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Magistrate Suggests Fining RIAA Lawyers
NewYorkCountryLawyer writes "Angered at the RIAA's 'gamesmanship' in joining multiple 'John Does' in a single case without any basis for doing so, a Magistrate Judge in Maine has suggested to the presiding District Judge in Arista v. Does 1-27 that the record companies and/or their lawyers should be fined under Rule 11 of the Federal Rules, for misrepresenting the facts. In a lengthy footnote to her opinion recommending denial of a motion to dismiss the complaint (PDF, see footnote 5), Judge Kruvchak concluded that 'These plaintiffs have devised a clever scheme to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined.' She noted that once the RIAA dismisses its 'John Doe' case it does not thereafter join the defendants when it sues them in their real names. Arista v. Does 1-27 is the same case in which student attorneys at the University of Maine Law School, "enthusiastic about being directly connected to a case with a national scope and significance", are representing undergrads targeted by the RIAA."
It looks like someone either forgot to pay that judge off!
What doesn't kill you only delays the inevitable
Can you imagine if your name really was "John Doe"? Imagine the fun you could have showing up for court dates with alibi's for everything. "No, your honour... I was at a marriage ceremony on that date and I have 200 witnesses as well as photographic and video evidence"
is warming up.... I have some hope in the US court system.
When trade associations go off the rails.
It's never been a more appropriate time.
I thought it said the magistrate suggested FIRING the attorneys. It seems that would be useful too, but there'd be ten more to replace them.
Other than this text, there is no discernible information contained in this sig.
Do you get the feeling that judges are tired of dealing with the RIAA now? I know what they have been doing is crap legal tactics to intimidate people, but I would have to guess its very rare for a judge to recommend fining a lawyer for their tactics.
Unfortunately, I assume not even a fine like this will slow down the RIAA. They will probably just move on to their next questionable tactic and keep going.
There's no point in fining rich lawyers and even richer multinational media corporations pathetically small amounts of money. Instead of a fine, maybe a lit candle should be held under the scrotum of each laywer and board member. It doesn't have to be held there long. Ten to fifteen seconds should do the trick.
This is typical. Lawyers go after the most vulnerable members of our society, trying to score the big win that will elevate them to next political office or paycheck. Children are targeted, thrown in jail for decades to 'make the streets safe'. Why is it the streets are safe in Europe, Australia, Canada, or Japan and not here? Why is there a need for vile men like Paul Morrison of Kansas to put 16 year old girls in jail for a decade because they defended themselves from beatings and sexual abuse?
Until we're willing to elect leaders to make a change, until we are willing to demand that the education system educate, until we vote with our pocketbooks and with our protest signs, this will continue. How long are we going to let the law abuse us? How long will our children be tossed in jail among adults to be murdered and sexually abused?
Hoist Number One and Number Six.
They'd probably throw you in jail for outstanding warrants or something :-)
It looks like someone either forgot to pay that judge off!
More important is the fact someone didn't do their homework. The PDF is dated this year! It admits using Media Sentry. Isn't the legal status of using an unlicensed investigator already in question? This case could have been thrown back with so much holes exposed it could get laughed out of court. They even seem to get away with calling the infringement copyright piracy. Wow. At least they have toned it down and didn't call it outright theft. Dudes.. It's copyright infringement.
The truth shall set you free!
The judge specifically wants to fine them under Rule 11(b)(3), which states: (b) By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery Basically, it's a serious ethics violation, and even being called on it without a penalty is going to kill these lawyers' reputations, and effectiveness in a courtroom.
Isn't the legal status of using an unlicensed investigator already in question?
Only in states where it's illegal to be an unlicensed "investigator".
If I have been able to see further than others, it is because I bought a pair of binoculars.
Even though they are amateurs looking at all that code, they are a classroom full of students collaborating vs. a handful of professional lawyers... The students are demonstrating their 'many eyes' advantage. Hmmm.... FOSS style lawyering... If a behemoth like Microsoft can't keep up, the RIAA is dead meat :-)
The judge noted a clever tactic being used by the RIAA to obtain the lists of names from the captured ip addresses. A joint submission was being made to the court to gain clearance for this discovery process. Upon gaining the real names, the RIAA went on to sue them as individuals and ignored the group-status declared to the court.
RIAA lawyers were bending the law to get names--this was seen as being done in bad faith. Hence the footnote and the news article.
You may now resume your activity of reading further into the judge's remarks.
Cheers.
Yet Socrates himself is particularly missed.
A lovely little thinker but a bugger when he's pissed.
I wish those student lawyers the best. The RIAA typically gets the best justice money can buy. If they can win this suit, they'll have long careers ahead of them.
The defendants still lost their motion to disallow the subpoena for their identities. I also cannot find anything in the decision where the judge actually says she considers that the RIAA lawyers should be fined. Sure, she makes clear that she doesn't like it, but that is all. This is all very unfortunate so far.
Can you believe it? In a press conference last week, Mitch Bainwol of RIAA infamy tells us, "Ladies and gentlemen, for a long time now, we've seen the signs of global recession. We can say confidently that this is the end result of illegal music piracy." He goes on with graphs that show the alleged correspondence. Link here
Congratulations sir! Excellent Rickrolling.
;)
If the trolls were all like you, the internet would be a more fun place
http://www.xkcd.com/354/
Perhapse that rail gun would do the trick? The excape velocity is quite obtainable these days! ...only the RIAA lawyers head may not quite fit through the opening between the rails at this time. We all well know that with rail guns the density, or mass of the projectile, is everything, so by my calculations with the density of Encephalitis Spongiform required to file these law suites in the first place, it may still make it feasible. After all "F=MA"
I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants' names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder. Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accura
Gah! rickroll'd to the max.
usually trolls piss me off, but you win.
