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Judge Says No to RIAA Subpoena Request
NewYorkCountryLawyer writes "For at least the second time, a federal judge has dealt the RIAA's campaign against college students a blow by refusing an ex parte motion by the RIAA for a subpoena against college students. In Newport News, Virginia, Judge Walter D. Kelley, Jr., denied the RIAA's motion for information about students at the College of William and Mary. The Court denied the motion outright, saying it was unauthorized by law. (pdf) Last month it was reported that a New Mexico judge had denied a similar motion directed against University of New Mexico students on the ground that it should not have been made ex parte."
It is most gratifying to see a Judge deny an ex parte application like that. I.e., only the RIAA was in court. No one else -- not the students, not even the university -- knew about it or had a chance to say anything.
This is an example of a good judge doing his homework and actually reading the statutes, and not being impressed by pounds of paper and doubletalk.
I am very happy to see judges like Judge Kelley and Judge Garcia taking a close look, and saying to the RIAA thugs : "Wait a minute, this is still a court of law, not a schoolyard where bullies can just do whatever they want to defenseless people. We have a rule of law, here, buddy."
Ray Beckerman +5 Insightful
"ex parte motion"
Quick show of hands. How many know what the above is without Googling?
The thought just occurred to me the RIAA would like the IP address and every school attendee simply to selectively enforce it. The last thing the RIAA wants to do is go after someone from a family of rich lawyers.... they want the ones that can't afford to fight. Or perhaps daddy might pass a law...
RIAA paracites.
not interpret it.
UW had to give in so easily why now...?
Need help treating your acne? Come here!
The whole thing is a protection racket (and EVERYBODY needs protection from these guys [if I was Judge Garcia, I would look in my bed for horse's heads.])
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
"They find it inconvenient if someone else shows up to tell the judges the truth."
Like who?
Stung by criticism that it was utilizing unlicensed private investigators in order to track down alleged online copyright violators, the RIAA has admitted to "improperly obtaining" user data, and in an unusual near-apology, vowed to clean up its act. "It is time to face the music. We must stop the pursuit of personal destruction and the prying into private lives and get on with our national life. Our country has been distracted by this matter for too long, and I take my responsibility for my part in all of this. That is all I can do," said Mitch Bainwol, Chairman and CEO of the RIAA. Bainwole went on to say, "We have important work to do -- real pirated CDs to seize, real problems to solve, real security matters to face. I now ask you to turn away from the spectacle of the past eighteen months, to repair the fabric of our national discourse, and to return our attention to all the challenges and all the promise of upcoming American entertainment that will be brought to you by RIAA members.
On the same day, the RIAA also announced new software it would make available as a free download called riaaBuddy.
riaaBuddy is an on-screen "intelligent software agent" created by the RIAA, and based upon Microsoft Agent [wikipedia.org] technology. The goal of the program is to help users enrich their online musical experience as they discover digital music together with the included "riaaBuddy," which is an animated, purple Sheryl Crow. Users can interact with Sheryl by asking her questions, get recommendations on new music released by RIAA artist, as well as be politely informed when unapproved websites are loaded.
Other features include, an integrated download tracker, music-related themes, desktops, screen savers, and cute, animated emoticons, bearing a resemblance to top-selling RIAA artists. Also included is a desktop search utility that indexes a hard drive's contents in order to allow the user to easily perform searches.
While initial response to the program has been positive, a few early users complain that the program is buggy. The purple Sheryl Crow is said to only be able to sing the song Daisy Bell. "The program keeps changing my home page to a crappy RIAA home page," said one teenager who wished to remain anonymous out of fear of a RIAA-sponsored lawsuit. There have also been complaints of an increase in pop-up advertising.
Doctors destroy health, lawyers destroy justice, universities destroy knowledge, religion destroys spirituality
INMSFBHO?
If they were enormously soft and furry...
I'd lay them down by the fire,
and caress their womanly man-butts!!!!
WooHoo!!! Partee!!!!!
I now ask you to turn away from the spectacle of the past eighteen months,
No! You have taken actions that caused great harm. You MUST be punished for them, and pay restitution for them. I see no reason whatsoever why I should simply forget the illegal and harmful things you have been doing, and then continue to abide your harmful antics.
You do not deserve to escape justice.
Will they ever get in trouble for all this ex parte crap? I fear that they'll keep pulling the same tricks until they get punished for it, and no one thus far has taken any note of that Texas ruling ordering them not to join all these unrelated cases together.
If only the University of Washington would step up and stop being such pussies. Bastards.
So today we're FOR the law? I guess only when it's convenient. That's the Slashdot way.
The judge's ruling seemed to suggest that the RIAA's blatantly misleading filing borders on perpetrating a fraud on the court. It almost seems lucky the weren't cited for contempt.
