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RIAA Protests Oregon AG Discovery Request
NewYorkCountryLawyer writes "The RIAA is apparently having an allergic reaction to the request by the State Attorney General of Oregon for information about the RIAA's investigative tactics. The request came in Arista v. Does 1-17, the Portland, Oregon, case targeting students at the University of Oregon. Not only are the record companies opposing the request (pdf), they're asking the Judge not to even read it. (pdf)"
Nevermind our tactics, just give us the convictions (oh, and the penalty money too) we seek!
The RIAA is a cornered beast that is under increasing scrutiny, of course it will react like this in response to a federal case. Not to mention it is a profit-hungry corporation just like all the rest.
Isn't this standard lawyer behavior? Objecting to everything the other side does?
Write your own Choose Your Own Adventure. http://www.freegameengines.org/gamebook-engine/
Do they have a different version of the Federal Rules of Civil Procedure in Oregon under which "sur-replies" to motions are permitted?
Some sorts of safeguards are required for this material. Traditionally, this has been up to attornies having professional ethics. A dubious proposition in some cases. Perhaps some sort of "fruit of the poisoned vine" is required for civil evidence.
Striking something is not quite the same as not even reading it. What Arista records seems to be saying is that the University of Oregon added new arguments in a reply memorandum and that these new arguments should not be considered by the court.
When a party in a case wants the court to do something, that party often provides a memorandum in support of the requested action. This support brief provides the arguments as to why the court should take action. The opposing party then has an opportunity to counter these arguments by providing arguments as to why the court should not take action. This is the response brief. At this point, the party that asked the court to do something can counter the arguments made by the opposing party. This is the reply brief. Then the court makes a decision.
The party that asked the court to do something generally cannot add new arguments into the reply memorandum. That party may reaffirm its original arguments or try to shoot holes in the opposing party's arguments, but new arguments are generally not allowed. The reason for this is that the opposing party no longer has an opportunity to respond to arguments before the court makes a decision.
If the party that asked the court to do something were allowed to make new arguments, then it would make sense to withhold the best arguments until the reply brief is filed. This would tilt the outcome to the party making the request, which would lead to parties making a lot of requests (it is bad enough now, but it could be a lot worse).
The reality is that procedural matters are an important part of our legal system. A judge could be required to retry a case if an argument was improperly considered or improperly dismissed. Some scrutiny has to be applied, especially when the issue of whether to consider an argument is raised.
The judge would probably read the University of Oregon's reply carefully to determine whether new arguments were raised or not. If new arguments were raised, then the judge might very well strike the new arguments or even the entire reply, thus basing the decision on just the support and response briefs. If the arguments in the reply are not new (or simply shoot holes in Arista's response), then the judge would not strike the reply and make a decision based on all three briefs.
Of course, some research into the specific procedures of the District Court for the District of Oregon is necessary to fully understand the situation, but that seems to be the gist of what is going on.
Where's the mafiaa tag???
The question that I haven't seen anyone pose yet is if the claims by the RIAA attorneys are valid. Is it permitted under Oregon rules to raise the items that were raised in the University's reply? Are the seven different points all just meaningless drivel or is there something real there?
I don't know. It does not seem to be completely without merit and the University's reply seems to contain a bunch of material that is utterly irrelevalent. Certainly when arguing for the quashing of discovery bringing up opinions about what the plantiff's motivations may or may not be is not relevant to the issue at hand. Implying (or stating) that the plantiff is "spying" on the Does hardly seems to be on point in such a reply either.
I think this deserves an insightful mod. :)
I'm getting tired of articles about the RIAA. But I also keep being amazed about how an organization can be that clueless and detached from the real world. Anyway, wake me when they're being dismantled and cease to exist, OK?
-- Cheers!
IANAL so I wonder whether it would be better tactics to request and file a surreply just in case, or to use the new arguments issue as a possible basis for appeal later?
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
'The tyrant will always find pretext for his tyranny.' - Aesop's Fables
Why even pay anyone when there are plenty of musicians willing to do it for free. Just look around the internet. They are not hard to find. Yeah, a lot of it sounds amateurish and crappy, but that is because they have no budget and have crappy equipment.
If you want a "solution", why not create a site to help people find these musicians, and also a system to get them some decent equipment--maybe a donation system which sends new equipment to the most popular musicians. Maybe have free music studios available. ...then again I swear this sounds familiar...has this been done already?
At any rate, creating music is a social activity which the music "industry" has caused to degenerate into a passive activity. It used to be that common people would write / perform music to send a message or just to socialize with people. Why can't it be that way again?
1. The RIAA just wants the name and address of the person to whom the internet access account is addressed, who is "John Doe".
2. The RIAA assumes, without benefit of any evidence for the assumption, that that person committed a copyright infringement, and alleges that, and will sue that person once it gets his or her name and address.
3. The Attorney General correctly recognized that, contrary to the RIAA's careless pleading and careless affidavits, the RIAA's evidence does NOT show that that person committed a copyright infringement.
4. The Attorney General correctly recognizes that the university has a duty to protect the privacy of its students, except where the RIAA could produce evidence that the student committed a copyright infringement.
5. Since the RIAA doesn't have any such evidence (and indeed has admitted that its "investigation" does not reveal what individual committed the alleged infringement), the only way the school could determine whether the John Doe in question committed a copyright infringement is to conduct a detailed investigation, including interviews and forensic examinations, which it has no legal duty to do (and which might be in breach of its duties to the students).
6. If the RIAA rephrased the subpoena to call for the names and addresses of the persons to whom the internet access account was assigned, without any reference to their being infringers, the objection would be the same: the RIAA has no legal basis for getting that person's identity, since it has no evidence that person committed any copyright infringement.
The fact that people haven't been discussing these issues doesn't mean they're not "getting the Oregon AG's point", because this particular article wasn't so much about the AG's objection to the RIAA's subpoena, as it was about the AG's taking the affirmative, and deciding to seek some "discovery" of its own into how the RIAA comes to be bringing this shakedown in the first place.
Ray Beckerman +5 Insightful
Ray, I've known a lot of attorneys over the years, worked for a few, hired a few, have lawyers in my family (you might even have heard of one of them), number them among my friends ... and the ones that have delved into this business to any degree are uniformly aghast at the RIAA's activities. I mean, regardless of whether they agree with what the RIAA is trying to do, the lack of professionalism and disrespect for the courts just leaves them shaking their heads.
I've read most of what you've written on your blog, and of course have spent too much time here on Slashdot, but as an engineer I know my understanding of what is going on here is shallow at best. I just don't have the background to fully grasp why, from a legal perspective, their tactics are so wrong. However, those I know who do have such knowledge of the law take a very dim view of these proceedings. Frankly, the RIAA's legal staff seems to have garnered about as much respect among real attorneys as the mob.
That tells me a lot.
The higher the technology, the sharper that two-edged sword.
Ray Beckerman +5 Insightful