Judge Refuses To Sign RIAA 'Ex Parte' Order

NewYorkCountryLawyer writes "The RIAA just can't get enough of going after University of Maine students, but it appears that the judges in Portland, Maine, may be getting wise to the industry's lawyers' antics. RIAA counsel submitted yet another ex parte discovery order to the Court ('ex parte' meaning 'without notice'), in BMG v. Does 1-11, but this time the judge refused to sign, pointing out that there is no emergency since there is no evidence that records are about to be destroyed [PDF]. This is the same judge who has previously suggested the imposition of Rule 11 sanctions against the RIAA lawyers, accusing them of gamesmanship."

Comments

Ex parte

[rstultz]

'Ex parte' does not really mean without notice. It refers to a legal proceeding where all involved parties are not present. Usually when one side is trying to get the judge to do something without the other party having a chance to argue their side. This is 'ex parte' because it's a John Doe defendant. And I'm pretty sure that it being 'ex parte' has nothing to do with this story, but something thought it sounded nice when they submitted the story. 'Ex parte' does sound nice.

Re:Ex parte

[Ungrounded Lightning]

I suspect NewYorkCountryLawyer has some clue about what he's talking about.

Also: According to the (current) page on it in wikipedia:

In Australian, Canadian, U.K., and U.S. legal doctrines, ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. It is also used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.

So it's "ex parte", not because the Does aren't present, but because the RIAA is asking the judge to rule without consulting the Does and giving them a chance to file a counterargument. If they are given a chance to file a response (even if they're not physically present - especially at the same time as the RIAA representatives which could lead to them being identified even if they should not be) then it's no longer "ex parte" according to the US usage.

Re:Ex parte

[NewYorkCountryLawyer]

Ex parte means without notice.

Re:Ex parte

[nickrout]

'Ex parte' does not really mean without notice. Yes it does. It means without notice to the other part[y|ies]. If someone is about to do me a legal wrong (e.g. undermine my house by excavating under my land) and the situation is urgent I may be able to obtain ex parte an injunction to stop them. Becasue the bulldozer is humming outside my house I can get the order urgently. The quid pro quo for getting it without the bulldozer man getting an opportunity to show his side of the case is that I must be scrupulously honest and up front to the judge and provide all relevant evidence, whether it helps me or the other side, and my lawyer must refer the court to any cases or laws which may be against me as well as those that may be for me. ex parte orders are reserved for urgent situations, which is why the judge here said there was no need for an ex parte discovery order as there was no evidence that records were about to be destroyed. Oh and IAAL.

Re:Ex parte

[NewYorkCountryLawyer]

What are the rules about when ex parte orders can be issued? The rule is, what they are doing is totally illegal. In federal practice ex parte relief is only granted as a last resort. In these cases the RIAA lies through its teeth to get the order, falsely saying that the ISP or University will destroy the records if they are given notice of the application. It amazes me that there is any judge in the U.S. who would sign such an order. I think you'll be seeing more and more judges refusing, as news of the RIAA's lies spreads.

In the University of Oregon, the RIAA conveniently "forgot" to tell the judge that the University had told the RIAA that it had gathered and was preserving the records.

In the University of New Mexico case, the judge had this to say about the RIAA's "ex parte" request:

Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule.

In the College of William & Mary case the judge just rejected the application outright.

NYCL is a lawyer who handles RIAA cases!

[Anonymous Coward]

> 'Ex parte' does not really mean without notice.

Normally, no. In RIAA 'expedited discovery' cases, however, it _does_! They grab the discovery against twenty or so people and withdraw from the case immediately afterwards.

If you knew anything about our submitter, you'd know that he's a lawyer and that when the RIAA runs things, they go for "expedited" motions so that things really do happen without reasonable notice for the parties in question.

While you're correct about what ex parte (usually) means, in RIAA cases, I will defer to NYCL. He is, after all, an attorney who has been directly involved in cases opposing them and who has a nice FAQ on his website. It tells you exactly how they run these cases and why they habitually withdraw from the case once they get discovery in the ex parte suit and send people to their "settlement center" after that, making the entire process something most parties only find out about after the fact.

So no, he didn't include the words "ex parte" just because he thought they sounded cool.

- I Don't Believe in Imaginary Property

Re:NYCL is a lawyer who handles RIAA cases!

[NewYorkCountryLawyer]

> 'Ex parte' does not really mean without notice. Normally, no. In RIAA 'expedited discovery' cases, however, it _does_! They grab the discovery against twenty or so people and withdraw from the case immediately afterwards. If you knew anything about our submitter, you'd know that he's a lawyer and that when the RIAA runs things, they go for "expedited" motions so that things really do happen without reasonable notice for the parties in question. While you're correct about what ex parte (usually) means, in RIAA cases, I will defer to NYCL. He is, after all, an attorney who has been directly involved in cases opposing them and who has a nice FAQ on his website. It tells you exactly how they run these cases and why they habitually withdraw from the case once they get discovery in the ex parte suit and send people to their "settlement center" after that, making the entire process something most parties only find out about after the fact. So no, he didn't include the words "ex parte" just because he thought they sounded cool. Thank you. No I don't do anything to sound cool. I don't have it in me to sound cool.

In American litigation (which I've been working in since 1974), the term "ex parte" means "without notice".

Re:These guys...

[Anonymous Coward]

My guess is you're not an American. These are civil cases, not criminal. In that case, you aren't innocent until proven guilty, and there is no concept of "reasonable doubt". They just have to prove that its more likely that you did it than that you didn't. No one has been fined. A settlement is not a fine. Fines go to the government, settlements to the other party. You aren't convicted in civil court either. Either stop pretending to be an American, or take a civics class.

Re:These guys...

[Kierthos]

How is this flamebait? It's correct. Yeah, he could have been a little more friendly in his tone, but honestly, we can't have a /. story on an RIAA case without some nimrod getting criminal and civil cases confused.

In civil cases, the burden of guilt is based on preponderance of evidence. In other words, if it is more likely then not that you committed the act in question, that is all that is required in a civil trial. This, BTW, is how O.J. Simpson was found liable for the deaths of Nicole Brown and Ron Goldman... although he was found not guilty in the criminal trial, the same evidence was used to find him liable for their deaths because the burden of proof was that much lighter.

Re:These guys...

[NewYorkCountryLawyer]

The law in this case is absolutely fine and dandy and very clear. However, the law about "making available" doesn't say what the RIAA wants the courts to believe it says. One high profile case is going back to the courts right now because the judge figured out that while a defendant (likely) made songs available for downloads, that wasn't "making available for further distribution" in the sense of copyright law. Because the judge was hoodwinked by the RIAA, he gave the wrong instructions to the jury, which therefore came to the wrong conclusions, so it has to go back to the court. Thanks, gnasher, well put.

Actually there is no copyright infringement claim that can be based on even 'offering to distribute' as in the example you posited. The courts have clearly held that the distribution right does not come into play unless you actually disseminate the copies. E.g., one of the leading cases involved putting it in a catalogue, which was clearly an "offer to distribute". But since no items had actually been sold from the offending catalogue, the Court held that no case for infringement of the distribution right existed.