civil arena. Liable is a better word. As for making sure the defendant is liable, there are many times when the plaintiff doesn't really know for sure and the only true way is through discovery. Most defendants won't hand over their private evidence until they are demanded to do so by a court. Yea, sometimes this forces an "innocent" defendant to be brought into court but in the end justice is served when the truth comes out. Unfortunately a lot of money is spent to get to that point.

Re:About time

[honkycat]

Well, I wasn't really talking about this specific situation so much as responding to the parent's reference to actual guilt. Even in the civil arena, though, guilt exists as a concept, but the language is different. If you've broken the law (you filthy tortfeasor), you're actually guilty (of the tort) and may be found legally liable.

Still, I stand by the modified statement: Ideally, the accuser wouldn't accuse unless the accused were actually liable. Obviously, we can't achieve the ideal because, as you say, the full evidence may not be available until the process is begun. Still, litigants should have a pretty high degree of good faith belief that they are suing the right person before they initiate an action. It's often the case (or, more precisely, it seems often given the biased cross section presented on slashdot or on the news) that a wronged party takes the position that they're entitled to relief from somebody so they just go after someone who they think they can recover from. That covers **AA type lawsuits as well as a lot of others... If you're suing the wrong party more than very occasionally, odds are good that you're abusing the system.

Re:About time

[csplinter]

I don't know about in other States but, in Texas and Florida in a criminal case, you can be judged guilty (they decided you did it) not guilty (they decided they don't know if you did it) or innocent (they decided you didn't do it). You are judged innocent if everyone unanimously agrees that you did not commit the crime you were accused of.

Re:About time

[csplinter]

Wrong it's (it is) costing (paying) them (us)(him) plenty (lots). They (the RIAA (Record Industry Association of America)) (you) are paving (setting precedent)) the way for more and more (not less) (frivolous (unfounded) lawsuits) (civil cases) against other (not the same) victims (us). We (them) shouldn't (should not) (stand) idly (by while our freedoms (rights)) are eroded (washed) away(. I for one am sick) (don't (do not) like it) and tired of (their ridiculousness (it's (it is)ridiculous)). (We )(((you) (I)) need (to) take (a)) ((((stand.))))

Re:About time

[Anonymous Coward]

Not just for how much it's costing the government, but for how much it's costing innocent defendants.

These are 'civil' cases. People are only 'guilty' in criminal cases.

Re:About time

[BlueTrin]

Actually it's not only about money, it should be about the total time lost between jury and time taken from the judges who cannot work on more important matters.

The RIAA is not really trying to do a preliminary study before to sue ...

Re:About time

[heroofhyr]

ok, you Lisp nerds are hereby officially banned from posting any more comments to Slashdot.

Re:About time

[jimicus]

I would call it frivolous if the reasons I had for believing you have done me harm are obviously flimsy and constitute a gross lack of due diligence.

OK, let's break this down.

I say you've done me harm. Sort it out or I'll sue you.

You say "No you haven't. Prove it. I'll see you in court."

So I take you to court. Note that at this stage, while I've got a good idea you've done me harm, I have very little in the way of hard evidence.

I get a number of pieces of evidence under subpoena, and the conclusion from looking at that evidence is actually, I was wrong. It wasn't you who did me harm. So I drop the case. But there's no way I could have known that without the evidence I acquired through subpoena. AFAICT, the reason you find the lawsuit frivolous is it's cost you a lot of time and money to comply with the courts orders and you don't see why you should have to pay it. A blanket rule like "person who drops the case pays all costs" is going to put off anyone who can't afford to take that risk - mainly individuals who really need the protection of the courts.

What the courts appear to be doing right now is saying "Fine, you can drop the case. But the defendants counterclaim for the time and trouble you've caused them stands" on a case-by-case basis. Which seems eminently reasonable to me and I really can't think of a better alternative that could easily be enshrined in law.

Disclaimer: IANAL. I'm not even in the US.

Re:About time

[Ignatius]

IANAL, but as far as I know, this is the case almost anywhere in Europe. At least here in Austria AFAIK, in a civil court, the loser pays the costs of the trial as well the attorney fees for the other party. All fees are tightly regulated and generally depend on the amount in dispute, so you cannot be ruined by legal fees alone in small cases even when you lose. Also, practices like "success premiums" (where e.g. the plaintif's lawyer would get some share of the amends or settlement sums) are illegal.

Re:About time

[voice_of_all_reason]

Most defendants won't hand over their private evidence until they are demanded to do so by a court

Funny, I always thought the burden was on the prosecutor/plaintiff to prove YOU were guilty/liable. As long as I'm sure I didn't do it (and reasonably confident), can't I just sit in the courtroom and doodle all day?

Re:About time

[jimmyfergus]

Nobody is actually guilt of anything until the courts say so.

DO you think nothing exists unless the courts say so? It's only legal guilt that is decided by the courts. I am guilty of speeding on the way to work today - though I wasn't caught or charged so I will not be found guilty under law. I am also guilty of taking more than my share of a chocolate bar last night - I don't think the courts are interested in that case at all.

People are so used to the legal system and bureaucracy that they lose sight of real meaning. For immigration reasons it was against our interest to register our marriage on the day we had our ceremony - instead, we had a cursory ceremony a few weeks later for legal purposes. Which date were we married on? Some people assert it was the later date, as that was the legal wedding - I say that's nonsense. We were married when we made the vows to each other witnessed by all our closest family and friends. The marriage just wasn't recognized in law, that doesn't mean it didn't exist, it just means we couldn't claim any of the rights, responsibilities or benefits a marriage gave us under law.

Re:About time

[dcgator]

Actually, I don't think your understand the words "criminal" and "civil." There is no such thing as guilt or innocence in civil lawsuits: only "liable" or "not liable," which is what the parent was talking about.

You both are correct, but you're arguing different things. :)

Re:About time

[Anonymous Coward]

> ... I think any time the RIAA loses a case or drops a case they should have to pay legal fees for the defendants. I think you'd see a sharp drop in frivolous suits. ...

I think the same thing with medical malpractice. The physician's insurance ends up paying for the defense, regardless of who prevails.

Re:About time

[danpsmith]

It's not costing us anything. We get all of our funding from our employers. They're (they're) the ones paying.

Some of us (us) work for the RIAA and affiliated companies. We (them)(us) are being paid (our funding) by those (the RIAA) who are costing us money (our funding). It follows that the RIAA is the ultimate victim of the RIAA. Thus, we (they)(the RIAA) should boycott the real criminals (us)(the RIAA).

Who are you that's so wise in the ways of science?

Re:About time

[Anonymous Coward]

Definitely. Real programmers don't use LISP. Only effeminate programmers use more parentheses than actual code.

Re:About time

[Mattintosh]

Better yet, the court system should adopt a policy that says the initiator (the plaintiff) of the suit has to pay the legal fees for both parties until a decision is reached, then the loser must pay (if the loser is a defendant, they would make reparations, if the loser is the plaintiff, then they can just go home having already paid all the fees anyway).

It's not perfect, but it's better than what exists now. (The main drawback is that a poor plaintiff may not be able to finance a lawsuit, even when they've been wronged.) But at least it would stop the abusive crap the record companies are doing now.

Re:About time

[TheRealSCSIMan]

"Nobody is actually guilt of anything until the courts say so."

I hate to pick nits here, but it's really an important point. The word "until" should actually be "unless" in the above quote. "Until" implies that guilt is already determined and one need merely wait for time to pass to have that declared. "Unless" leaves the question of guilt undecided, which *should* be the case in our system of jurisprudence.

Forgive me. IAL

Re:About time

[GWBasic]

Not just for how much it's costing the government, but for how much it's costing innocent defendants. I think any time the RIAA loses a case or drops a case they should have to pay legal fees for the defendants. I think you'd see a sharp drop in frivolous suits. They may still take a few cases to court, but they'll spend more time making sure the accused are actually guilty.

IANAL, but I've actually sat and read US Copyright law. There's provisions in US Copyright law that allow the wrongly accused to seek compensation. I was quite surprised when I read that section!

On a side note, US Copyright law has a funny section that prohibits radios that can be programmed to change their station by a central source, and it makes playing an entire album on the radio illegal. It seems that someone was afraid that there would be a version of Napster that would work over the airwaves!

Re:About time

[AusIV]

The problem I have with that is that it would be even more prohibitive of individuals suing large entities. I would assume there'd have to be some flat rate, otherwise a corporation would say "We've had a legal team of fifty lawyers working around the clock on this case, you owe us $2.2 million dollars, which will be reimbursed if you win your case."

Re:About time

[AusIV]

Nobody is actually guilt of anything until the courts say so.

Nobody is legally guilty of anything until a court says so. My point was that if they had to pay legal fees for everyone they dropped a case or lost against, they'd make damn sure they have a legitimate case that they have a good probability of winning.

Cross your fingers.

[AlphaLop]

Lets hope that the trend continues. I think the RIAA publicized their lawsuits so much (in an effort to scare "Pirates") that even the judges are aware of their shady tactics, and resent the RIAA for attempting to turn the court system into their own private extortionists.

Re:Cross your fingers.

[solevita]

even the judges

Even the judges? Are you suggesting that the good people of Slashdot know the inner workings of court better than the judges that preside over them? Seems unlikely to me.

I'd be more inclined to believe that judges have long known that the RIAA are a bunch of bastards and are now acting in a manner that respects the general population's regard of the RIAA as a bunch of bastards.

Re:Cross your fingers.

[Wes Janson]

All judges do not share knowledge from a common pool. They are not the Borg. Grandparent was trying to say that this might be a sign that the negative publicity is such that even judges who might not have otherwise known about the tactics of the RIAA, are aware of them now and are responding accordingly in their courtrooms.

Re:Cross your fingers.

[Deliveranc3]

Agreed, though why it has taken so long is subject to inquiry.

I think the Conservatives under Bush have made a brutal attack on the court system and Judges have found themselves serving two masters (The public interest and the White House).

An interesting thing to consider about the legal system is that almost all court cases are trying to define "fair" or "equal" as benefits their client, piracy can't claim that it is directly fair.

The arguement for piracy is that information can be shared without loss and that it's beneficial to do so and errode the attempt at defining some information as more valuable than other information (largely though marketting).

While I do think the Judges have taken their time (obviously these are not young people) learning about this civil rights position and accepting it to the point where they have decided to violate the letter of the law to promote a more equal society.

The fact that these decisions put their heads on the Bush chopping block means that they haven't been undertaken lightly and these people should have our respect.

Re:Cross your fingers.

[jimicus]

All judges do not share knowledge from a common pool. They are not the Borg.

While this is true, I'm sure they talk to each other. And once over, the cases become part of public record.

Sooner or later, even the most out of touch judge is going to notice a pattern in the number of cases being brought up by a single organisation.

Re:Cross your fingers.

[jvkjvk]

So you are imputing that the judges follow public opinion instead of the Law? After all, they know (knew) they were frivolous and reprehensible attempts to extort money but used to go along with it because the public didn't know.

Now, suddenly, since the public seems aware that this is wrong, now they change their rulings (if not their opinions)?

Hmm. Seems either judges are slack bastards who just care about their own power privileges or are beholden to public opinion instead of the law.

Something seems messed up in your argument.

