NC Judge Takes "A Fresh Look" At RIAA Subpoenas

NewYorkCountryLawyer writes "When some North Carolina State students recently brought to the attention of the Court the apparent illegality of the RIAA's investigations by unlicensed investigators, they also caught the attention of the judges. After reading these new papers, District Judge Louise W. Flanagan, who admits that she's been routinely signing the RIAA's ex parte discovery orders in the past, has indicated that she is now going to take 'a fresh look' at the RIAA's tactics. She issued a stay of the subpoena, ordering NC State not to respond to it, and referred the motions to dismiss the cases to a Magistrate Judge for him to take that 'fresh look' at what has been going on."

Comments

Good

[Anonymous Coward]

Treat these subpoenas like they came from the mafia or a drug cartel. Make them go out of their way to do something crazy, like having proof.

Re:Good

[TubeSteak]

Treat these subpoenas like they came from the mafia or a drug cartel. Make them go out of their way to do something crazy, like having proof.

They have proof*, the issue is whether the proof was legally obtained.

*for small values of proof

Re:Good

[Anonymous Coward]

Treat these subpoenas like they came from the mafia or a drug cartel. Make them go out of their way to do something crazy, like having proof.

They have proof*, the issue is whether the proof was legally obtained.

They have no proof, since it can not be verified it is correct.

Here credibility enters the stage. Only officers of the police (etc) have sworn the statement to forfill truthfullness.

Re:Good

[Kingrames]

Two possibilities:
1) This is a christmas miracle and a single Judge is turning out to be something other than a slimy evil-beyond-belief scumbag and we'll all live happily ever after...

2) She's just doing this to force them to bribe her again.

Re:Good

[Anonymous Coward]

What is amazing is this part:

After reading these new papers, District Judge Louise W. Flanagan, who admits that she's been routinely signing the RIAA's ex parte discovery orders in the past, has indicated that she is now going to take 'a fresh look' at the RIAA's tactics.

Shouldn't she have taken a look at the illegality of RIAA's tactics like way, way back when RIAA first requested a motion for discovery? The fact that some students brought this illegality to attention long after the first case of what became routine is rather disturbing.

Re:Good

[mabhatter654]

The RIAA is using false pretenses to gather the names though. The biggest problem so far is that they are "jumping" cases... filing one case against "jonh doe" at an ISP to get names, then taking discovery from that case to create new cases against individuals NOT in a group... not legal in many places as it is false pretense to the court as well as wastes time tracking down what a federal court would consider trivial cases.

The other problem is how they got the IP addresses in the first place... they've never allowed judges to look behind the veil at WHO was generating these and the paper trail...was it obtained legally? That question is getting very murky and deserves investigation. when challenged they drop cases instead of provide the evidence. Judges are getting tired of being systematically duped. These are Corporate national lawyers this behavior is not acceptable at that legal level. Not telling the "whole truth" is equivalent to lying, just harder to prove.

Re:Good

[mabhatter654]

there's no bribery here, just misrepresented court documents. These are judges used to corporate case language for "stolen" IP and contract violations. The RIAA lawyers are disguising these "common" violations in mountains of legal speak like they were running pirate manufacturing operations... Judges to date have been willing to overlook the legal hyperbole because both sides will get their day in court... at least that's how it's supposed to work.

now that there have been more than a few plainly misrepresented case at all the stages, before discovery and during trials, these cases are going to get extra scrutiny to their worthiness before allowing them to continue en masse. It's wasting the court's time and of questionable legality.

Re:Good

[NewYorkCountryLawyer]

What would be interesting to find out is if the **AA attorneys had internally discussed the issue of private investigator credentials before the public or defendants raised the matter. Because if the **AA lawyers knew and didn't say anything to the Judges, they'd be looking at sanctions.

1. They're not smart enough to have thought about it on their own.

2. Tanya Andersen's lawyer thought about it for them in October 2005, so they've been on notice since then.

3. So yes they have exposure to sanctions, big time.

4. Or maybe worse, because they are aiders and abetters. If you hire a hit man you're equally guilty of the murder. We're talking criminal law here, because the use of unlicensed investigators is a criminal matter.

