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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
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.
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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
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
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 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
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
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"
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
Our legal system doesn't rest on speculations as to what might have happened; it rests on evidence.
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