I have developed a truly marvelous proof of this comment, which this signature is too narrow to contain.
*I wonder why they would even think of such a think oh so quietly to myself*
destiny, chance, fate, fortune; they're all ways of claiming your fortunes, without claiming your failures. -gerrard
An American judge actually protecting someone's rights in a MAFIAA case? Has hell frozen over?
It would be nice if after a few victories if enough of a "criminal pattern" could be established that a class action suit could target both the RIAA, their members and specifically their Laywers...
http://www.hawknest.com/
But this would mean a significant increase in court costs for the RIAA, both in terms of actual fees to the courts for that much paperwork, as well as many more man hours to be billed to their legal department.
How realistic is it to hope that these increased costs might cause any real impact to the frivolous nature of the RIAA litigation?
I cant remember if it was this article or another but i got the gist of reading it that out of 20 doe suits less than half actually got to a real trial. Clearly the john doe tactic is hit or miss, if each miss starts costing them is there any hope the problem will be self correcting?
The lawyers are the vultures that take a bad situation and profit from it, these bastards thrive on conflict, let take the buggers down a peg or two.
You feel sleepy. Close your eyes. The opinions stated above are yours. You cannot imagine why you ever felt otherwise.
No soap-on-a-rope for these guys..
Maybe they fear the court's reaction when they are caught the second time. If the first offense gets you a fine, what about second and third time? Disbarment?
IANALANFWSFL (I am not a lawywer and not familiar with sanctions for lawyers), so could someone comment on this who knows more about it?
C - the footgun of programming languages
I was actually thinking of making the idea an Onion-style satire, but I'm hardly clever enough, so it degenerated to this. If someone else can pull it off, though, by all means, go for it
I'm a Kansas ex-pat and am interested in knowing more about what you're saying about Paul Morrison. Is he as bad as the AG he replaced, Phill Kline?
... being used for important scientific missions. ... ...
Hah, just kidding.
OK, launch the lawyers. And let them keep the Shuttle while you're at it, it will save us a bundle.
Help poke pirates in the eyepatch, arr.
Please don't fire them into the Dells. That would spoil a very nice Wisconsin vacation area!
Note also that this common sense idea should long ago have been part of our judicial system in order to prevent misuse of the courts in revealing private data in cases that are nothing more than court-sanctioned information farming. Cases which are dismissed immediately afterwards. People have been fired after companies have used these tactics to uncover anonymous critics using cases that they never could have won at trial - and that's outright wrong!
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Esmie Tseng. She was a 15 year old girl who was physically, sexually, and emotionally abused by her immigrant parents. (Emotional abuse is BS in my opinion, except in this case. The crap they did to her was awful.) One day, when she was getting beaten by her mother, she grabbed a knife. Her mother took it away from her. Esmie grabbed another knife and stabbed her mother 5 times. She then ran to her bedroom. Esmie's mother called Esmie's father who was at work. He got home, spoke to Esmie's mother, called 911, and then Esmie's mother died. She had been afraid to call 911 because she might have been put in jail for abuse.
So what does Paul Morrison do? He throws the book at an abused 15 year old girl. At 16, she is placed in an adult prison. The 16 year old girl is forced to strip on a weekly basis in front of male guards. She's surrounded by women and transgender men who are in jail for trafficking drugs, violent crimes, prostitution, and other violent crimes. She is not allowed to take college courses. At 15, her life was over, all because she did not want to be abused any longer.
As you know, Paul Morrison is now AG. He used the misery of a little girl to catapult himself to statewide office.
Hoist Number One and Number Six.
I would think if the joinder is found to be improper, then all the Does after Doe #1 would quickly be severed, meaning only the first Doe would have his/her information subpoenaed, and individual cases would have to be filed for each additional Doe defendant. Given that the RIAA already doesn't like filing individual ex parte expedited discovery oriented cases, one guesses that mass litigation has been to their benefit so far. It's a benefit we'd like to remove from them.
I do wish that the magistrate judge had put these feelings about this in the body of his opinion, and not just a footnote.
Unfortunately, this magistrate judge also believes, feels, whatever, that the Supreme Court didn't say in Trombly what everybody else feels they said in Twombly. That has really hurt the defendants, if the trial judge agrees.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Another question for you, NYCL:
Apart from the fines, are there any other interesting/useful effects if a firm or its lawyers are sanctioned under rule 11? For example, do cases from the firm attract more scrutiny from the courts? Is it likely to cost them clients because the sanction appears in public records that clients can see?
We are the 198 proof..
I am a Kansas resident, and first of all, Phill Kline was way more dangerous of an AG than Paul Morrison. Kline used the office for personal vendettas, most notably against an abortion doctor. The case in question here was when Morrison was the Johnson County DA. It had nothing to do with his election to AG. Give me a break. He disliked Kline so much that he switched parties so he could run *against* Kline. Not to mention, Morrison isn't even the AG anymore, he resigned amidst a scandal where he was fooling around with a coworker while trying to dig up dirt on Kline. Judge Stephen Six from the Douglas County district court was appointed by Governor Sebelius to replace Morrison.
And seriously, news about rural America is probably better obtained from local sources. Why a BBC link instead of one from the Kansas City Star, Lawrence Journal-World, or Topeka Capital-Journal?
As my mama always said. 'If you want a lawyer hurled into the Sun. You have to do it yourself!'
Ask not what you can do for your country. Ask what your country did to you
Ahh, it's merely a comparison. Most trolls 'round here make obvious mistakes, which you avoided. You picked a theme that worked well with the story, and then didn't resort to goatse, tubgirl, etc.
;)
Respect where it is due
http://www.xkcd.com/354/