Hurray for justice!

[y86]

Even if it's late.

Re:Hurray for justice!

[mrsteveman1]

Actually in the U.S, justice is a whore, she fucks the highest bidder.

Re:Hurray for justice!

[ScrewMaster]

I dunno ... I had a cop issue me a bad ticket once. He was a well-known asshole on the force, and the judge apparently knew that. He was a fat fuck with coke-bottle glasses claiming he saw me pass a schoolbus with its sign out from six blocks away. The driver closed her sign and waved me on before I made my turn. It was the end of the month, so I guess he figured he had an easy ticket.

Still, this would have resulted in a six-month suspension had it stuck. The judge told me that the law had recently been changed, and she no longer had any leeway for this particular "offense". However, the judge actually had the prosecutor looking through a thick book of statutes to find a way to plead me down. He eventually said, "Ah-ha!", because there was wording that allowed the offense to be plead down to a lesser offense if the alleged offender (me) had not had a moving violation within the last ten years or some such. So I got off with an illegal left turn ... didn't even affect my insurance rates. So I walked out $250 poorer (what my attorney charged) but feeling that justice had been done. The judge also had a couple of harsh words for the cop.

Back in my days as a software contractor, I was in court a few times because of customers that refused to pay their bills. That happened rarely: the smart ones try to keep their developers happy because they know they may need support some day. But there were a couple that were (I found out later) having financial troubles and just figured they'd save some money. I did my homework, and when I went to court the response from the judge was always, "Pay the man!"

I know, small potatoes compared to these RIAA cases (although we were talking projects in the $35-40,000 dollar range) but so far I've been well-treated by the courts.

Oh well...

[Pig Hogger]

Oh well... It was fun while it worked.

Time to look for another business method...

Re:Oh well...

[arth1]

Unfortunately, I believe their answer to the law not allowing this isn't to change their business methods, but to change the law. Here in the US, this seems to be the easiest and cheapest solutions -- the price of your average politician is too high for individuals but low enough to not make a dent in a corporation's coffers.

Do us all a favor the coming November -- look up the contributors to your representatives before voting, and strike anyone who has accepted money from the entertainment cartels or their lobbyists.

Re:Oh well...

[Anonymous Coward]

Don't forget, the recording industry and the movie moguls are getting results from policticians in Europe and elsewhere now too. Our main hope may still lay in judges are are mostly expected to recuse themselves from a case if they could be said to have bias in it, like having gotten polictical donations from any of the involved. Not only watch what laws are being snuck in, but what treaties exist and are trying to be modified or added.

Tons of amicus curiae may need to be filed across the country to avoid ignorance amongst judges and defending lawyers, such as the EFF and Ray have provided before. May even need a nationwide ( maybe even worldwide ) watch system to alert capable filers of amicus curiae to new filings of lawsuits by the RIAA/MPAA.

Re:Oh well...

[hairyfeet]

Exactly. here in the US you usually get a choice of "rich old money corporate ass kisser A" or "rich old money corporate ass kisser B". Between the revolving door of public servant/corporate shill and the outright bribery,added to all this old money and politicos who are multi generation power brokers, it is no wonder that the top 6% control more than 90% of the wealth. And I don't see how the vote will EVER change that.

Basically any real change will end up from nationwide civil disobedience,like Dr. King and Gandhi used. Unfortunately we don't seem to have a charismatic leader to rally the troops at the moment. Perhaps in the future one will arise,but until then "voting the bums out" will simply allow other bums to get their piece of the pie. But as always this is my 02c,YMMV

Re:Oh well...

[bzipitidoo]

This is what Lessig was complaining about. All "throw the bums out" and term limits does is disrupt the cozy relationships for a short time. Even now, I'm sure lobbyists are maneuvering in expectation of a big Democratic win in the US election this year. The more likely it looks, the more they can plan for it, and the shorter the disruption will be. Lessig hopes more transparency can fix this problem.