While everyone can agree that it's wrong for the RIAA to prosecute people who do not have the means to commit copyright infringement, let's not forget that it's still against the law when it happens, and it does happen, especially in university network settings. Slashdot is, in general, a technical and smart crowd, let's not pull the wool over our own eyes. It just makes us look foolish.
Interested in open source engine management for your Subaru?
"W&M has a tendency to cave in, such as to the NCAA regarding the use of Indian logos and the recent temporary removal (until deep-pocket alumni demanded its return) of a cross from the on-campus [emphasis mine]"
And yet strangely most of slashdot remains silent.
>
The judge does that, it's his area.
The jury takes care of the "who's telling the truth" bit.
I don't see them stopping over small matters of money. Unless it's a sanction they'll have to list on every pro hac vice application from here on out, I just don't see any of the lawyers standing up and saying, "I don't think this is such a good idea."
That's a good point and I hope you get modded up. There's more than one way to read GP's experience: racism is one explanation, but subverting the ``war on drugs'' and ``three-strikes-you're-out'' rule is another. Lots of people think those two policies are unjust, perhaps unconstitutional. Why should a juror refrain from deconstructing the system a bit if the system is broken? This is one way that the judiciary gets to check-and-balance the other branches of government. To play by the book or not is a choice that is in the juror's hand; the juror has power. It's up to the juror to wield that power justly. I think that it's okay to wield that power, and that nullification is not a dirty word: just like presidents and governors have the power to pardon anyone, a jury has a comparable power to convict or acquit for one case. Of course the system frowns on nullification, and says it is wrong: but their voice is not the only one to listen to.
Likewise the GP's philosophy of carefully interpreting and applying the law, and playing within the system, is also defensible. That way enhances stability, protects the status quo, helps make the legal process predictable -- those all can be very, very good things. A totally unpredictable, unstable legal system does lots of harm. Playing by the book should be the norm. But when laws are unjust and the police are shady, it is naive to close your eyes and convict or acquit, saying, ``I was just playing by the rules.'' Whatever you choose to do, your choice is a political choice. Pretending that it isn't strengthens the status quo, which isn't automatically a good thing.
Melville churned through all this in Billy Budd, the popular novella.
$META_SIG_JOKE
Given the resources they have at their disposal, and given their ostensible reasons for existing, we'd all like to imagine that colleges/universities will stand and fight for truth and justice. The truth is, college and university administration officials generally have no interest in RIAA tactics. They only thing they really care about is money and covering their ass. I know this directly. If you hold your breath waiting for a college or university to buck up and fight the RIAA you'll die.
These days overrated seems to be used more for "I disagree with what you are saying but don't want to get metamoderated". Also you've become something of a celebrity on Slashdot, you don't have a whole lot to worry about getting modded down unless you go and flame someone out right or something like that.
What the jury does is determine if the law, as it is defined for them by the judge, is applicable. The judge interprets the law for them, through instructions. and directs them to determine if it applies. The jury determines if the evidence presented supports applying the law.
Neither the judge nor jury applies the law, the executive branch does through its enforcement agents (police and corrections).
IANAL, I just paid attention in civics class and have read the constitution.
The potato it is uninformed.
We're not for the law. We're more in favor of the opposition to the RIAssA's tactics of shotgun extortion. Their lawyers fire blasts in the general direction of IP Addresses and hit children, grand parents, and other innocents. The Recording Industry Ass. of America is right there in the same neighborhood as 419 scammers and pill spammers. They no longer serve purpose other than to flaunt their Monopoly.
Hey, your point of view is fine, and I'm not trying to take it away from you. Sure, it certainly could be racism. I wasn't there and I'll never know. All I'm saying is that there are always multiple ways to read the signs, and based on the story the way you told it, I can read that as possible jury nullification. I'm just reading your words and interpreting, which is all I can do anyway. And as I'm in a verbal mood, let me tell you why I think so.
Have you ever seen Rashomon ? What you saw in the courtroom differs from what your fellow jurors saw. Each one's view is refracted by the lenses of our upbringing, social context, desires, and so on. This distorts our perceptions of reality; it affects our observations and opinions. So it's easy for me to imagine hypothetical fellow jurors wearing lenses such that they would literally see the trial differently, say the words you quoted, and argue for acquittal, yet without being too motivated by racism -- even if they could not spell ``nullification.''
For one, a lot of people know that the war on drugs is a hypocritical monstrosity. Why does the CIA get to deal cocaine in Los Angeles, and produce opium in Central Asia, but that right is not extended to the citizens themselves? And seriously, how does the Commerce Clause apply to homegrown, home-smoked pot? Common sense revolts. If you ask me, the war on drugs is a perverse load of vile unconstitutional bunkum. No, I do not want to live near a crackhouse, but also I won't complicitly abet this absurd ``war.'' I don't have to accept one or the other: I want constitutional justice and social justice. I don't believe I have to give up one to get the other.
