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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."
The RIAA wouldn't sabotage their own chances in court? The humanity!
Slashdot - where whining about luck is the new way to make the world you want.
Personally, I would like to see someone march a slew of television and radio commercials from vendors and how you can "Share your favorite files, songs!" and sue the vendors who touted the abilities to do so by buying their products. How many advertisements has one seen from computer manufacturers and software developers telling people about the ability to store, share and "make available" their favorite files and songs.
Infiltrated dot Net
I'm not an American, so please forgive me if I'm not as knowledgeable of your legal system as you are.
But when are we going to have this stuff get to the point where we can see a real change?Just as soon as you do something about getting it changed.... What is required? Are you demanding it? Or is it someone else's problem? Please don't take offence, but I've read the stories here that you have. I agree, it isn't changing, but perhaps that's because no-one is making it happen.
Have a look at soylentnews.org for a different view
So it gets turned over on appeal...and it happens enough times that these lawsuits become a waste of their time. One can only hope that they start losing countersuits, finally getting a clue that their outdated business model that screws over artists and consumers has run its course.
What we really need here is the Gowachin Justice system where the winning lawyer kills the losing lawyer. It would certainly help cut down on stupid lawsuits.
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.
_____
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
Given that it might be either how about a reply instead of a mod for a change?
Let's get something straight - sharing copyrighted material is a crime, and if the the RIAA went about prosecuting just for that they wouldn't get half the flack that they do. But so far they have failed spectacularly to do so. Part of this is down to the basic structure of the internet - proving that party A shared a copyrighted file with party B beyond all reasonable doubt is hard. As they are pursuing civil actions they are going for the much easier burden of on the balance of probabilities. Unfortunately they are using the lack of knowledge in juries and judges to do so, rather than evidence of a crime.
If you present a printout of a screenshot of a file sharing client with my ip address and the name of song - that is not evidence.
Before you reach the evidence stage you need to provide:
A log of an ip transaction from a reputable source - ie a router at an ISP.
Proof that the file was not mislabeled - a hash of the transfer that shows the file contained copyrighted material.
Proof that the person being sued is responsible for files offered at that ip address.
Until then the RIAA is just pissing in the wind and winning temporarily until they get struck down on appeal.
Even if you show infringement of copyright, the "exponential" damages being asked for are absurd. Let's see a bandwidth breakdown from the ISP being converted into a "number of cds distributed" and then converted into damages.
Slashdot: where don knuth is an idiot because he cant grasp the awesome power of php
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
It is highly improper. If a lawyer sends a copy of an authority to a judge, and then learns that the authority was vacated by the judge who wrote it, while there is still a motion pending on the judge's desk, he is obligated to immediately notify the judge of the change. A lawyer is not only a representative of the client; he is also an officer of the Court.
Ray Beckerman +5 Insightful
That's litigation. Along the way everybody wins some battles, and loses some battles.
Ray Beckerman +5 Insightful
Almost nobody targeted by the RIAA has the resources to withstand the $500,000 or so in legal fees the RIAA is willing to throw into a case.
Ray Beckerman +5 Insightful
I don't know much about the tax protesters, so I'm going to decline to engage your specific example and challenge the logic of your argument. The critical remark you make is "They still cling to these arguments even when no court has ever ruled in their favor". Because of Stare Decisis it is possible for the court system to repeatedly act contrary to fact and logic. And here lies an important point, there is a distinct difference between what courts do and what the law is. Those two things are not the same, but a trial judge is not (usually) receptive to interpretations of the law at variance with precedent. This is why we have appellate courts and the supreme court; those judges and justices have a bit of discretion to reconsider whether the precedent and the actual law agree.
But here again is an important point: neither the appellate courts nor the supreme court act of their own volition. They require first that a party challenge the interpretation. Consequently, I find your attitude of "give up, you lost already" rather out-of-touch with how the court system functions and the meaning of truth.
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
"The United States is a nation of laws - poorly written and randomly enforced." - Frank Zappa
Politics is Treachery, Religion is Brainwashing
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
In our federal system, when is a trial judge in Minnesota bound by an decision in New York?
If he is a federal judge, he looks first to appellate decisions within his own Circuit - the Eighth. U.S. Courts If he is a state judge, he looks first to appellate decisions within his own state.
But he is free to roll his own, subject only to the risk of reversal on appeal.
It is within bounds for a trial judge in Duluth to decide that the opinion of a trial judge in New York was correctly reasoned and that the opinion of the appellate court in New York was not.
The sate appellate courts of Minnesota can disagree with the state appellate courts of New York.
The Eighth Circuit Court of Appeals in St. Louis can - respectfully - disagree with the Second Circuit Court of Appeals in New York.
It is the responsibility of the U.S. Supreme Court to resolve such conflicts - if it believes that they are needlessly disruptive and of Constitutional significance.
But the Supremes take on only 100-200 cases a year.
Also, the President can not sign the bill, and in seven days it becomes law. This would usually be done for either bills that don't allow for a big press conference, or for ones in which the President doesn't support, but knows the veto will be overturned.
Another mistake here, the Justices are appointed by the President, and then confirmed by the Senate.
Oh, and one other duty of the Executive branch is that the Vice President presides over the Senate, and casts tie-breaking votes (but only votes if there is a tie).
Nephilium
Nope.