I've an idea that yet another reason why wealth concentration is bad is that the money cannot be used as efficiently. The rich waste money extravagantly because it isn't worth their while to be prudent and careful with money, it's time that counts for them. They will blow off $20 or $100 or even more if it seems it might save them 10 minutes of time. In addition to the less than 100% performance they get out of their money by such practices, by being willing and able to pay extravagantly, they add to inflation, making it harder for everyone else. It's an outrage the way upper management pay has so grossly outpaced peon pay. At the other extreme, the poor are constantly forced to accept bad deals because they have debts to pay right now. Cash that paycheck at the check cashing place that skims 5%, so they can get the money and get it into their checking account right away, before the check they wrote the day before has a chance to cause them to be overdrawn, triggering a cascade of expensive fines. (You know how banks love to delay deposited checks to make penalties happen. They can't use that "check clearing takes time" excuse for cash deposits.) Lose 5% so they don't lose even more in penalties.

But back to the topic. It looks as if the RIAA's reputation in court is at last cracking. They've been getting away with a lot of crap an individual couldn't do, because courts have been more believing in the professionalism of corporate lawyers and corporate lawsuits. Courts are no longer taking the RIAA's professionalism for granted. The courts are at last realizing that although a corporation has a lot to lose by ruining its own reputation, the RIAA really is that stupid.

Way to go RIAA, turn the public against you. Turn artists against you. And now, turn the courts against you. Trash your reputation. There anyone left who still thinks you have any reputation? Congress maybe? Apple Computer?

Re:Oh well...

[NewYorkCountryLawyer]

It looks as if the RIAA's reputation in court is at last cracking. They've been getting away with a lot of crap an individual couldn't do, because courts have been more believing in the professionalism of corporate lawyers and corporate lawsuits. Courts are no longer taking the RIAA's professionalism for granted.

Yes I think you're right. For a judge to publicly acknowledge that he made a "manifest error of law", because he was misled by the RIAA's lawyers, is extraordinary.

What now?

[drinkypoo]

Where is the motion to dismiss going now, and what is likely to happen to it?

Re:And so it begins!

[zappepcs]

Goliath falls dead. After a stunned silence, the crowd turns back to tending breakfast around the campfire, content to go on with what they were doing. All of David's friends celebrate, but the politicians and leaders simply begin plotting a new strategy.

And some people think CoS is evil?

Seriously: I'm glad to see that the courts are finally paying attention... to the law instead of politicians.

OK, which one of you guys at RTP did this?

[Anonymous Coward]

Jesse Helms (NC-R(acebaiter)) dies this morning, now a North Carolina judge is second-guessing RIAA subpoenas.

So fess up. Which one of you geeks up at Research Triangle Park left the cluesprayer on last night, because it's obviously leaking cluons all over the friggin' state.

I'm not saying you should stop the leak, by the way. I'm just curious as to the source.

!suddenoutbreakofcommonsense

[davidwr]

Took too long.

Re:And so it begins!

[Anonymous Coward]

I'm glad to see that the courts are finally paying attention... to the law instead of politicians.

Who is it that you believe writes the law?

Getting a license may not be too easy:

[Steve1952]

This is from the North Carolina state website:

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_74C.html

Section 74C-12: Denial, suspension, or revocation of license, registration, or permit; duty to report criminal arrests.

(a) The Board may, after compliance with Chapter 150B of the General Statutes, deny, suspend or revoke a license, registration, or permit issued under this Chapter if it is determined that the applicant, licensee, registrant, or permit holder has done any of the following acts:

(1) Made any false statement or given any false information in connection with any application for a license, registration, or permit or for the renewal or reinstatement of a license, registration, or permit.

(6) Engaged in or permitted any employee to engage in a private protective services profession when not lawfully in possession of a valid license issued under the provisions of this Chapter.

(8) Knowingly made any false report to the employer or client for whom information is being obtained.