Class Action

[jmkaza]

IANAL, but it seems that if the court rules in favor of any one of the defendants, it would set a precedent that would pave the route for all previous defendants to come together and file a class action lawsuit for wrongful accusations.

Re:Class Action

[Anonymous Coward]

In this case, the defendant is innocent. There's no "precedent" here that's going to help 99.99% of the rest of the defendants, which is why they're mostly pursuing novel legal strategies like "You can't sue me, I'm a single mother!"

Re:Class Action

[Dhalka226]

I am not a lawyer either, but I do not think you are correct.

if the court rules in favor of any one of the defendants, it would set a precedent

It really wouldn't set much of anything. Technically speaking it would set a precedent for that exact federal district that it was decided in, but the precedent is only binding where circumstances are essentially identical, as determined by the judge. Since circumstances in these cases are quite likely to change, the precedent wouldn't really matter.

all previous defendants to come together and file a class action lawsuit

One required feature of a class-action lawsuit is similarly of circumstances. If a product is defective, anybody who bought the product would be in the same class. The mere act of purchasing the product gives them the same circumstances, and it can be a class action in that sense.

Here, "I got sued by the RIAA" is almost certainly not enough to constitute a class. Circumstances are going to vary. The assumption that people are innocent and accused falsely is something that would need to be decided individually; the judge would almost certainly not paint every case with the same brush. Accordingly, a judge would almost certainly not permit the cases as a class.

a class action lawsuit for wrongful accusations.

I don't believe "wrongful accusations" is an actionable offense, except maybe in an attempt to recover attorneys fees (which would once again vary by respondent). Libel, perhaps, but that case would probably get tossed. They could claim the lawsuit is frivolous, but 1) I don't believe that entitles the person the suit was brought against to money (rather, it would result in a sanction against the attorney who brought it) and 2) it is seldom used.

All in all I hope the RIAA gets slapped around by judges at every turn, but I don't think it means a lot in the legal scheme of things.

Re:Class Action

[kastababy]

I think a class action lawsuit is exactly the remedy that needs to happen. Being in law school currently, I see case after case after case of Big Business trampling over the rights of someone who, whether through unintentional ignorance or deliberate flaunting of the laws, either download music or share files or whatever. Think of what would have happened if the RIAA had sued everyone and forced everyone to pay fines for copying cassette tapes and recording songs off the radio (a practice I still do from time to time just to create my own personal mixes). They would still be in the same boat, but they would be paying more money to settle all the lawsuits that would have been filed in the 1980's for the same thing. There are some bigger questions that still remain that the law has yet to answer: If I rip all my CDs to my laptop so I don't have to carry a huge case around, am I still guilty of copyright infringement if I decide to transfer those files to a new computer? What if I took the same computer and gave it as a gift (hereby invoking contract law) to my mother who happens to be less computer-literate than I am? If she then sends a song via email to her mother, who can't even comprehend the term file-sharing, much less particpate in it, is she then guilty of the same thing? In all these cases, the RIAA seems to think so. At the end of the day, the RIAA is just mad because they didn't plan far enough ahead to see the coming storm and make their money off it to begin with. Had the RIAA jumped on the Napster, iTunes, Grokster, Morpheus, et al. bandwagon from jump, we would not be seeing any of this in the news. A major class action lawsuit for slander, libel, and defamation of character against the RIAA by every person that has been sued by them would go a long way toward making the RIAA think twice before pursuing another lawsuit against someone's grandmother or someone's 6th grader and holding the parents responsible. Maybe a mass exoneration (aka amnesty) would be just what we need to get the RIAA off our backs. Go deal with all the folks in China pirating the music and REALLY ripping you off instead of someone playing with a computer -- that would have bigger economic impact for all the recording artists here and anyone else associated with the industry!!

Re:Class Action

[TubeSteak]

Here, "I got sued by the RIAA" is almost certainly not enough to constitute a class. Circumstances are going to vary.

The RIAA & MPAA are both using cookie cutter legal letters & 'research' to propogate their claims.

Circumstances are almost exactly the same for everyone they've sued.

Trial by television

[athloi]

And the RIAA was getting such great negative press/FUD for those accused of the evil crime of piracy. From the RIAA's perspective, it's a shame they don't do public floggings anymore. The real reason you don't get caught by the RIAA is the damage they'll do to your professional reputation, Lexis/Nexis file and possible, Google results.

This is not a stable state of affairs

[91degrees]

After a while it will become sufficiently clear that the record industry is not willing to take anyone to court, that eventually enough people will end up challenging as to make this a prohibitively costly excercise. If they drop enough cases, there will probabyl be a few lawyers who will take virtually any case on, on the assumption that they will be able to claim their fees. Either the RIAA will stop doing this, or they will actually start to see a case through. At the moment though, getting a lawyer and challenging the evidence (which is pretty weak, consisting of an IP address, and a list of files that may or may not be what they claim) seems to be a pretty safe option.

Missing The Point

[asphaltjesus]

The RIAA doesn't care if a few individuals keep them in court for whatever liability they open themselves up to.

Individuals won't have enough money to diminish the environment of fear the RIAA is trying to establish.

The goal is to establish an environment of fear, such that most users are afraid to anything other than what the media conglomerates say is okay. Better still, what's okay today can be wrong tomorrow.

The RIAA end game is good. Stories like this just help it along.

Re:Missing The Point

[AusIV]

The RIAA end game is good. Stories like this just help it along.

Not really. The RIAA would certainly like to create an environment of fear, however if they lose cases and have to pay the defendants legal fees, more people will be willing to go to court. They can only maintain their environment of fear if they're winning their cases or getting settlements.

Re:Missing The Point

[garcia]

They can only maintain their environment of fear if they're winning their cases or getting settlements.

That's where you're wrong. They can only maintain the environment of fear if the media conglomerates they pay publish the information they want rather than the "little guy hero" stories that have been showing up here lately.

Re:Missing The Point

[MathFox]

Not really. The RIAA would certainly like to create an environment of fear, however if they lose cases and have to pay the defendants legal fees, more people will be willing to go to court. They can only maintain their environment of fear if they're winning their cases or getting settlements.

Don't forget that a lawsuit costs the RIAA money (in lawyers fees). They can only recoup the costs when they win their cases. Every dropped lawsuit is a loss for the RIAA; double the loss if they have to pay the defendent's lawyer too.

Slashdot and Groklaw analyses of RIAA "evidence" showed significant holes. It is unclear how much relevance the MediaSentry logs have, there are issues with time-stamping and dynamic IP addresses, shared (WiFi) networking, decoy mp3 files and last but not least no proof that the subscriber to the IP package was the one operating the sharing computer. The RIAA seems to ignore the possibility of remote control of a system. With so many holes in the evidence even the guilty can get out.

Re:Missing The Point

[geekoid]

"An individual doesn't, Individuals do."

Re:Missing The Point

[abb3w]

The RIAA doesn't care if a few individuals keep them in court for whatever liability they open themselves up to.

Can you say "precedent," childen? Any first year law student can....

Re:Missing The Point

[gillbates]

The goal is to establish an environment of fear, such that most users are afraid to anything other than what the media conglomerates say is okay.

And that, I believe, is the problem. I can no longer buy RIAA-parent-company DVDs and CDs in good conscience, because I know a portion of the proceeds will be used for suing women and children. And I think the impressions being formed are overwhelmingly negative. Where are the college students protesting, "Save the RIAA!"? Teenagers and college students are starting to believe that buying CDs will only fund lawsuits against the defenseless and poor.

I understand their position regarding copyright infringement. But it is infringement, not theft, and certainly not murder on the high seas. Their strong-arm tactics make the entire industry look bad, and call into question the legitimacy of their cause. When such an entity chooses to pursue lawsuits on such frivolous evidence, one can only conclude that the real goal is not justice but merely the acquisition of additional wealth. First, they steal from the artist through oppressive and one-sided contracts, and now they are trying to extort money from those whom they believe will not have the resources to resist. When was the last time the RIAA filed a lawsuit against a millionaire?

It just makes me sick. And the artists, of all people, stand to lose the most. Instead of buying from big labels, I've begun looking at the smaller, independent artists precisely because of the RIAA tactics.

I wonder if they even considered the fact that dropping CD sales might be related to people unhappy with the fact that they are suing their customers. Unhappy customers tend not to be repeat buyers.

Re:Missing The Point

[blind biker]

Reminds me of the theme in "A bug's life"; the grasshoppers had power over the ants, as long as each one of them feared the consequences of their insubordination. But once the ants figured out they outnumber the grasshoppers by thousands to one, the game was over.

Sorry that my reference is to a cartoon.

Re:Missing The Point

[Anonymous Coward]

That is SO fucking deep and poetic, man!!

Seriously, all the movies and books out there with this same theme, and you choose A Bug's fucking Life? Go back to digg with all the other high-schoolers.

Re:Missing The Point

[AusIV]

They can only maintain the environment of fear if the media conglomerates they pay publish the information they want rather than the "little guy hero" stories that have been showing up here lately.

Not really. It may generate enough fear to prevent people from file sharing, but I'd hope someone would spend a couple hundred on a lawyer consultation before settling for several thousand. A lawyer (at least a half decent one) is going to research actual case records, rather than listening to the media conglomerates. Media conglomerates may get them somewhere towards preventing file sharing, but it's not going to get them too far when it comes to actual suits.

Re:Missing The Point

[W. Justice Black]

Ditto. I haven't purchased a non-indy CD or DVD in three years now as a result of the *AA's inane stunts. I suggest that others do the same.

Or if you can't get rid of your addiction entirely, at least send a buck or two per disc purchased to the EFF or similar.

Tell a friend.

Re:Missing The Point

[MoreDruid]

The goal is to establish an environment of fear, such that most users are afraid to anything other than what the media conglomerates say is okay. Better still, what's okay today can be wrong tomorrow. (emphasis mine)

hmmm sounds awfully like what terrorists want to achieve. Only in this case Corporate America is behind it. So why exactly is this tolerated by the courts while some poor guy who just looks "wrong" will be harassed by various agencies?

Re:Missing The Point

[muuh-gnu]

> because I know a portion of the proceeds will be used for suing women and children

And if it were only your fellow males, who get inanely sued for sharing, you wouldn't consider stopping buying CDs, even for a second?

Hows that always only women and children are considered some "war crimes", even if the number of slaughtered males vastly outnumbers them? Why the fuck does having a penis more or less make you a free game in any type of conflict, so random idiots like the GP dont consider you a victim any more at all?

Re:Missing The Point

[bentcd]

Hows that always only women and children are considered some "war crimes", even if the number of slaughtered males vastly outnumbers them?
It's probably biological. Children are important because we're hard-wired to want to protect children - it's probably a genetic imperative as much as anything. Women are important because they can give birth and so the ability of a population to recover from some great disaster is directly dependent upon the quantity of fertile women available. Men aren't that important because one single man can impregnate a large number of women while a woman is out for a year after each successful fertilization.
Your only remaining problem is, of course, the food supply, but that can be handled adequately by both men and women (or the children I suppose).

Re:Missing The Point

[ShadowsHawk]

Not to mention reduced number of men = greater breeding probability.

Not that it applies to most Slashdotters. ;p

Re:Missing The Point

[Anonymous Coward]

...plus, women have all the boobies.

...well, there are men with boobies, I suppose... but the less said about "moobs," the better.

Legal Persons (More Equal Than Actual Persons)

[Steve B]

This is an example of how corporate legal personhood is selectively interpreted to grant the positive benefits of being a person under the law while evading the negative consequences.

For example, if an actual person filed frivolous lawsuit after frivolous lawsuit, eventually a judge would tell them that they have to quit wasting the court system's time with any more nonsense. If the RIAA were a real person, rather than a legal "person", this would have happened to it long ago.

Re:Legal Persons (More Equal Than Actual Persons)

[Anonymous Coward]

That is mostly because if they were a real person they would live in a small fixed area and get the same judge (or a judge that has lunch with the previous judge) over and over again.
Here the RIAA is national and therefore can piss off one judge in one state and then move to another state and piss off a 2nd judge and so on. No one judge gets stuck with the RIAA all the time.

Re:Legal Persons (More Equal Than Actual Persons)

[CoolVC]

I think your point is wrong because these lawsuits aren't frivolous. Don't get me wrong, I've downloaded thousands of songs, and have never once purchased a CD. But doesn't the RIAA have some significant legal backing for what they are doing?

I understand that they've made some mistakes suing people who were not responsible, but I am betting a majority of the people sued were sharing copyrighted files. Are they making a large number of errors? I've only heard of a few. I'm sure it would be better if they made less mistakes.

Are you saying the lawsuits are frivolous because you believe people should just be able to share whatever they want on the internet? Maybe we should get the copyright laws changed if so many people think that is the case.

Re:Legal Persons (More Equal Than Actual Persons)

[Steve B]

What makes the lawsuits frivolous isn't that the offense (copyright infringement) does not exist or is not serious, but the lack of basic minimal efforts to determine that the targets of the lawsuit are in fact copyright infringers.

For example, dumping toxic waste in somebody's yard does happen sometimes and is genuinely dangerous when it does. However, that doesn't make somebody who files lawsuit after lawsuit with baseless allegations that his neigbor is dumping toxic waste in his yard any less guilty of wasting the courts' time with frivolous lawsuits.

Re:Legal Persons (More Equal Than Actual Persons)

[CoolVC]

What more should they be doing to verify the identity of the people they are suing? I haven't followed every detail of these cases, but it has been my understanding that they have had trouble identifying the people through legal means.
Do they contact the people in question before suing them? I definitely think that is important, as a lawsuit should be used as a last resort. Many years ago, I used to send Simpsons episodes over IRC to people a few days before they were ever on TV. I got a letter from my University stating that they had received a complaint, and I could be subject to civil action if I didn't stop what I was doing. I was happy to do it. I suppose they could have sued me right off the bat, but sometimes all it takes is a warning.

If I wanted to sue somebody on the internet, then I am sure I would also have trouble finding somebody's identity. For example, somebody starts posting my telephone number and address on the internet saying I was some big racist (a lie), and then because of that people start bombarding my phone with calls and vandalizing my house. I might decide I want to sue that person (I don't know the law as to whether or not I have a case, but you get the idea). How would I go about identifying the person, when all I know is their IP address and when they were online sending stuff about me. I would think after taking reasonable steps to identify the person in question, it would be reasonable for me to initiate a lawsuit. As long as I didn't do anything too ridiculous, I don't believe it would be frivolous.

Of course I don't know what the RIAA is doing to identify the people they sue, so I am not trying to give any opinions here about whether or not they are doing it correctly.

Re:Legal Persons (More Equal Than Actual Persons)

[monopole]

Just as well the RIAA isn't a real person, in that if it were, it would probably resemble a combination of Satan, Freddie Kruger, Pinhead, Jason Voorhees and Jack Thompson, and when it wasn't suing dead people, children, and the paralyzed, it would be eating live kittens while mating with it's twin sibling the MPAA, in public.

Re:Legal Persons (More Equal Than Actual Persons)

[khallow]

No it's not. It's an example of how deep pockets can get a better outcome in court. IMHO a rich person with professional lawyers could get similar results. I don't know what the source of the "corporations stole the rights of people" movement is, but it is misguided in that it proposes to throw away a century or more of business law based on some feeble interpretation of that law which is shown to work quite well. I find it absurd.

Re:Legal Persons (More Equal Than Actual Persons)

[Dun Malg]

What more should they be doing to verify the identity of the people they are suing? I haven't followed every detail of these cases, but it has been my understanding that they have had trouble identifying the people through legal means. This falls under the heading of "Not an excuse for filing suit without probable cause". See, the fact that it's hard for them to prove copyright infringement is not society's problem.

Re:Legal Persons (More Equal Than Actual Persons)

[Anonymous Coward]

"What more should they be doing to verify the identity of the people they are suing?"

Actually identifying them correctly would be a start. They're already on the record as suing, among others, people without computers, people too young to have the fine motor control to be able to use computers, and people who aren't even alive.

There is information available, if you look, on exactly what steps they're taking to identify people. Basically, they're relying on the unspecified procedures of a single company, MediaSentry, which refuses to testify in court as to what they're actually doing. The only "evidence" that's been offered has been third-party hearsay, from a guy who spent a grant total of 45 minutes reviewing a MediaSentry report. As it turns out, they don't even bother making sure that the people they see the file being shared from actually have the account they end up suing.

Which definitely looks like lack of due diligence to me.

Re:Legal Persons (More Equal Than Actual Persons)

[Anonymous Coward]

Yes, but there would be a good chance that it would have 'nads you could kick it in. Hard. Repeatedly.

Why should the defendant suffer?

[RidiculousPie]

Surely in these cases the RIAA has admitted that they do not believe that they can secure a verdict against the defendant, so why should they be allowed to cease litigation while leaving the matter unsettled and the defendant out of pocket for legal and other expenses?

I hope this ensures that the RIAA ensures that in future cases they have valid and sufficient evidence to proceed rather than filing such frivolous suits that waste time and money for all concerned.

Re:Why should the defendant suffer?

[apathy maybe]

Same theory should work with the police and arresting and taking people to court. Good luck ever getting money from the filth though.

Even if you do sue (which you can do), and win (which you won't) you can only get back court costs (at least in Australia). Not, travel, or stress or anything like that. (I've paid hundreds of dollars flying around Aus for a court case which all the charges were dropped before the case started. Friends have been taken to court (often having to fly there) and have had their cases thrown out. None of us have ever received a penny for out trouble.)

I do agree with you though otherwise. Where the rich can afford to sue anyone they want, even if they have little evidence, they need to be punished if they fail (or if they don't have evidence).
These sort of suits are similar to SLAPPs. While a number of states in the US have legislation against such things, they obviously don't have legislation against other frivolous lawsuits..

How to stop frivolous law suits

[Anonymous Coward]

If a frivolous lawsuit is filed, the filing attorney and any other attorneys who willfully worked on the case, get disbarred. Some permanently others for a few weeks (as a 6 month suspension is functionally equivalent to disbarment as it make s you unemployable and kills your practice).
There needs to be a sliding scale, as I don't want the 1st year associate who's boss told him "do this work" to have his career ruined. The 1st year (and mostly no one below partner) has no power in the firm, and has the only option of doing the work or quiting.

Whether or not this is a frivolous lawsuit is a question of fact; therefore the jury decides. Not the judge (unless they are acting as the trier of fact in that instance.)

You start threatening attorneys livelihood, especially when that livelihood is such a huge investment, you will see these cases go away.

Re:How to stop frivolous law suits

[Anonymous Coward]

First of all, a great number of politicians are lawyers. It's doubtful that they will willingly compromise their own profession's ability to make easy money. Keep in mind that after their term in office is up, or if they fail to get reelected, many get back into practicing law.

Second of all, such a system may make it quite difficult for smaller parties to participate in lawsuits. In the case of lawsuits that may not necessarily be frivolous, but that are near enough to that border line, lawyers may demand that the client cover any expenses if those lawyers are suspended or disbarred. This is something that a client without vast financial resources would likely not be able to afford. So soon enough the only people who will have the resources to sue are corporations or industry associations. We end up with the problem we have now, but without normal people having the ability to fight back.

Re:How to stop frivolous law suits

[iminplaya]

Not merely disbarred. I want to see perjury charges filed. If we're going to imprison spammers, then these guys should get the chair, and their assets donated to the victims of their crimes.

Re:How to stop frivolous law suits

[Anonymous Coward]

That is why you have the jury decide. And you don't ask for $1 Trillion dollars in damages.
If the jury feels you are asking for what you deserve and not looking for a payday, the chances of them finding your suit to be frivolous decreases.

Also, IIRC you can't ask clients to pay for your ethics (as in "Regulation of Lawyers" not "morales") violations.

Re:How to stop frivolous law suits

[Anonymous Coward]

This policy would have the unfortunate effect of inhibiting high risk but valid cases against resourceful parties such as the first cases holding tobacco companies liable for their deception. You're trying to protect the innocent, but your policy just protects potential defendants. Not the same thing.

If the government isn't going to require accountability of prosecutors of wrongfully prosecuted and imprisoned people (or the families of those wrongfully executed), they're not going to do it for something as trivial as filesharing suits.

Re:How to stop frivolous law suits

[psxndc]

Wow. So you should die for filing a lawsuit. That sounds fair. Or you should be charged with perjury. riiiiiight.

OK, /.'ers, since 99% of you AREN'T lawyers and don't know the first thing about law suits - while you have to do some due diligence before filing a lawsuit, you usually don't know the real facts until you are already partway into the case in a phase called "discovery," which is usually the most expensive part of the suit.

Under your torch-weilding system, I would have to root through your firewall logs BEFORE I filed a lawsuit, even though I may actually have a legitimate claim against you.

Yeah, that makes sense. /sarcasm. -p-

Re:How to stop frivolous law suits

[2short]

What you describe is largely the case. Lawyers are liable if they bring cases they know (or should know) will be unsuccessful, and can be disbarred and/or be required to pay monetary damages. Go read the letter from the defense attorney in the recent RIAA-related story; amongst other things, he states his intention to sue the lawyers, not just the plantiffs, if they don't settle.

"Whether or not this is a frivolous lawsuit is a question of fact; therefore the jury decides. Not the judge (unless they are acting as the trier of fact in that instance.)"

Whether the lawyer is liable for bringing a malicious case is generally a matter of law, and hence decided by the judge. It is possibly unreasonable to expect lawyers be correct about the facts in a case (their clients may lie to them, amongst other things). They are legally expected to understand the laws in the case. You can still sue the plantiff for misrepresenting the facts, and could sue the lawyer if you could prove he knew about and endorsed it, but that's less likely.

Re:How to stop frivolous law suits

[professionalfurryele]

You can circumvent your second problem by preventing those kinds of contractual agreements using a 'no profiting from illegal activity' style law.

You can then up the hurt on the lawyers clients by incorporating a sliding scale of fines, so a fine which would banrupt an individual also banrupts a company. In the end no one is able to sue frivilously, or nearly frivilously, which is preferable to what we have now. At present we have a legal system which is little better than an arm of our corporate government. If buying the best lawyers doesn't work, then companies just buy laws and lawmakers. The only time that doesn't work is when another company stands up to them. At least if no one can sue, then the corrupt laws are harder to use.

As for politicians often being lawyers, well not much I can see that can be done about that. Both professions are essentially professional liars. Campaign reform (banning political donations and political parties) may help though, if politics could be entered by someone other than the well connected and the wealthy that might cut down the single professions (lawyers, union leaders, sons of rich industrialists (modern aristocrats)).

Re:How to stop frivolous law suits

[HostAdmin]

How about this - you file suit and lose, you pay the other parties cost to defend plus compensate them for their aggravation. Automatically.

Re:How to stop frivolous law suits

[iminplaya]

I believe you know what I'm getting at :-) And these people are worse than spammers by a long shot They know exactly what they're doing. It's purely a roll of the dice to them with very little cost when they lose. And there is no part of "discovery" that should involve me unless charges are filed. That would be my right to live free from harassment. Even though it's now a sad joke, there is a law to protect me from that. And failure by those in authority to enforce it should also be an imprisonable* offense. I don't care if it's a civil suit. If it's handled and authorized by a judge in a public courtroom then the government is involved and the law of the land should apply. This a "separation of powers" that shouldn't exist. This whole "civil suit" thing is designed to give more power to business than it does to the government by creating the lower standards of innocence and creating an end run around written law. It's how the IRS conducts its harassment campaigns. It uses civil law to seize property.

*note that this is directed at those types who believe more jail time will solve all of society's problems or who are expecting big dividends from the law enforcement sector. I personally don't believe in subjecting anybody to that kind of horror.

Re:How to stop frivolous law suits

[NIckGorton]

While I have a natural aversion to lawyers as a physician... this kind of suggestion is about as useful as the idea of revoking the license of physicians who lose a malpractice lawsuit. It might seem like a way to prevent errors, but its not going to work out the way you think.

Doing so in either case will have a lot of consequences that we would all not like:

1) Other clients/patients of the guy who loses his licensure will suffer the loss of the relationship and professional services they get. You might think that no one would want to see a lawyer or doctor who had lost a malpractice case, but if that was the case the majority of physicians in the US would not be practicing today.

2) Every professional by virtue of being a human being will make honest mistakes. Punishing single mistakes by completely destroying that professional's ability to practice will lead to a shortage of people willing to enter that field as well as a shortage of people willing to take the difficult cases in that field. (I can tell you I would never have entered Emergency Medicine where I cannot choose who I will and won't see had this been the case.)

3) If you are defending your own ability to practice (and perhaps your children's livelihood) you are going to go to extremes in order to protect it. If I was under this kind of pressure the amount of defensive medicine I (and every other physician) practice would go through the roof meaning increased costs, unnecessary tests, unnecessary antibiotics, etc. I suspect the same would be the case for lawyers if you pressed them to that extreme.

So while it may seem like it would help to levy draconian punishments for medical or legal malpractice, if you have that sort of system, you won't be happy with the results.

That doesn't mean that you should not use those kind of extreme punishments against professionals who are habitual douchebags. It also doesn't mean you should not levy punishments for errors. But it does mean that you shouldn't punish people innocent of any wrongdoing (the lawyer's other clients) and you should not extract unreasonable punishments for common mistakes.

Nick

Re:How to stop frivolous law suits

[zCyl]

Even though it's now a sad joke, there is a law to protect me from that. And failure by those in authority to enforce it should also be an imprisonable* offense. I don't care if it's a civil suit. If it's handled and authorized by a judge in a public courtroom then the government is involved and the law of the land should apply.

The fourth amendment has clearly not been applied in this way, historically speaking, but as of five minutes ago I think I'm a fan of this proposal. I am not a lawyer, but you seem quite right to me that a literal reading of this amendment should apply to civil cases. This would profoundly change the level of evidence required for lawsuits to be filed, which is sensible since the financial burden for legal expenses is similar, and the huge financial penalties can often exceed the fines from criminal cases.

I wonder what it would take to actually get this applied to civil cases. Could a single Supreme Court ruling do it?

Re:How to stop frivolous law suits

[Anonymous Coward]

The federal court system beat you to the punch. Under the Federal Rules of Civil Procedure (which govern any civil cases tried in federal courts, and after which most states model their own rules of procedure), there are sanctions for filing frivolous lawsuits, as well as for making frivolous claims or defenses against claims (there's a right to defend yourself, even frivolously, in a criminal case, but no such luck in civil cases).

Check out Rule 11 (http://www.law.cornell.edu/rules/frcp/Rule11.htm) for details.

The problem isn't that there aren't rules against bringing frivolous suits. It's that they're rarely handed out, because the standard for 'frivolousness' is a pretty low bar to clear. Also, even though the rules say the judge can decide on sanctions without one of the parties raising it, that's not usually how it works -- it would probably need to be a pretty egregious case for the judge to do it on his own initiative. My guess is most of your RIAA defendants aren't poring over the Federal Rules to see whether there's any kind of claim they can bring, and even if they were, it's an open question whether the RIAA lawsuits are *so* far out there that they'd be covered.

Re:How to stop frivolous law suits

[TheVelvetFlamebait]

You start threatening attorneys livelihood, especially when that livelihood is such a huge investment, you will see these cases go away.

To stop these lawsuits, there needs to be proper disincentives for the party filing the suit, right? Now that party is made up of lawyers and their clients. This raises the question: why the hell did you go for the lawyers and not the clients? The lawyers are just doing their jobs, while their clients take pot-shots at people without due dilligence. Who do you think is more deserving of punishment, huh?

Re:How to stop frivolous law suits

[kcbrown]

2) Every professional by virtue of being a human being will make honest mistakes. Punishing single mistakes by completely destroying that professional's ability to practice will lead to a shortage of people willing to enter that field as well as a shortage of people willing to take the difficult cases in that field. (I can tell you I would never have entered Emergency Medicine where I cannot choose who I will and won't see had this been the case.)

Then use a "three strikes" law. If it's good enough for punishing criminals, it's good enough for punishing lawyers.

3) If you are defending your own ability to practice (and perhaps your children's livelihood) you are going to go to extremes in order to protect it. If I was under this kind of pressure the amount of defensive medicine I (and every other physician) practice would go through the roof meaning increased costs, unnecessary tests, unnecessary antibiotics, etc. I suspect the same would be the case for lawyers if you pressed them to that extreme.

Except we're talking about the specific act of initiating a frivolous lawsuit. If the cost of initiating lawsuits goes up as a result of the lawyer being forced to be extremely careful, then good! It'll mean that the lawsuits that do get initiated will have much more solid footing. Just like they should.

Frivolous litigation helps nobody but the lawyers. It must stop. As it is, it's a huge drain on the economy. That money can be better spent on things that really improve people's lot in life. Like research and development.

Re:How to stop frivolous law suits

[Anonymous Coward]

Maybe we're so far down the road on this, but personally I don't think malpractice suits should be brought when the case is simply human error. If the doctor operates and something bad happens, that's one thing. If the guy walks into the OR blitzed on cheap genever, well, that's malpractice.

Re:How to stop frivolous law suits

[fucksl4shd0t]

No, making it harder to start a lawsuit is definitely worse than alternative solutions. You've got your heart in the right place, no doubt, but all you're going to get is less lawsuits, period. Not just less frivolous lawsuits, less lawsuits, which means more people suffering who could have sued but didn't, because of the price just to start.

I'd rather have the plaintiff pay all legal expenses if he loses. NOt the defendant, just the plaintiff. The defendant has to respond or he gets summary judgement against him. Then, people who really want to fight can theoretically find a lawyer willing to take the case (assuming they have a case to begin with).

It's not as good as the goal you want, but if there's anything I've learned programming, it's that incremental change is the path to success, not sweeping change. Make little changes and test them.

Re:How to stop frivolous law suits

[soloha]

It's called a counter suit.

Re:How to stop frivolous law suits

[NIckGorton]

Then use a "three strikes" law. If it's good enough for punishing criminals, it's good enough for punishing lawyers.

Who said three strikes laws are good? Um, putting people in jail for the rest of their lives for passing a bad check is idiotic (not to mention a wast of tax-dollars). Just because we have one fucked up law, that doesn't mean that we should make all of our laws equally fucked up.

And if you used a three strikes law for malpractice claims you can just add the words 'practicing for 10 years' to my previous statement about physicians. The average OB/Gyn has over a dozen suits in their practice lifetime (which starts at age 30 if you go straight through hs to college to med school to residency. Which means that is a suit every few years.) So if you actually want a doctor to deliver your baby, you might want to reconsider that statement.

Except we're talking about the specific act of initiating a frivolous lawsuit. If the cost of initiating lawsuits goes up as a result of the lawyer being forced to be extremely careful, then good! It'll mean that the lawsuits that do get initiated will have much more solid footing. Just like they should.

No, it means that we will have less lawsuits period. If the cost of entering the game is higher then fewer people will play. However, who plays is largely determined by who has enough money to enter rather than who has s legitimate claim.

Nick

Re:How to stop frivolous law suits

[psxndc]

Hate to break it to you, but the 4th Amendment only applies to the government itself trying to search/seize you. Of course that usually happens only in the criminal sense, which is why you don't see it used for civil suits, but i digress.

Double problem: the 4th amendment doesn't really protect you like you think it does. It only prevents evidence impermissibly found on you from being used against you in court. It's not like if the cop is checking out your prostate you can say "this is a violation of the 4th amendment" and he has to stop. It's only if he finds the coke up your ******* and he had no probable cause to pull your pants down that you get the protection, in court, against the coke being used at your coke possession trial. And, if I didn't make this clear, there is no action against the officer for the 4th amendment violation. You have to bring a separate suit against the cop/police force/town, etc for that, but the statute escapes me (1983??).

-p-

Re:How to stop frivolous law suits

[iminplaya]

Hate to break it to you, but the 4th Amendment only applies to the government itself trying to search/seize you.

I understand this is ongoing policy, but I think it's wrong to use government facilities to get around(violate) the law just because it's a "civil" case. It's truly amazing that the IRS can hide behind civil law when taking your property because the constitution doesn't permit it. And now we let private organizations do the same thing in the name of "discovery". Man! the Mexican government has more respect for private property. We must apply the constitution equally to all matters before the court. That's what equal protection is supposed to mean.

Re:How to stop frivolous law suits

[Foochee]

OK, /.'ers, since 99% of you AREN'T lawyers and don't know the first thing about law suits

Wow, 99%? Obviously you AREN'T a pollster or statistician and don't know first thing about statistics. I suggest to stick to the lucrative field of phrenology.

Re:How to stop frivolous law suits

[psxndc]

Sorry, that's not at all what equal protection is about.

I understand your ideal, but it doesn't work. If you sold your house and got a bad deal, you could then run to the court for deprivation of property without just compensation. If you signed an NDA with your company, you could sue the company for violations of freedom of speech. All contracts and business would come to a screeching halt because we commit "constitutional violations" every day. It's our given right to contract away our freedoms and rights in exchange for something we want. If we could then turn around and rescind the deal citing Constitutional violations, it would cripple the economy.

-p-

Re:How to stop frivolous law suits

[psxndc]

ok smarty, suggest a percentage. 99% wasn't literal, but I'll bet you $5 at least 75% of the people that read slashdot and post here are not lawyers. The comments on /. showing the common slashdotter's understanding of the legal system (and intellectual property in particular) made me cringe to the point I had to walk away from slashdot for three years (check my posting history).

It hasn't gotten much better.

