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RIAA Conceals Overturned Case
NewYorkCountryLawyer writes "When a Judge agreed with the RIAA's claim that 'making available' was actionable under the Copyright Act, in Atlantic v. Howell, the RIAA was quick to bring this 'authority' to the attention of the judges in Elektra v. Barker and Warner v. Cassin. Those judges were considering the same issue. When the that decision was overturned successfully, however, they were not so quick to inform those same judges of this new development. When the defendants' lawyers found out — a week after the RIAA's lawyers learned of it — they had to notify the judges themselves . At this moment we can only speculate as to what legal authorities they cited to the judge in Duluth, Minnesota, to get him to instruct the jurors that just 'making available' was good enough."
IAAL, and I've worked directly for judges. This won't win the RIAA lawyers any friends on the bench.
There is an ethical obligation to inform the court of legal authority (cases) in the controlling jurisdiction (same state, or federal circuit, for example) known to the lawyer to be directly adverse to the position of the client. See ABA Model Rules of Professional Conduct, Rule 3.3(a)(2).
Rule 3.3(a)(3) prohibits offering "false evidence." Not quite on point, because legal authority is not "evidence".
The commentary suggests that a "lawyer must not allow the tribunal to be misled by false statement of law or fact or evidence that the lawyer knows to be false." Rule 3.3, cmt. 2. That's pretty inclusive, and I'd feel comfortable arguing that failing to disclose the reversal of authority you've previous cited is an ethical violation. A referal to the state bar commission could be in order here, and let them sort it out.
Well, our country is a representative republic. In other words, we dont vote on laws. We vote "Congressmen" and presidents in for that instead.
We have 3 branches of Govt: Congress, Judicial, and Executive.
Congress is a bicameral entity (similar to the house of lords and commons in the UK). Senate (one of those bodies) is comprised of 100 members. There are 2 from each state, so that every state has equal representation.
The other part of Congress is the House. It is made up of 435 members, representing population makeup through the states. This is so that more populated states can influence the law more, as there is more people affected by the law.
The executive branch represents the President, bureaucrats and others in executing laws made by Congress, however that idea has been perverted. The way the US looks now, the Executive branch (President) looks like they are the Judge, jury and executioner.
The way a law is passed: Congress writes a law (well, House and Senate write their own versions which must be arbitrated by committee). When/if law is passed by a simple majority, 50% +1, then said law goes to the presidents desk. If president signs, it is a law. If not, it is sent back to Congress for a 67% majority to veto the presidents choice.
The last branch is Judicial. They are the ones to rule on laws and breakings of said laws. The highest court is the Supreme Court, which there are 9 appointed judges (appointed by the Senate) which have lifetime seats. They rule purely on Constitutionality of laws passed by Congress. They have the ability to pass judgment on laws, strike them down, or define unclear terms. Many see that the Supreme court is probably more powerful than Congress or the Presidency.
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Now, how companies pass "Laws" as you probably have heard on Slashdot:
Congress doesnt exist in a vacuum, but instead well entrenched and 'sponsored' by different entities and interests. For example, Maine (a state) has heavy lumber interests, so the lumber industry donates money to the said political party. Even though there is no obligation for the party to do anything, they do the lumber entities interests in making law favorable to them.
Some lobbies have grown extremely powerful. For example, the RIAA is a lobby group brought forth by the Big 5 media companies. Big Pharma is another lobby, mainly on medical drugs. These companies and groups can literally buy laws by supporting both parties (the Republicans and Democrats) with their money coffers.
For indiduals, we have no recourse for bad laws other than voting the congress/president in or out
When a lawyer submits a case to the Court, and then discovers that the case was overturned, he is obligated to notify the Court immediately.
Ray Beckerman +5 Insightful
She has plenty of grounds for an appeal. E.g.,
-incorrect jury instructions which removed the plaintiffs' burden of proving a transfer of actual files
-the unconstitutionality of a verdict for about 30,000 times the actual damage, and
-allowing an "expert" to testify who doesn't meet the admissibility requirements under the Federal Rules.
I'm sure there were many others, but I wasn't there so I can't give you the list. I can tell you that the above three would be sufficient -- in fact each would be sufficient on its own -- to get a reversal.
Ray Beckerman +5 Insightful
When they sent the judge a copy of the case.... and they found out the decision had been vacated by the judge who issued it.... yes they had an obligation to notify the Court immediately.
Ray Beckerman +5 Insightful
They have a profesional responsabiliy (as lawyers) to inform the court when an authority they cited in support of their legal case gets overturned.
-GiH
I don't know how to break this to you but
-copyright infringement is NOT a crime
-the RIAA, thankfully, doesn't have the power to "prosecute" anyone, and
-if the RIAA had the ability to get the prosecutors interested in prosecuting these ridiculous cases, they would have done so already.
The Department of Justice stated in its brief in Elektra v. Barker that it DOES NOT PROSECUTE PEOPLE FOR "MAKING AVAILABLE" and that the only internet copyright prosecutions it has prosecuted were piracy cases.
Ray Beckerman +5 Insightful
1. It's more than a moral obligation, it's also a legal obligation.
2. The same RIAA lawyer is supervising, and aware of everything going on in, all 3 cases.
Ray Beckerman +5 Insightful
A lawyer is an "officer of the court" and must be truthful to the court. A lawyer must inform a court of law that is on point and contradicts his argument. He can argue for a change in the law or for a finding that it is unconstitutional, but he cannot simply ignore bad law in hopes of fooling a judge.
That doesn't mean there aren't lawyers who break the rules. But those of us who care about the profession do not admire attorneys who lie to judges, opposing counsel, or anyone else for that matter.
Yes, it's called an appeal. Seriously, appeals are not meant to be just a re-evaluation of the matter. It is generally assumed that the lower court did their job, and an appeal is only considered if there are matters of law that weren't obeyed in the trial process. This might indeed be such a circumstance.
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful