Judge Lets RIAA Subpoena Defendant's Employer

NewYorkCountryLawyer writes "A judge has ruled that the RIAA can subpoena the defendant's employer in a case pending in Manhattan federal court, Atlantic v. Shutovsky. The judge's order (pdf) contained eight separate rulings deciding 19 pages of discovery disputes (pdf), resolving virtually all of them in favor of the RIAA. Other decisions made include: 'The plaintiffs were permitted to take depositions of Mr. Shutovsky's wife and his brother. Plaintiffs were required to produce all non-privileged documents or materials relating to any investigation and any sound files on their computer, and to produce a privilege log as to any claimed to be privileged. Defendant was required to provide the name and address of each person who used his computer during the three years prior to commencement of the lawsuit.'"

Comments

Re:Do your own damned work.

[cpt kangarooski]

I don't often say this, but LOL.

A statute on how the Copyright Office determines statutory royalty rates (e.g. how much per song internet radio stations have to pay the copyright holders, in order to play them) is as irrelevant to a downloading case as the price of tea in China. Copyright Royalty Judges are just ALJs, not Article III judges. You clearly have no idea whatsoever what you're talking about, and no idea of how to find out. You probably just googled the Copyright Act for anything related to production.

What you actually want to look at for this case, are Federal Rules of Civil Procedure, which set forth the rules for discovery. You can find them here.

I'll give you this, however: that was the stupidest thing I've seen on /. all week.

Re:Do your own damned work.

[NewYorkCountryLawyer]

Last I checked, the RIAA has never ever gone after downloaders, only people sharing songs. For that purpose it doesn't matter much where the songs came from, since you certainly didn't buy the right to distribute them. Since it's a civil case and it means "preponderance of evidence", you need something that'll negate their weak evidence. Options: a) It's not the song you claim it to be (most P2P networks have hash checks though) b) It's not the correct IP address (the ISP must have made a mistake) c) It's not any of my computers (open WiFi, guest using my network) d) I wasn't in control of the computer, a trojan must have done it e) I wasn't in control of the computer, my friends/family/guests must have done it f) I wasn't aware I was sharing copyrighted works (but that only limits the liability) Their evidence leaks all ways, but they are trying to patch it up in all directions. Evidence?

Did you say evidence?

They don't have any evidence.

Re:Do your own damned work.

[cpt kangarooski]

Ok, since you're the lawyer can you show me a link where it says that the burden of proof rests with the defendant?

Well, let's start with that. Laypeople generally don't understand certain procedural aspects of the legal system. A lot of people will say 'burden of proof,' sometimes even lawyers (although then it's a sort of lazy, highly contextual shorthand), but technically there's no such thing.

There is a burden of persuasion, there are evidentiary burdens, and there is a standard of proof. They're all different things, though significantly interconnected. The burden of persuasion is the burden of a party to prove its claims. For example, when we say that people are considered innocent until proven guilty, it merely means that the prosecution has to convince a jury of guilt, nothing more. Evidentiary burdens are used for proving that specific facts are as a party claims; for example, in a copyright suit, the plaintiff begins with the burden of having to show that he is the copyright holder (or otherwise has a right to sue in the first place). If that burden is satisfied, then the burden may shift to the defendant who can try to rebut it with proof to the contrary; if he succeeds, the burden shifts again, and so on. And the standard of proof is the standard which must be met in order for a burden to be met. In a typical civil case, it'll be a preponderance of the evidence (i.e. more likely than not, even if only by the slightest amount). In a criminal case, it'll be beyond a reasonable doubt, which is a much higher standard.

But in any event, while we are talking about the discovery portion of a case, where the two sides are engaged in gathering the evidence that they need, I really don't see your point. On TV you have things like surprise evidence or witnesses, gathered and presented at the last moment for dramatic tension. This is unrealistic. In fact, by the time a trial actually begins, both sides will routinely know exactly what evidence will be presented, what testimony will be given, and have a pretty good idea of the ultimate outcome. This is part of the reason why most cases don't get to trial; it's more common for one side to know it'll win and the other to know it'll lose, and for them to want to come to some agreement without wasting time and money drawing it out. The discovery rules are meant to facilitate this; in a proper trial, there are no surprises.

So we have things like Rule 26(a), which requires each party to voluntarily give a lot of information to the other side without having to be asked about it, 26(b), which allows any party to get all probative non-privileged evidence, or even non-admissible evidence which will lead to admissible evidence. If the other side has a good reason, they can object to it and the whole thing gets hashed out by the judge, as we see here. But generally the US is extremely plaintiff-friendly and has extremely broad discovery, compared to much of the rest of the world.

I think the technical term is reading, I mean the law is all written down right? That is the idea behind self representation isn't it?

There's a reason why pro se litigants are so heavily discouraged. Yes, it's all written down. But then, you might as well try to learn how to use a spreadsheet program by diligently reading through the source code. It takes about three years of hard work for people to become lawyers, and that's with the benefit of people teaching them. And even then, a smart baby lawyer is going to find someone more experienced to work with so that he can learn the important practical aspects of the law which are generally ignored in school, in favor of the higher level concepts. And one of the first things you get taught is how to do proper research, often using tools which are specialized and not available to everyone. (For example, Google is crap for legal research, really. Westlaw and Lexis have it beat, both in terms of what's in their database, and the power and flexibility of the search queries. Of course, you have to pay to u