-p-

Re:How to stop frivolous law suits

[ArsonSmith]

Except that this is more akin to a physician pushing unneeded surgery because they get more money for it. It happens all the time and should stop as well.

Re:How to stop frivolous law suits

[RobBebop]

Stick to your guns... don't go easy on the small fish in the pond just because they are "doing their job". Doing something that you don't believe in because somebody told you to do it is just as bad as doing something that you believe in that is socially reprehensible.

And doing something for the sake of earning a paycheck? That's just spineless.

Re:How to stop frivolous law suits

[arodland]

Actually the wording on this one is a bit fuzzy, I could see some interesting interpretations. It's not a "Congress shall make no law", or any specific "X may not do Y"; it says "The right of the people do be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". Sure, the identity of who "shall not" is good and implicit in the document, but I find it odd anyway.

Re:How to stop frivolous law suits

[iminplaya]

Signed contracts are a completely different matter altogether. What the these groups are doing does not involved signed contracts. They are arbitrarily issuing statements that can result in a person, who is completely uninvolved, losing his personal property because it is a "civil" matter. And failure to comply can result in jail time. The 4th amendment has just as much place here as any. And the 5th, for what that's worth.

Re:How to stop frivolous law suits

[vic-traill]

While I have a natural aversion to lawyers as a physician...

Absolutely! There is *nothing* scarier than a lawyer acting as a physician, man.

The patient died but the operation was ... profitable?

[/humour]

Re:How to stop frivolous law suits

[Anonymous Coward]

Waoh, Woah Woah

You are confusing "malpractice" with "frivolous lawsuits" Not the same thing at all!

I repeat ... You are confusing "malpractice" with "frivolous lawsuits" Not the same thing at all!

An attorney can get sued for malpractice (i.e. negligence). However, a frivolous lawsuit is not negligence, it is willful. We already have laws against this type of things when dealing with SLAPP suits (frivolous suits by corp's against people who protest the corp).

You miss a bar date, file the wrong form, etc. ... malpractice. Under this scheme no disbarment (well legal malpractice always includes a bar complaint, but ...)
You do everything "right" but you have brought a suit with no merit and wasted the court's, the defendant's the juries time, you have brought a frivolous lawsuit and you get suspended (disbarred if it is really overkill). To bring a frivolous suit you have to engae not in negligent conduct but willful conduct.

The analogy of demanding that your patient have a surgery which you fully know is grossly unneeded and expensive is the correct analogy. We aren't talking about forgetting a sponge inside the patient. We are talking about performing hysterectomies (sp?) because you get a hell of a lot of money for them, even though the patient is fine (I picked a surgery at random there).

SO to answer your points.
#1) We are not disbarring the firm, only the supervising attorney. Your work (especially as a corp) was spread out among all the associates of the firm. Maybe you don't go out to lunch with Jack (Now Jill manages your account) but the firm still represents you.
As a doctor you have a 1-to-1 relationship with the patient. As a firm you have a 1-to-many-many relationship. Taking 1 guy out doesn't end that.

#2) Once again, your point is directed to malpractice. This isn't negligence it is an intention "tort"

#3) The frivolous only comes into play when you file the law suit. You don't have to win, just not file the suit for harassment purposes (yes if I was writing the law I'd have a full blown definition to "frivolous" but I am not not going to corner-case the definition for a blog forum)
So, I am not asking the attorney's to constantly worry about disbarment (more than the already do F'ing bar association). The only increased costs is a better evaluation of your case before you file. And maybe you don't just ask for $1 trillion dollars (which just looks bogus).
The $1 trillion brings up the needed reform of PUNITIVE (not COMPENSATORY) damages. Short-answer tax them at a very high rate. So, it punishes the wrongdoer but is no longer an incentive to file law suits. You should be made whole from your loss (viz. the reason you sued) not rich.

Re:How to stop frivolous law suits

[iminplaya]

The fuzz I see is growing around the word "unreasonable". That could be anything that 51% of the people say it is. Notice that the word is left out of the... first amendment, in its stark simplicity and exactness, and yet the debate is even more heated over it.

Re:How to stop frivolous law suits

[psxndc]

OK, my point was apparently garbled. The discussion was: these people are bringing lawsuits against "innocent" people and "innocent" people should be protected against search and seizure under the 4th Amendment, or deprivation of property even though the Constitution only protects you from acts performed by the government. The argument was further made that "well, since you are in Court, you are being acted upon by the government and thus should receive the same protections"

My point was if you and I signed an NDA, and I broke it, you'd sue me for breach and I would be subject to the court's power. As a result, I could then say "no, court, I have a free speech right. You can't force me to comply with that NDA because you have to protect my free speech under the 1st amendment," like they would have to protect my 4th amendment protections against search and seizure.

I see why it is confusing because it is not an exact analogy. The point is: Constitutional protection CANNOT apply to civil disputes because then you wouldn't really be "free," e.g., I can't kick you off my land for saying things I don't like since you have a right to speech speech against me.

Re:How to stop frivolous law suits

[innerweb]

Wait, are you saying that I need to have some knowledge to post on a subject? I missed that one in the fine print. Must be another one of those lawyer tricks.

-InnerWeb

Re:How to stop frivolous law suits

[NIckGorton]

The big issue is a slippery slope of indications. Its not totally unneeded surgery that is the issue, but 'not quite so needed' surgery. And that's something you can't really regulate (or even detect) easily. The decision to get a procedure is a risk/benefit calculation and its dependent on where the balance of the scale is. Some guy who is really doing flat out non-indicated procedures is an easy mark, but those are pretty rare compared with the ones who shift the balance just slightly.

But then part of that very problem is the malpractice system in the first place. Why do you think so many women get C-sections? Because no one ever sues you for the C-section you do. But if you are more conservative, the one time the baby does badly and you don't do a section, you are fucked. Same thing with a cardiologist: say you have a patient with chest pain that has really weak indications for doing an angiogram. If you do one and its clean that's great. The patient incurs a slight risk from the cath, and it costs several thousand dollars, but you wont be faulted for being 'careful'. However if you don't do one, eventually you are going to send someone away and they will have a heart attack the next week, at which point you are again, fucked. The system is set up for people to me more aggressive, send too many tests, do too many procedures, and prescribe too many antibiotics. In the US we are set up to not reward the avoidance of false positives but we severely punish getting a single false negative. So its no wonder cardiologists are loose with the caths and gynecologists with the sections.

You want an easier target that is both readily regulated and will seriously decrease unnecessary treatments? Outlaw physician drug detailing and advertisement for drugs in the popular media. More people are harmed with unnecessary drugs than with unnecessary surgery. Yet we allow some of the most dangerous drugs (those most recently approved) to be advertised like they are Taco Bell or an iPod.

Nick

Re:How to stop frivolous law suits

[Anonymous Coward]

for which you have to continue to fund a lawyer (and will no doubt have to sue again if you want to cover those costs) and drag the whole thing out even longer. If you've spent 4 years defending a suit against the RIAA would you really chose to start all over again?
Once one side loses, the side which was in the wrong was apparent, having them automatically pay the other side's costs seems sensible (or at least having the assumption that they will have to and them having to have a good reason why not). I particularly like the idea of having to compensate someone if you sue them falsely.

Re:How to stop frivolous law suits

[arkhan_jg]

But how do you know you have a legitimate claim if you have no reliable evidence of liability to start with? Is it fair that the RIAA (on behalf of say, Sony BMG) can basically point their finger at someone and go -
"You. We think you're guilty of something, though we have no reliable evidence. Give us your hard-drives so we can find out what. And even if we don't find anything, you're going to be on the hook for $6000 for fees. Or just pay us $3000 now, admit liability, and we'll go away."

Any system which doesn't require a reasonable amount of evidence of liability before a case can go forward is broken. Any system which allows scumbags to hire scumbag lawyers to persecute people on the back of no evidence, and then drop the case before losing sets a precedent, is broken. Other professionals have to risk their certification being pulled, or fines from a professional body, or civil suits against them personally if they fail drastically in their duty to the public. Why the hell should lawyers be exempt?

Re:How to stop frivolous law suits

[BlueTrin]

OK, /.'ers, since 99% of you AREN'T lawyers and don't know the first thing about law suits

Since you are 0% statistician, I guess your figures have 99.9% chances to be a made up on the fly to backup your argument with a 95% probability.

I may be 100% wrong though !

Re:How to stop frivolous law suits

[Petrushka]

... and that would mean only very very very rich people would ever dare to sue anyone.

Just as well that only rich people ever have legitimate civil complaints, isn't it? Oh wait that's not true.

Re:How to stop frivolous law suits

[notwrong]

But then part of that very problem is the malpractice system in the first place. Why do you think so many women get C-sections? Because no one ever sues you for the C-section you do. But if you are more conservative, the one time the baby does badly and you don't do a section, you are fucked. Same thing with a cardiologist: say you have a patient with chest pain that has really weak indications for doing an angiogram. If you do one and its clean that's great. The patient incurs a slight risk from the cath, and it costs several thousand dollars, but you wont be faulted for being 'careful'. However if you don't do one, eventually you are going to send someone away and they will have a heart attack the next week, at which point you are again, fucked. The system is set up for people to me more aggressive, send too many tests, do too many procedures, and prescribe too many antibiotics. In the US we are set up to not reward the avoidance of false positives but we severely punish getting a single false negative. So its no wonder cardiologists are loose with the caths and gynecologists with the sections.

I have suspected for a while that this is the main reason why the US spends more on health care than any other country, yet seems to get a much worse return on that spending than most. Policies that basically force doctors towards arse-covering seem to be a very poor way of getting the best outcomes for everyone. The New Zealand system is an interesting contrast, as compared here.

Re:How to stop frivolous law suits

[toQDuj]

Why wouldn't less lawsuits be better? I live in Europe and watch with wonder the sheer number and type of lawsuits that are generated in America.

Here, insurance companies pay without whining or whittling their way out of paying, and thus I haven't heard of a single "emotional distress"-lawsuit being filed here. I don't have an attourney, I have never needed one.

Thus, suing everyone left right and center might not be in the benefit of the lawyers, but it is certainly a lot less stressful for the now virtually suit-free public.

B.

Re:How to stop frivolous law suits

[unitron]

While I have a natural aversion to lawyers as a physician...

As do I. I much prefer physicians as a physician :-)

(my brother the ER doc probably has even fewer nice things to say about lawyers than do you).

Re:How to stop frivolous law suits

[Anonymous Coward]

I figure with the thousands of indiscriminate lawsuits being filed, it's only a matter of time before they will screw with some one who is wound a little too tight. And that person does a Tim McVeigh on the record company headquarters.

Re:How to stop frivolous law suits

[Anonymous Coward]

Wow. So you should die for filing a lawsuit. That sounds fair. Or you should be charged with perjury. riiiiiight.

OK, /.'ers, since 99% of you AREN'T lawyers and don't know the first thing about law suits - while you have to do some due diligence before filing a lawsuit, you usually don't know the real facts until you are already partway into the case in a phase called "discovery," which is usually the most expensive part of the suit.

Under your torch-weilding system, I would have to root through your firewall logs BEFORE I filed a lawsuit, even though I may actually have a legitimate claim against you.

What's missing from these lawsuits is the due diligence that would be expected of someone who is looking for fact, not what we get with these lawsuits which is marginal "evidence". This is shown by whom they continue to bring suit against. They are suing those who in most cases can't afford to defend themselves. The CEO of at least one of the major recording labels who make up the RIAA have directly admitted that their family members have downloaded music through Kazaa but you don't see the RIAA bringing suit against these "infringers". Of course why go after them when you can bring 7 yr olds and grandmothers to financial ruin, it's so much more satisfying.

What they are doing is using vague accusations and then attempting to leverage that into a "let's see what else we can find" discovery process. They do not look for actual infringement of what they detected but a witch hunt for what they may find. To find that the RIAA is using questionable tactics just look at the recently released deposition of the RIAA's "expert" witness. This is a university professor and CIO of a tech company that specializes in software to detect this kind of thing. The "expert" is dodgy on many of his answers, his explainations of how things work show that he is either being intentionally misleading or has no clue as to how things work. To top it off the "expert" that was used by the RIAA has no professional standing in forensics, which is what the RIAA hired him to do, nor does he know what procedures should be taken when doing the forensics that he is doing.

So much for the belief that the RIAA is out to actually prosecute those who have actually infringed instead of those who can be bullied.

Re:How to stop frivolous law suits

[Zaatxe]

Wow, 99%? Obviously you AREN'T a pollster or statistician and don't know first thing about statistics.

73.6% of all statistics are made up in the moment they are stated.

Re:How to stop frivolous law suits

[david_thornley]

I'd rather have the plaintiff pay all legal expenses if he loses. NOt the defendant, just the plaintiff. The defendant has to respond or he gets summary judgement against him. Then, people who really want to fight can theoretically find a lawyer willing to take the case (assuming they have a case to begin with).

Which would effectively remove the ability of the individual to sue the corporation. If I have a legitimate grievance against a corporation, and an estimated 90% chance of prevailing in court, then if I sue I've got a 10% chance of bankruptcy. Considering everything that is ultimately settled either by litigation or the possibility of litigation, that means that individuals have no effective patents or copyrights, can be discriminated against for any reason (such as race), and have no ability to defend themselves against corporate libel, just for starters.

Any equitable solution has to allow individuals to sue large corporations without unreasonable fear of going bankrupt. I think that the solution is to penalize frivolous lawsuits, myself.

Re:How to stop frivolous law suits

[Ihlosi]

If I have a legitimate grievance against a corporation, and an estimated 90% chance of prevailing in court, then if I sue I've got a 10% chance of bankruptcy.

As opposed to a 10% chance of near-bankruptcy if you only have to pay your own costs ?

And if your chance of winning is that good, there's usually an appeals process.

Considering everything that is ultimately settled either by litigation or the possibility of litigation, that means that individuals have no effective patents or copyrights, can be discriminated against for any reason (such as race), and have no ability to defend themselves against corporate libel, just for starters.

It also means that individuals and companies can be bled dry by another party that has vastly more resources to spend on legal costs _even if that other party never wins a single lawsuit_.

Why the heck should a party that has been found not guilty or not liable be forced to pay for anything ?

Re:How to stop frivolous law suits

[SillySlashdotName]

To stop these lawsuits, there needs to be proper disincentives for the party filing the suit, right?

Right. And who is filing these lawsuits? THE LAWYERS are for their client.

This raises the question: why the hell did you go for the lawyers and not the clients?

Because the lawyer should have the knowledge to KNOW that the suit is frivolous, while the client may not know that it is.

The lawyers are just doing their jobs,...

No they are not.

Their job is to use their expertise in the legal field to HELP their client. They are not helping their client if they are filing frivolous lawsuits that CAN NOT WIN. They are only lining their own pockets with their fees while going through the motions. Smack them down hard enough, and they will forgo the cases as not worth the penalties involved.

...while their clients take pot-shots at people without due dilligence[sic].

What 'due diligence'? They have consulted a lawyer who took their money, told them they have a case, and started the process of filing a suit. The client does not (probably, although they might) know the suit is frivolous, BUT THE LAWYER SHOULD KNOW!

If a client goes to a lawyer and their request is turned down because the lawyer thinks it is frivolous and would result in the lawyer being sanctioned, the client has the opportunity to go to another lawyer for a second opinion. If the client goes to several lawyers AND THEY ALL REFUSE THE CASE, there is a chance the client will get the message not to pursue the case. Or the client could pursue it on their own, with the attached risk of the penalties associated with bringing a frivolous case which several EXPERTS IN THE LEGAL AREA have told them they WILL be hit with.

When a lawyer can bring a frivolous case with NO DISINCENTIVE or PENALTY, why should they turn the case down? It is money in their pocket, with (currently) no disincentive at all.

My own suggestion would be that the lawyer for the frivolous suit should be fined the entire amount of the client fees and expenses claimed, plus an amount equal to that amount. That way the client gets to pay their lawyer (no free lunch HERE!), but the lawyer does not profit by filing the case - in fact they LOSE money on frivolous suits (surely an incentive to NOT file stupid lawsuits).

Re:How to stop frivolous law suits

[Anonymous Coward]

Under your torch-weilding system, I would have to root through your firewall logs BEFORE I filed a lawsuit, even though I may actually have a legitimate claim against you.

Yeah, that makes sense. /sarcasm. Well, combine that with that you cannot root through them without lawsuit in place and you get a system where suing for copyright infringement is pretty much impossible. How can that not make sense?

Re:How to stop frivolous law suits

[NIckGorton]

We are not disbarring the firm, only the supervising attorney. Your work (especially as a corp) was spread out among all the associates of the firm. Maybe you don't go out to lunch with Jack (Now Jill manages your account) but the firm still represents you.

As a doctor you have a 1-to-1 relationship with the patient.

Maybe if you watch "Marcus Welby, MD" reruns. But that is not the norm for many people in the US. If you see a solo practitioner, you see your doctor in her office. However, typically today you see a physician in a multi-provider practice. You may have a primary assigned doc, but are very likely to be seen by other providers in the group.

This is just like with legal practice, with most people are in larger multi-provider practices, while some are in solo practice. Either way its the same if you remove a doctor or a lawyer from their practice. Those for whom Joe was the lawyer or doctor will feel a loss if he's gone because he was the most familiar with their case. If Joe is in a large group, his partners will take over the case, but that is not preferable if Joe is the lawyer who was working on your custody case or the doctor who was treating your asthma. If Joe was a solo practitioner though, you are totally fucked, since you now have to start from scratch with a new provider.

Also, how is making a mistake when advising someone whether their kid needs a CT for a bump on the head different from making a mistake when advising someone to sue? You admit that the reason these suits may be undertaken are because an attorney did not know (whether through not getting all the facts, not digesting them, not drawing the right conclusions from that data, not knowing enough about the law itself, etc.) that the case was frivolous. So how is that different from me not getting all the facts about a kid's head injury, not taking time to digest what I've heard, not putting the data together correctly, or just not knowing the evidence that tells us when we need to do a CT?

The basic argument is that if you levy draconian punishments against professionals for making errors we can force them to not make them. That is as doomed to fail with attorneys as it is with physicians or any other professional. It will change behavior, just not in the way you think.

Nick

Re:How to stop frivolous law suits

[Anonymous Coward]

ok smarty, suggest a percentage. 99% wasn't literal

Oh, so you weren't being "literal," but you respond to iminplaya's comment "If we're going to imprison spammers, then these guys should get the chair," as if he meant it literally.

I had to walk away from slashdot for three years

I think you came back too soon.

Re:How to stop frivolous law suits

[fucksl4shd0t]

Less lawsuits = less legitimate lawsuits

Think of getting rear-ended by someone without insurance, causing permanent damage to your back. Think of getting fired because your boss is a sexist and doesn't think women should be working. Etc.

Re:How to stop frivolous law suits

[LMariachi]

You don't want computer programs written by someone who hasn't studied and practiced programming, so why would you want laws written by someone who hasn't studied and practiced law? There's more to politics than kissing babies, making speeches, and playing golf with lobbyists.

P.S.: "Union leaders"? I take it you're not talking about the United States.

Re:How to stop frivolous law suits

[professionalfurryele]

Three words for you:
House of Lords.

The problem you just described is the job of an apointed second house. The lower house reflects the will of the people, the upper house prevents the peoples representatives from doing something really stupid because it is packed with the necessary experts (lawyers, scientists, engineers, artists, sociologists, leading moral figures, etc) who don't have to worry about re-election. They also only have power to slow government, not direct it.

You're correct I'm not talking the U.S. I'm from Britian. Of course what I say readily transfers to the U.S. with the slight modification that the U.S. right wing is the equivilant of the British ultra-right, while the American 'left' is basically the equivilant of the British right wing.

To answer your question, what I want is an upper house which can deal with making laws legally sound, and a lower house that reflects the will of the people. As such I don't care much about the skills set comprising the lower house so long as each member can claim to represent their constituents. The upper house on the other hand needs to be skills heavy, representation light.

For a classic example of how stupid not seperating these two concepts are look at the role of the US president as commander-in-chief. Every four year the US debates if this candidate would make a good commander-in-chief or not. He is the head of the civilian government. He should be telling the military who to bomb, not how to bomb. It's absolutely crazy and invites military involvement in the civilian government because the public will have a harder time electing anyone who has not served in the military.

Look at Bush, as much as I hate the guy the fact that his military record is used to suggest he is not a good commander-in-chief counted against him when it shouldn't have, at least not in the way it did.

Re:How to stop frivolous law suits

[TheVelvetFlamebait]

Maybe so in some situations, but are you sure it's wise to persecute on such a subjective judgement call? How is the lawyer meant to know what is frivolous and what isn't (according to the courts)? They can tell apart cases that they probably won't win, but they can't say for sure. These are lawyers after all; if they want to get out of these penalties, they'll just have to say they believed there was a fair chance.

The way I see it, the client (if anyone) should pay. They maybe stupid gits, but it's the lawyer's job to help them through. If they don't, and the resulting case is deemed "frivolous", the client gets penalised, and the lawyer can be sued for damages. However, I think this whole idea of determining frivolous cases is too flimsy for the law.

Irony

[Anonymous Coward]

Isn't it weird how the RIAA is after "pirates", yet the RIAA are ones who prey on others for booty?

On a funny note, the word "pirate" came from a word in greek meaning "trial".

I guess fighting piracy really is "fighting the courts".

Re:Irony

[toQDuj]

Yes, but the RIAA is a legal instance. The pirates are not.

B.

Legal Fees

[Numbah One]

It would be good and proper if the judge awarded legal fees to the defendant. While this might prompt the RIAA to pursue the case rather than pay up, it might give them pause before pursing future actions.

It is nothing to do with the judges

[EmbeddedJanitor]

RIAA makes claim. Defendent makes counter claim. Out of court settlement results in both dropping their claims.

However, there is no reason why this should be the outcome of an out of court settlement. The RIAA can choose to withdraw a claim without any obligation on the defendent, in which case the counter claim stands.

Presumption of Guilt

[hedgemage]

I'm glad that our court system is working fine! Guilty until proven innocent, I say!
Wait a minute...

Eternal Justice

[Doc Ruby]

It's probably safe to presume that these new cases finding counterclaims allowed are of the same merit (or lack) as the ones that just totally dropped, and even found the defendants liable.

What has changed? The laws are the same. The actions are the same.