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NewYorkCountryLawyer is a Minor Deity here at
I cannot abide some RIAA sleaze taking him out.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
Is there an allowance to get a case overturned/re-tried if there's evidence that the plaintiff did not fulfill their duty to the court (and the law)? It seems to me that if the RIAA lawyers were citing cases that were later overturned, and that this was the basis for the precedent that "making available" was valid as a form of distribution (and thus a key-point to the case), then it seems that the case may have very well gone the other way if the hadn't "cheated"
Sorry, this is wrong. As officers of the court, lawyers have obligations to the court that override their obligations to their clients. For example, a lawyer may not suborn perjury by his or her client and may not intentionally misrepresent the facts of the case. When a lawyer submits case citations, they must, as far as he knows, be valid. If a decision is overturned while the motion is still before the court, the attorney is obligated immediately to notify the court. Failure to do so is fraud upon the court. Not only will the defendant here have an additional ground for appeal but the RIAA attorneys are subject to sanctions.
Sadly this is true.
One of the admins of a site parallel to my own gripe site (sig) was taken to court by Farmers. The estimates are that they spent north of $700K to litigate the case. His legal fees were in the $200K territory. It was only through heaps of pro-bono time and assistance from his home-owners insurance that he was able to fight the case, and his is one with gobs of precedent (gripe sites/free speech/fair use). In the end the case was settled out of court and part of the settlement was a confidentiality clause (I'm assuming this is SOP) so I don't know the details of the deal, but his site is still up and last time I was on the phone with him I asked him how he was financially, with his house and such, and got a positive answer.
It's only because they "lost" that case and because I'm in California with its wonderful SLAPP-Back statue that I think they have not outright sued me... yet. That and my riveting response to their C&D letter: http://www.farmersreallysucks.com/editorialtakedown1.shtml.
The main difference I see (and am disturbed by) between cases like Rene's and the RIAA cases is the dragnet methods the RIAA use for identifying targets. The rest I see as fairly uniform IP sleaze law practice.
-nB
whois gawk date unzip strip find touch finger mount join nice man top fsck grep eject more yes exit umount sleep dump
There's speculation among some legal authorities that there might be a constitutional limit on how far statutory damages can depart from actual damages. There was a notable Supreme Court case that put such a limit on punitive damages (BMV v. Gore, 1996), holding that punitive damages can only be a relatively small multiplier over actual damages (the court suggested 10x or more would be highly unlikely to qualify). No case about statutory damages has made it up that high in the 11 years since, so whether court would extend a similar ruling to statutory damages is all speculation. In part this is because statutory damages usually are actually reasonably close to estimated actual damages, so there's no occasion for an appeal on those grounds. Copyright laws are an anomaly in that respect, but also don't come up much because convictions like this one are rare.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
One defendant, in UMG v. Lindor, has actually raised this defense, and the judge accepted that it can be added to the case, rejecting the RIAA's arguments that it was implausible or inapplicable. In particular, the judge wrote in support of the defense's plausibility: "...Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered."
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
Ray Beckerman +5 Insightful
I believe these cases are in New York, which has not adopted the Model Rules. However, the New York Lawyer's Code of Professional Responsibility has similar provisions.
Let's take a look at the case:
http://arstechnica.com/news.ars/post/20071003-judge-bars-riaa-president-from-testifying-in-capitol-records-v-thomas.html
This afternoon also marked the appearance of Jammie Thomas [defendant] on the stand. She was called by the plaintiffs immediately after lunch, who started by questioning her about her experience with computers.
NEVER let the defendant testify, especially in first trial! Or is this a civil case where you have no 5th amendment rights? Anyway...
The questioning then turned to her CD-ripping habits. In her deposition, Thomas said that she ripped no more than six or seven CDs per day, but on the stand today, she said she could have ripped over 2,000 songs in a little over two days.
Wow. Then,
She originally had said that she bought the PC from Best Buy in 2003 and that the hard drive was replaced in January or February of 2004. After her forensic expert inspected the hard drive and found that it wasn't manufactured until January 2005, she then said that she bought the PC in 2004 and that the hard drive was replaced in March 2005. "I was a year off on everything in my deposition," she said.
Lying on the stand isn't good either.
Finally,
"He also said that the 'jury could do the math' on whether it was possible for her to rip 2,000 or so tracks over a two-day period given the demonstration earlier in the day."
Well, I'm a bit surprised too...but...this is the best defense?
Silly me, I thought the RIAA spoofed her computer and faked the whole thing.
Our legal system doesn't rest on speculations as to what might have happened; it rests on evidence.
Ray Beckerman +5 Insightful
Didn't even have evidence that it shared file stubs. As I understand, they never got to examine the hard drive. Your understanding is wrong. They did examine the hard drive and it did not support their claim.
Ray Beckerman +5 Insightful
http://recordingindustryvspeople.blogspot.com/2006/11/judge-grants-marie-lindors-motion-to_09.html is pretty close to that. ...Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered.
"Telling a judge about how some other judge ruled, but leaving out the fact that the case was overturned is perfectly acceptable."
Wrong. Very wrong. Colorado rule is the same as everyone else:
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
Colorado Rules of Professional Conduct Rule 3.3(a)(3)
While the motion is pending they have an obligation to alert the judge that the authority they'd sent him is no longer valid.
Ray Beckerman +5 Insightful
Jammie Thomas has asked me to notify people that contributions can be made via Paypal at freejammie.com.
Ray Beckerman +5 Insightful