I could write a screed about the three-strikes rule also, but I'm less passionate about that one (I agree with SCOTUS, it's within states' rights). I think it's unjust too. If I had friends and relatives locked up for decades under three-strikes I would probably be hot under the collar about it as well.
There are a lot of people, even among the poorly educated and underclass, who are aware of the injustices of the present system. The idea of nullification is very simple: give the verdict that you think is right, regardless. When you report that one juror said, ``This is his third strike and I don't want to put him away for a long time,'' then nullification is one way to explain that statement (and so is racism). A juror doesn't have to know the term ``nullification'' to do it.
Agreed, illegal things are not legal. But who makes the laws? As a slashdot reader I'm sure you are aware that not everyone gets equal representation in legislatures. Why does minor-league crack possession get you an average sentence of 10.5 years, whereas after $400M of fraud, Dennis Kozlowski might be free after less than 9 years of prison? There's a gap between what's lawful and what's right. How big is the gap? Depends on your lenses.
I agree crack and heroin cause problems. I even think those drugs should be illegal. But everyone is gaming the system, and the people with power game the system the most. Disney extends the copyright term. The RIAA games the judicial system.* Enron and Worldcom cooked their books, till finally they went too far. The FBI abuses USAPATRIOT. Libby gets pardoned, and Rove doesn't even get charged. The President games Article II and the Attorney General denies the existen
$META_SIG_JOKE
Perhaps. I prefer to look at what makes them... unacceptable.
Their hanging out on street corners, harassing people, and causing trouble is what makes them unacceptable. And why are they hanging out on street corners, harassing people? Because they are dealing/using drugs.
But I've seen lots of alcoholics who behave the same way. Why are they different? The truth is they aren't(by any scientic measure) and many drug dealer and users don't act this way (really, the vast majority are indistinguishable from normal citizens. Remember to compare those on the street to homeless alcoholics, not everyone who drinks or employed alcoholics.) Charge them with the real crimes that bother you (and for some reason carry much lower sentences.) But from this you are an effect of the law, not a letter of the law type person.
For instance, it is legal for Americans to brew beer... up to 100 gallons per person in the household. An ounce more than that? Illegal. It's also illegal for people to distill alcohol.
You are a letter of the law type person then. My grandfather would distill his homemade wines when the taste came out poorly. He considered it a violation of his personal freedom that the government would try interfere with this activity. A juror other than you may decide a WWII vet who worked and paid taxes his whole life is not harmful to society or likely to be 'rehabilitated' by jail time even though he is technically guilty. Although they don't tell you this, this is the very important reason why juries are not made up of lawyers and judges. They want ordinary citizens to use common sense.
The street-corner dealer would have to turn to other methods of making money. Like mugging, robbing, 'protection' rackets, etc.
You may really want to check out what happened before, during and after Prohibition of alcohol if you believe this.
Perhaps the 'racist' jurors understood instinctively that market forces dictate that sending those men to prison will not significantly effect any of the detrimental effects on society you worry about, it will merely raise the street price of drugs until the position is once again filled by the most desperate/undesirable members of society.
Drug laws are also a classic example of racist laws. Cocaine is converted to crack at near 100% efficiency by simple processes like mixing cocaine with baking soda. Drug laws place a major drug offense at the possession of 500g of cocaine and 5g of crack. This allows a major distributor to possess say 250g of powder cocaine and receive only minor penalties but distribute it to 50 crack dealers who will receive major offense charges. Take a guess how racial/economic split of usage and selling goes for power and crack cocaine.
From following Groklaw, it seems that judges & lawyers like to layer their coverage. In this case the judge seems to be saying "This is dead. The statute you used to try to pull it doesn't allow it. Furthermore, the only statute I can find where you could do this, doesn't allow you to in this situation." If the RIAA wants to challenge this in the appeals court, they now not only have to show why this judge made a 'gross error of interpretation' in their statute, they also have to justify why his interpretation of the DMCA is wrong.
Perhaps worse, they can't come back & refile under the DMCA because he's just told them it won't work either.
The subpoena is illegal for more than just its ex parte and citing the wrong law aspects. It's also an illegal joinder of otherwise unrelated Doe defendants that a Texas judge ruled against and told them not to do any longer. The RIAA has blithely ignored that ruling since, and because it has all been ex parte, no one else has been able to point this out to future judges at this point in the proceedings.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Considering how quickly word passes among college students, how long before students at every college and university know that these subpoenas can be fought at the ex parte Doe stage, and how long before they demand that their universities do exactly that?
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Yeah, that loads right next to the RIAA Genuine Advantage program in my memory map.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
The ruling by the Texas judges is another subject matter. In that, the judges ruled the RIAA cannot sue multiple John Doe defendants in one lawsuit when the actions of the defendants were not related to each other. They had to sue each one individually. In this motion, the RIAA is asking the court to order the College or University to give the identities of the John Does without giving the College or University an opportunity to be heard.
Well, there's spam egg sausage and spam, that's not got much spam in it.