(12) Undertaken to give legal advice or counsel or to in any way falsely represent that he or she is representing any attorney or he or she is appearing or will appear as an attorney in any legal proceeding.

(13) Issued, delivered, or uttered any simulation of process of any nature which might lead a person or persons to believe that such simulation, written, printed, or typed, may be a summons, warrant, writ or court process, or any pleading in any court proceeding.

(17) Failed to notify the Director by a business entity other than a sole proprietorship licensed pursuant to this Chapter of the cessation of employment of the business entity's qualifying agent within the time set forth in this Chapter.

Re:Getting a license may not be too easy:

[RobertM1968]

If I am reading that right, it means it very likely (if the magistrate judge follows the law) that the RIAA and their current cohorts will never be allowed to carry out any form of investigation in NC.

Nice!

Well, one can hope...

Silence...

[jaminJay]

How am I supposed to get good legal commentary if no-one's posting on /.?

Re:Silence...

[NewYorkCountryLawyer]

How am I supposed to get good legal commentary if no-one's posting on /.?

Don't look at me. I shouldn't even be working today.

Re:Silence...

[NewYorkCountryLawyer]

Well, since it is the Fourth of July, thanks for letting us know the fight goes on and that there will be some fireworks.

Definitely the fight goes on, and there will continue to be lots of fireworks.

Re:Silence...

[NewYorkCountryLawyer]

Wow, those are some fireworks! Just make sure we can see them all across the country. I'm really enjoying your letter. It's hilarious and very compelling reading to anyone with half a brain, let's hope the judge agrees...

Thanks. But I can't really take the credit. The RIAA's lawyers are the ones feeding me my material.

Good

[SilverBlade2k]

About time a judge follows the law instead of following the money.

the rubber stamp wore out?

[EllynGeek]

Maybe they should look for judges who know the law and read the documents that pass before them.

Oh quit laughing, it could happen!

Discovery, Discovery, Discovery

[monxrtr]

In all cases before this court, the undersigned has allowed plaintiffs' expedited motion for discovery.

Open source file sharing of all files, containing both copyrighted and uncopyrighted content, is Constitutionally mandated on Legal Discovery Process grounds. We all have just as much of a right as any trade organization, as any ISP, or as any government to analyze all content ever created to search for copyright infringements. We can all legally enlist all paid and voluntary help whatsoever in this endeavor.

If defendants are charged with copyright infringement, they have the right to argue and exhibit evidence that invalidates the original copyright claims themselves, such as showing prior art, or overlapping use of content which is the copyright ownership of secondary parties. This can only be accomplished by copying and manually (or automatically in hash recognition programs) inspecting the files. Prohibiting defendants and secondary claimants from gathering evidence is a violation of their due process and legal discovery rights. Thus, cease and desist and take down notices for any and all files shared on the internet are violations of due process and discovery rights for First, Second, and Third Parties. Result, P2P file sharing is absolutely necessary, and inhibiting the free flow of information (for non commercial non profit legal discovery evidence purposes) is wholly unconstitutional.

What's next? The Courts rule that handwriting expert testimony cannot be introduced as evidence in a court because it violates the copyrights of the person who wrote the words?

Thus I have Discovered that P2P open source file sharing is absolutely necessary for the protection of copyrights. Yeah, I'm just that good. Please notify me immediately if you find this post in any torrent files such as for example a file which was theoretically named everything_ever_made_by_Walt_Disney.tor so that I may undertake appropriate legal actions to defend myself. I also humbly request infinite deputized voluntary intern help in vetting every data bit available on the internet for the purposes of determining that no copyright violations regarding my content are being wrongfully claimed or distributed. I will also likewise be glad to reciprocate in helping to determine that none of your copyrighted stuff is also illegally contained in files. Thank you for your assistance, and welcome to your first day as an intern in Open Source Legal Discovery Inc. ^_^

May your file sharing Legal Discovery Searches, be fruitful. And yes, you can put OSLDI Intern on your resume.