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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
My hand goes up. Ex parte is a very common legal term meaning to meet with a judge without both parties being present. Normally, no matter what the motion, when you meet with a judge, both sides get to be present. These subpoenas are being issued with only the RIAA being present.
Yep, the RIAA prefers to do everything the sneaky way.
They find it inconvenient if someone else shows up to tell the judges the truth.
Of course, as Judge Garcia was kind enough to point out, their "ex parte" tactics are illegal. Just a minor detail.
Ray Beckerman +5 Insightful
Or more likely, it was given up *while* he was asking the question. This isn't IRC, there's a bit of a delay between looking for other comments and posting your own.
UW had to give in so easily why now...?
Need help treating your acne? Come here!
That's a tough call. Judges don't make laws, lawmakers do that ... and frequently they do it badly. Giving the judiciary some wiggle-room can prevent abuse as much as permit it. Yeah, it's a double-edged sword.
The higher the technology, the sharper that two-edged sword.
Ray Beckerman +5 Insightful
As NewYorkCountryLawyer pointed out, this particular ex parte motion is illegal. There are very rare circumstances where ex parte communications are allowed. However these are generally the exception and not the rule as the Judge in New Mexico pointed out. In this case Judge Garcia pointed out the the DMCA was written for this exact situation and the RIAA should follow procedures outlined in the statute (which incidentally they helped to write and lobby).
Well, there's spam egg sausage and spam, that's not got much spam in it.
They're asking the judge to compel the university to do something, without having the university present to present objections. They know who the university is.
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
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.
The first time I was summoned to jury duty, I though 'hey, way to get paid for doing nothing!', and I was right. Three days sitting, reading a book, waiting to be called. Cool.
Second time, I got put on a case. To say I 'quickly became dis-enamored with the legal system' would be like saying 'upon exposure to heat, the gasoline rapidly oxidized'. True, but a major understatement.
It was a civil case, 6 jurors. A woman driving a mini-van backed into a pedestrian, knocking him down, breaking his collarbone. I could go on for hours describing the details, but the relevant facts are:
1) the man admited to leaving the crosswalk and walking diagonally down the road
2) the man's statements contradicted themselves, to the point he comitted perjury
3) In my opinion, the woman acted reasonably. She checked her side mirror, rear miror, and them turned her upper body and head so she could look out the rear window of the mini-van as she reversed. The fact that the man was in the middle of the block, in the middle of the street, in her blind spot, was not her fault.
4) the man was asking for over a half-million dollars, just for 'pain and suffering'.
Long story short, it was my opinion that, since the woman acted reasonably, and the man was the one who left the crosswalk (and later lied under oath), she owed him nothing. Unfortunately, the other 5 jurors did not see it that way. This was New York, a city where there are more pedestrians than drivers. I could practically see the $-signs in people eyes. I actually had one juror say 'If you got hit by a car, wouldn't you want to get compensated?' I replied 'I wouldn't expect money if I was the one at fault."
Since a civil case does not need a unanimous verdict, in the end we found for the plaintiff. Now the matter of how much came into play. The "ammount to adaquately compensate him for his losses" was determined (by the other 5) to be around $130,000. They knocked off 35% because they magnanamously agreed it was 'partly his fault' that he jay-walked behind a moving vehicle. That brought the award to abotu $100,000. Then one particularly bright juror piped up with thas shocked: "...but his lawyer will take 1/3, wo we have to give him more", like it's our job to pay the mans lawyer!! We didn't know the man's legal fees. Heck, the laywer could have been a friend doing it for free, for all we knew.
And then something happened that... put it all in perspective. Soemthing that made me realize why the jury system in this country, while it was no doubt a good idea when it was created, is no longer wise.
They decided to give him $133,000.
Now, dear reader, please take a moment to do the math. The jurors wanted to award the men 'X', such that when 1/3X was removed, the man ended up with $100,000.
100,000 = X - 1/3X
100,000 = 2/3X
3/2 * 100,000 = X
150,000 = x
I was doing this in 5th grade, but these MORONS couldn't even get this SIMPLE math right. I tried to correct tham. Twice. Then I shut up, since their error lowered the award I thought should be $0 anyway.
.
Don't even get me started on my 3rd jury duty. Undercover Cop had audio and video of the defendant selling him drugs on 6 out of 7 occasions (the first time they weren't recording as the UC was just supposed to meet the guy, but the guy was so eager to sell, he sold to the UC that time too.) They have video of him walking away counting the money, smiling. The defense ADMITTED the defendant handed over drugs for money on each occasion. Their only defense? 'AGENCY'- the man wasn't 'selling' drugs to the UC, he was 'purchasing drugs FOR the UC', as his 'agent'. Of course, the defendant seem to already have the drugs the UC wanted on hand, and the video of him counting the money, smiling, implies he was making a profit (making a profit from either side means he no longer met the legal definition of an 'agent'). Oh- and he'd been to jail 2 time before for... you guessed it, dealing drugs.
There was one minor marijuana charge w
Some laws are good and some laws are bad. Sometimes the law is applied properly and sometimes it's not. Some judges are honest and some are corrupt.
For once an honest judge applied a good law properly - so today we're for the law, that's the righteous way.
The last example you put forth is an example of the jury system working not the opposite. Drug laws suck for all intents and purposes. They do nothing good and have major negative effects. Being able to fuck over a law that is unjust as a juror can be a good thing. And in this case it was.
...the other two juros insisted on saying 'Not Guilty' for ALL counts. They outright REFUSED to discuss why they 'beleived' he was not guilty.
Could have been a case of nullification. I will do the same thing in drug and adult prostitution cases, and over copyright violations. I will never send somebody to jail over what I consider bad and unjust law. Never.
What?
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
Plus, it would be an easy matter for the RIAA to furnish the university, and for the university to send to the John Does, copies of (a) the summons and complaint, (b) the motion papers, and (c) the judge's rules -- i.e. all the things the rules say one is supposed to get when one is sued, and motion is made against one's interests.
Ray Beckerman +5 Insightful
I will agree with you that file sharing is illegal and that file sharing amounts to theft and that it occurs on college networks.
HOWEVER
You do not fight crime by committing a crime yourself. You do not shoot a jaywalker that walked in front of your car forcing you to slow down (hell, you should not even run them over). However, the RIAA feels that since the defendants in their opinion were committing a crime, they do not have to follow the process designed to make sure that the defendant is truly guilty.
They need to follow the processes of the court system and stop with the extortion letters (which are not settlements because you are not settling with the individual record companies) and stop with the selective enforcement. They also need to have all parties involved in the court cases rather than surprise people with a lawsuit that could have been avoided. They also need to follow legal precedent and make sure that their legal theories stand the test of time (secondary liability comes to mind). Finally, if the defendant decides to fight the charges, the RIAA/record companies should see the process the whole way through, or declare that the defendant is not guilty if discovery shows that to be true (rather than try to dismiss the case as if it never happened).
Simply put, one side committing a crime does not allow the other side free reign on that person.
Ray Beckerman +5 Insightful