Maybe the judges are a little smarter now. Maybe the lawyers are a little smarter. But if I didn't get the same results as a defendant in the same circumstances a year or more ago, I'd want a new trial. It's not supposed to be my problem if the administrators of justice are too stupid to leave me alone with laws they don't understand.

That's the new development I want to see: a retrial on the basis that maybe the courts aren't as stupid as they were when they decided against me.

Re:Eternal Justice

[Todd Knarr]

It isn't a matter of a difference in court rulings. In most of the previous cases the defendants settled with the RIAA to avoid a court fight. The difference with these recent cases is that in them the defendants refused to settle and actually filed counterclaims and presented evidence and basically went forward with the actual court part of things. And as it turns out, the RIAA had as little case as we believed they had, and the defendants started to win. The people who decided to avoid the risk and settle have no legal grounds for complaint when people who were willing to take the risk are now winning. "But we could've won too!" is answered by "Yes, if you'd fought. But you didn't, did you?".

Re:Eternal Justice

[Doc Ruby]

They might not have legal grounds to reopen the case. But how many of these random people, many teenagers or their parents, decided against their lawyers' advice to drop it rather than pursue the counterclaim? Very few, if any. Therefore what has changed is that their lawyers have gotten smarter. That such change isn't legal grounds for getting justice is injustice.

Re:Eternal Justice

[Stormie]

The people who decided to avoid the risk and settle have no legal grounds for complaint when people who were willing to take the risk are now winning. "But we could've won too!" is answered by "Yes, if you'd fought. But you didn't, did you?".

Well, except that the overwhelming majority of the people who settled rather than fight were guilty.

Re:Eternal Justice

[asninn]

We're talking about adults, though (for the most part), and while justice is important, I also think it's fair to expect adults to show some common sense when it comes to settlements. If you're entering a settlement, well, then keep in mind that it's a SETTLEMENT; the whole idea is that the issue is, well, settled that way. If you don't want to settle, don't enter a settlement.

Of course, the legal system has certainly reached a point where it's impossible for a layperson to really make sense of everything without the help of a lawyer, and lawyers giving bad advice are a problem. But the choice is ultimately still with the client.

(On a side note, I never understood why people who're actually innocent settle, anyway. Yes, I know, a legal victory can be expensive, but if you're not guilty, then shouldn't you be able to recover your expenses when it becomes obvious that there was no actual evidence?)

Re:Eternal Justice

[Ihlosi]

(On a side note, I never understood why people who're actually innocent settle, anyway. Yes, I know, a legal victory can be expensive, but if you're not guilty, then shouldn't you be able to recover your expenses when it becomes obvious that there was no actual evidence?)

In the US, I'm afraid the answer to that question is a definite "maybe". If the cost of the settlement is significantly below (chance of recovering your legal expenses) * (expected legal expenses), the settlement might unfortunately be the cheaper choice.

Re:Eternal Justice

[Anonymous Coward]

No, none of the people who settled were guilty. The only thing they were guilty of was doing something a bully told them not to do.

Re:Eternal Justice

[Stormie]

No, none of the people who settled were guilty. The only thing they were guilty of was doing something a bully told them not to do.

..and which is also illegal.

Put Up, or Else

[Nom du Keyboard]

To be told to Put-Up, or Shut-Up and Pay-Up, should have been said long ago. The idea that a well-funded adversary can bankrupt their opponent for daring to oppose them while the case never even makes it to trial is the worst part of the American system of justice.

And while the defendants are at it, how long until someone calls the RIAA on their illegal joinder of John Doe defendants in the beginnings of these suits. Two years ago a judge told the RIAA to stop that, they they can't simply join unrelated defendants to save on their litigation costs, and the RIAA has blithely ignored that ruling and continued on their merry ways.

And did anyone see The Bay City Rollers (60's/70's band) lawsuit against Sony for not paying royalties today? Sony's excuse: We lost your contract and didn't know how much to pay you, so we've given you nothing! Puts to lie the claim that filesharers are ripping off the artists. The record companies appear to be doing that just fine on their own.

Re:Put Up, or Else

[thewils]

Surely a better argument against the Bay City Rollers would be "What!!! you called that music!!!!"

To those people who are too young to know of the Bay City Rollers I say - you lucky, lucky bastards.

Re:Put Up, or Else

[hondo77]

Sorry but "Saturday Night" and their version of "I Only Want to Be With You" are great pop songs.

Re:Put Up, or Else

[raehl]

great pop songs

Also known as 'shit 12-year-old girls listen to'.

Re:Put Up, or Else

[hondo77]

Also known as 'shit 12-year-old girls listen to'.

No. The Beatles made great pop songs that they knew were commercial ("A Hard Day's Night" comes to mind). That doesn't stop them from being great pop songs. Heck, if a song isn't commercial it probably can't be considered a pop song. Sorry, hardcore dude, but I can't listen to my Motorhead collection all the time.

Re:Put Up, or Else

[kcbrown]

The idea that a well-funded adversary can bankrupt their opponent for daring to oppose them while the case never even makes it to trial is the worst part of the American system of justice.

It's not a "justice system", it's a "legal system". That should make it clear who the system really serves.

Re:Put Up, or Else

[Gazzonyx]

...are great pop songs.

Precisely.

Although, I have 'guilty pleasure' pop songs that I break out when no one is around, so I have no room to talk. I just couldn't resist the urge...Sorry.

Don't cheer too loudly

[Orion_II]

It would seem as though the RIAA is getting quite a number of cases like this, IE: http://yro.slashdot.org/article.pl?sid=07/02/07/23 25204
On the surface, it seems like they're going down, and we may see an end to thier lawsuits

Or, it might be a set-up for a massive media parade.
They might continue the trend, but hold back evidence on purpose in a few cases. Then, BAM! hit back-to-back victories with careful planning, along with some careful media orchestration (particularly if you throw in words like "Prejudice" or "mistrial"), it could quickly sway public opinion back in thier favour.
Certainly, most /. er's would see through this quite easily, but your average joe isn't as well informed. A good dose of media hype might earn them some political and legal victories they need to tighten thier grip.

However, I sincerely hope that this isn't the case.

Re:Don't cheer too loudly

[rossz]

Holding back evidence, especially when used for tricky maneuvering in the court, is highly frowned upon by our legal system. There's something called full disclosure. Judges often exclude the held back evidence from being used.

Re:Don't cheer too loudly

[78 105 107]

But the tighter their grip, the more starsystems*cough* I mean file-shares fall through their grasp.

Re:Don't cheer too loudly

[Dun Malg]

They might continue the trend, but hold back evidence on purpose in a few cases. Holding back evidence is a big no-no.

The RIAA is a business

[ZoOnI]

As a business that represents other companies it's in their best interest to create a profit and stop Internet piracy. They are trying a few greasy tricks to make money.

1. Try and get standard settlements that more than recoup court costs, like the ridiculous $750 per song fines.
2. Attack those who don't have the time and money to defend them selves like students.
3. Yet another tactic is to try and blanket charge a whole lot of folks hoping some will cough up the money with no court date.
4. Attack folks with little or no evidence hoping for an out of court settlement then back out if the defendant gets a lawyer.

This is business at its worst. Someone should go after these guys with a class action suit or set up a fake file sharing site to lure them into a case they will lose.

Re:The RIAA is a business

[RobBebop]

How could a class action lawsuit of "People vs RIAA" work when the "people" have mostly previously settled with the RIAA? This seems laughable. The problem is that the majority of the accused are music pirates. Part of the root of the problem is that there are popular songs out there that are owned by organizations that don't want you to hear the songs unless you pony up the cash. The sad fact is that as a business, the RIAA member organizations are free to pursue judgement regarding their dishonorable copyright contracts because they have bought the rights to these songs. Whenever an artist sells out to an RIAA member organization, it hurts the culture of music.

Re:The RIAA is a business

[SanityInAnarchy]

How could a class action lawsuit of "People vs RIAA" work when the "people" have mostly previously settled with the RIAA?

Because more people are getting sued by them all the time.

The problem is that the majority of the accused are music pirates.

What is your basis for this?

The sad fact is that as a business, the RIAA member organizations are free to pursue judgement regarding their dishonorable copyright contracts because they have bought the rights to these songs.

The sad fact is, you're making the wrong argument here. That they have bought the legal rights to these songs is completely irrelevant to them suing people who have never used a computer, people who are dead, people who don't know what filesharing is, and people who maybe have shared files, but not the ones they're talking about -- and of course, innocent but tech-savvy people.

They have the right to go after people that they know are stealing their stuff. They do not have the right to just arbitrarily pick a target and sue them for filesharing, and see what happens when they scan the person's hard drive. Even if everyone in the world was sharing files, the RIAA would not have that right.

Re:The RIAA is a business

[RobBebop]

Just to be clear, I agree that the fact that the RIAA sues people who don't own computers is reprehensible. > They have the right to go after people that they know are stealing their stuff. I also agree with this statement, you made. My point was the belief that the majority of the accused have, at one time or another, used a P2P file sharing system to obtain a song that the RIAA holds copyright on to to restrict this free distribution. My stance on the issue, overall, is to try to ignore artists signed to RIAA member companies and support shows/albums/merch of bands who don't sign with the RIAA and understand that free distribution of digital music is a powerful advertizement for the shows/albums/merch that they can sell to support them while they practice the art they love (i.e. making music).

Re:The RIAA is a business

[NewYorkCountryLawyer]

Would like to clarify something you said. There is, in fact, nothing whatsoever in the RIAA's investigation which would indicate whether the defendant "used a P2P file sharing system to obtain a song that the RIAA holds copyright on". They have no evidence at all as to (a) how the files in the screenshot were obtained, (b) who obtained them, or even (c) whether they were on a single computer or on a number of different computers in different places. See, e.g., RIAA expert witness deposition.

Re:The RIAA is a business

[SanityInAnarchy]

My point was the belief that the majority of the accused have, at one time or another, used a P2P file sharing system to obtain a song that the RIAA holds copyright on to to restrict this free distribution.

I understand that, and I understand that you're not implying that all of the accused have stolen the specific file they've been accused of stealing (but rather, that they have pirated at one time).

Again: Do you have any basis for this belief?

Somethng not mentioned

[kckman]

By promising not to pursue further litigation, does this mean that the defendants would be free to music share and download without fear?

Re:Somethng not mentioned

[chebucto]

Probably not. First, the RIAA dropping charges has no bearing on common law; only judgments can affect that. Also, if they drop the charges due to lack of evidence, or because they no longer think the accused actually infringed copyright, they would not be excusing infringement. Rather, they would be saying that - in the particular case in question - it never took place.

Also, any change in the laws - which is necessary if people are going to be able to file-share in peace - will have to be done by the legislature.

Re:Somethng not mentioned

[jimicus]

If a case of assault against you is dropped, does that mean you can now go and assualt whoever you like without fear?

RIAA Lawyers Confused

[NewYorkCountryLawyer]

The RIAA lawyers seem to be confused. Last week they were adamantly fighting for their withdrawal of the case to be "without prejudice" -- i.e. so that they could pursue it again. This week they're willing to "covenant not to sue". It seems to me that they are just flaking out.

The RIAA is a front

[KwKSilver]

RIAA is just a fictional front for the recording industry. It is acting as the legal agent of the recording companies. If the RIAA gets caught with its pants down in some of these cases, it makes sense that the victims should be able not only countersue the RIAA, but also Columbia, SONY--or whoever, as well. The person who hires an agent may be responsible for the agent's actions: if I hire you as a bodyguard, and then tell you to kill my ex-wife, I can and will be held just as responsible as you. The RIAA's pockets may not be that deep but SONY's et al. are. If the RIAA's puppet-masters get burned badly enough and frequently enough, they will drop this phony bullcrap. The recording indistry sales aren't falling because of piracy, they are falling because they dish up nothing but worthless shit. I haven't bought a CD in years, BUT I have never downloaded a single song--because I wouldn't pollute my hard-drive with that crap. The sooner the recording industry dies, the sooner real music will have a chance.

Re:The RIAA is a front

[Anonymous Coward]

It is acting as the legal agent of the recording companies. If the RIAA gets caught with its pants down in some of these cases, it makes sense that the victims should be able not only countersue the RIAA, but also Columbia, SONY--or whoever, as well.

What? Is the RIAA named in any of the cases? Have a look at this list of cases, and tell me how many are "RIAA v...". How many did you find? That's right, zero. In every case it is the record company not the RIAA doing the suing. For example, SONY v. DeMaria, or Capitol Records v. Foster. As such, the defendants are free to introduce counterclaims against the record companies, just as you suggest.

One word:

[Shaltenn]

Precdent.

Re:One word:

[Anonymous Coward]

lol good try

Think of the trees!

[iMySti]

Somebody should figure out how much paper is used for each of the RIAAs cases, multiply that by the kajillion cases they've filed and call them out for destroying the rainforest!

Double Jeopardy?

[SanityInAnarchy]

Was a movie about this. Premise was, someone was convicted of killing her husband, went to prison, served a sentence, got out, and found he was alive -- but she'd already been convicted of killing him, so she was free to do that.

I don't think that applies here for a couple of reasons. First, defendants were not found guilty, so no double jeopardy -- and also not found 'not guilty', yet. But more importantly, I imagine they count as different crimes -- not guilty for downloading it in 2005, but maybe guilty when downloaded again in 2007. Or maybe it was a different file...

Re:Double Jeopardy?

[Builder]

And the main reason Double Jeopardy doesn't apply? Because it's a civil case not a criminal case!

Why do they even bother?

[sunspot42]

The RIAA is doomed. Why are they wasting any money on these idiotic lawsuits? Kids are now trading 60, 120, 160 and even 500GB drives full of mp3 or aac files, or even FLAC or Apple Lossless files. They don't even trade the files online anymore. They just pass whole drives around their circle of friends. They buy CDs used, rip 'em and then sell 'em back.

Within a year or so 500GB drives will be selling for around $100. Even at 256kbps, that'll hold an immense music library. The RIAA's biggest customers - high school and college kids - will have easy access to terabytes of free music.

It's over. Stick a fork in the record companies. They're done.

The MPAA is next.

Re:Why do they even bother?

[glindsey]

Within a year? Fry's already sells 400GB SATAs for $99, and 500GB for $139. Time to outlaw the sale of large hard drives, I guess.

Re:Why do they even bother?

[Nom du Keyboard]

Time to outlaw the sale of large hard drives, I guess.

I would expect instead for the RIAA to push for a huge "blank media" tax, as have their similar organizations in other countries. After all, if they can tax every blank CD (see Canada) regardless of what you put on it, hard drives are next. And while they've been turned back in this quest, especially in regard to MP3 players, they never stop trying.

Re:Why do they even bother?

[RalphTheWonderLlama]

500 GB drives are at $110 now if you're a slickdealer.

Re:Why do they even bother?

[RalphTheWonderLlama]

Time for a new business model.

Re:Why do they even bother?

[sunspot42]

I was thinking external drives, not internal. It takes a little bit of tech savvy to swap internal drives, but anyone can plug in a USB drive.

Baloney.

[Ihlosi]

... and that would mean only very very very rich people would ever dare to sue anyone.

That's baloney. I don't know why this is mentioned every time someone suggests America changing to "loser pays".

The system works well in other places. It doesn't stop people from dragging their neighbors to court over garden gnomes, branches that grow across the fence, or the number of allowed barbecues during the summer.

It also prevents the party with more money from bleeding the party with less money dry by slapping them with one lawsuit after the other, but losing each of them.

If I didn't do anything wrong, and the court confirms that, why the heck should I have to pay for anything ? If someone runs a red light and hits my car, it's not my job to pay for the damage to my car either.

Yes, but when you're filing lawsuit after lawsuit

[Joce640k]

>"A blanket rule like "person who drops the case pays all costs" is going to
> put off anyone who can't afford to take that risk - mainly individuals who
> really need the protection of the courts."

Individuals, sure, but when you're a big corporation who's filing lawsuit after lawsuit somebody eventually has to say "wait a minute..."

Way to read the thread

[psxndc]

There's a 100% chance foochee already used this joke. gg.

I'll reiterate my point. Slashdot is full of armchair lawyers. After spending one year in law school it was evident that a large percentage (vague enough for you?) of the people posting did not know what they were talking about. That was three years ago. Reading the comments attached to this thread, /. hasn't improved.

Show me the employment statistics of slashdot's readership and I'll be happy to say "since ___% of you aren't lawyers..."

But congratulations on missing the actual discussion and focusing instead on my obvious exaggeration to the point you felt you needed to reply. Hope you found it time well-spent.

-p-

Re:Way to read the thread

[BlueTrin]

I should have added that I agree with you, but I didn't see the point to post /agree, although I forgot /joke ...

You cannot expect /. to have a good knowledge of legal issues, most of the peeps here will go for logical conclusions as we are mostly people with maths/computer/physics background ...

To stay on topic, you could argue that you could make it easier to file a complaint against frivolous lawsuits, but the real problem is to prove that the plaintiff sued you without real reasons.

I work in trading and you could relate that to insider trading rules ... Insider trading is very hard to prove and most of the peeps caught in insider trading are only the ones who did it in a too "obvious way". The most used defense against insider trading is just to say :

• - that either you didn't know it

• - that you were not using insider information

In any case, the plaintiff (the SEC for you, the FSA for me), will have to prove, in a clear and irrefutable way, that you were actually involved in insider dealing, and unless they seize some emails or some other proof, it is nearly impossible to prove that you were actually involved in insider dealing.

To finish with that parallel, it would be very hard, in front of a court to prove that the plaintiff knew and was doing a lawsuit without real reasons for it. In the UK, the FSA which regulates trading rules, has implemented a series of civil penalties in addition of the older criminal penalties, because proving intention (criminal penalties) is much harder than seeking fines from the companies for bad behavior and consequences (civil penalties).

Re:Way to read the thread

[psxndc]

/agree

;-)

-p-

A rich person is more limited

[Anonymous Coward]

If the rich person actually loses, they can be fined ALL their estate. They can be jailed. They can be forced in to labour for the public good (Naomi Campbell). A corporation can't be fined that much (by practice more than law) can't be jailed (when was the last time a corporation lost its license?) and they can't be forced to work.

The people who made these decisions generally cannot be taken to task (even Ken Lay "died" and the estate is trying to get him exonerated) so even if the corporation WERE "killed" they would merely find another job.

And as to having a black mark, what about one of the Guiness directors that were jailed for fraud, found to have Alzheimers and released on compassionate grounds (hey, it isn't altzheimers, it just LOOKED like it) and then got a new job as a director, despite having appeared to be losing their faculties and having defrauded their previous company.

Re:A rich person is more limited

[khallow]

The officers of the corporation can be so fined. As can the lawyers involved. A second person can be funded piecemeal by a rich supporter to act as a proxy for the lawsuits and assuming the risk. This is pretty much what is happening and it's not a result of corporate law. And this ignores, of course, that the assets of the RIAA aren't in danger.

The people who made these decisions generally cannot be taken to task (even Ken Lay "died" and the estate is trying to get him exonerated) so even if the corporation WERE "killed" they would merely find another job.

That is unsupported by the evidence you give since you just list people who were jailed for their activities as corporate officers.

And as to having a black mark, what about one of the Guiness directors that were jailed for fraud, found to have Alzheimers and released on compassionate grounds (hey, it isn't altzheimers, it just LOOKED like it) and then got a new job as a director, despite having appeared to be losing their faculties and having defrauded their previous company.

That was a UK case. And Ernest Sanders's dodge had nothing to do with corporate law.

IMHO you are mistaking a percularity of corporate law (the legal fiction that corporations are treated as people for various purposes) for a fundamental problem. Namely that rich people have a number of ways of dodging responsibility for various sorts of criminal acts and that punishment for these actions isn't sufficiently harsh. My point here is that if we go through the complex process of adjusting corporate law to fulfill this little fantasy and still have viable business law, we still haven't done anything about the real problem of people evading responsibility for their actions.

Give it up. He pwnd you.

[Anonymous Coward]

Stop it already. Your initial comments made you look like an ass, this is not making you look smarter. At a certain point, you just shut up and go away, hopefully a little smarter from the exchange. Sheesh.

Oh, and the fact that you passed some paralegal classes makes you a glorified secretary. But I'm guessing you don't really have the legs to pull it off.

"Majority of physicians?" I call bullshit.

[dpbsmith]

"You might think that no one would want to see a lawyer or doctor who had lost a malpractice case, but if that was the case the majority of physicians in the US would not be practicing today."

Majority of physicians That's nonsense. In Massachusetts, and probably many other states, you can look this up online.

My personal physician, Dr. X, "has not made a payment on a malpractice claim in Massachusetts in the past ten years." Of two surgeons who have operated on me in the last year, one of them,

Dr. Y, a very-high-volume practitioner in a specific specialty, "has not made a payment on a malpractice claim in Massachusetts in the past ten years." A listing for a different doctor in this same specialty says: Number of MA Physicians Licensed in this Specialty: 166; Number Who Made Malpractice Payments in the Last Ten Years: 24 (14.4 %).

For Dr. Z, a general surgeon, it says Number of MA Physicians Licensed in this Specialty: 1171; Number Who Made
Malpractice Payments in the Last Ten Years: 129 (11 %); Number of Payments for this Doctor: 1 Payment Details for this Doctor: Date 4/8/1999; Category of Payment: Average

Is it extremely rare for a doctor to have made a single malpractice payment? No. Have a majority of doctors made them? No. Are malpractice-free careers common? Yes.

Disagreed

[Anonymous Coward]

They love it that the RIAA is catching all the shit (because the RIAA doesn't sell to the public so it doesn't matter if the RIAA has a horrible reputation amongst the public). However, if people understand that the record companies are the ones spamming the courts, maybe the right people will be the object of vilification.

While the record companies may "love" that the RIAA is seen as the offending party by a large majority of consumers, I'll assure you that they do not love the situation. They prefer that the RIAA gets incorrectly blamed for filing lawsuits, but the resulting public backlash against the RIAA (i.e. reduced sales) hits the record companies just as hard. In the end, if the record companies were blamed for these lawsuits instead of the RIAA, the effects on the industry would be the same and both the RIAA and the record companies would continue to fight their loss of profit as they do now.

just an idea

[Coraon]

I think the people who use the internet (read all of you) should start a class action agenst the RIAA for a slander suit, after all it seems like whenever they indentify anyone online they sue them...just because your online dosnt mean your a priate.