RIAA Wants To Throw In the Towel On 3-Year-Old Case

NewYorkCountryLawyer writes "After three years of pursuing a home health aide in Brooklyn who has never even used a computer, the RIAA has announced it's ready to throw in the towel. Only thing; it wants the dismissal to be 'without prejudice' so it won't be liable for attorney's fees. The courts have been saying that where a copyright plaintiff gives up, the defendant is presumptively entitled to an attorney's fee award. So, Ms. Lindor says 'no way.' She wants the dismissal to be 'with prejudice,' and she wants her attorney's fees." We've been discussing this case and Ms. Lindor's fight against the RIAA for quite some time.

Comments

Attorney's fees are all well and fine.....

[Stanislav_J]

But how about something to compensate her for the harassment, stress, and general upheaval of her life for three years? The RIAA might cave in to paying her fees if they have no other way out of it, but a nice fat damage award would go a long way toward tempering the cartel's tactics, and to encourage others who have been sued. Of course, to get such an award she would probably have to file some sort of countersuit against them, and I doubt she has the stomach for that right now. Shows how in our legal system, even when you win, you still lose to some degree.

Re:Attorney's fees are all well and fine.....

[NewYorkCountryLawyer]

But how about something to compensate her for the harassment, stress, and general upheaval of her life for three years? The RIAA might cave in to paying her fees if they have no other way out of it, but a nice fat damage award would go a long way toward tempering the cartel's tactics, and to encourage others who have been sued. Of course, to get such an award she would probably have to file some sort of countersuit against them, and I doubt she has the stomach for that right now. Shows how in our legal system, even when you win, you still lose to some degree.

Unfortunately, I can't disagree with anything you just said.

It's an imperfect system, and definitely being abused at the moment by the large 'rights holders', who have engaged in a maelstrom of litigation in reaction to their imminent demise.

Re:Attorney's fees are all well and fine.....

[morgan_greywolf]

Perhaps a countersuit? IANAL, but I don't see why she couldn't turn around and sue them for the harrassment, pain and suffering, etc. Or is there some sort of statute that prevents that? Anyone know?

Re:Attorney's fees are all well and fine.....

[Anonymous Coward]

Well, that's the only way I'm aware of too. But the fact that this would mean MORE upheaval and stress for her wouldn't help.

Re:Attorney's fees are all well and fine.....

[Anonymous Coward]

I agree completely. I feel that the RIAA represent some greedy bastards, and they deserve everything they get.

Re:Attorney's fees are all well and fine.....

[Anonymous Coward]

Shows how in our legal system, even when you win, you still lose to some degree.

Thanks to Bobby Bare there is a musical reference to being a Winner.

As pointed out many times, the RIAA is not exactly good at following the "Gentlemen's rules" of the game. Hope Ms. Lindoor hits them hard in the wallet, would, no doubt, make Mr. Beckerman feel a lot better about Ms. Lindoor taking the draw. Hope the judge tosses the RIAA out of the ring too, with prejudice.

Re:Attorney's fees are all well and fine.....

[phoomp]

It's an imperfect system, and definitely being abused at the moment by the large 'rights holders', who have engaged in a maelstrom of litigation in reaction to their imminent demise

If they get their way in Canada, by getting the government to draft laws which protect their obsolete business plan, they may be developing a foothold by which they can force us to keep them alive.

Re:Attorney's fees are all well and fine.....

[PopeRatzo]

the large 'rights holders', who have engaged in a maelstrom of litigation in reaction to their imminent demise.

Yes, and in a down-turning economy, as the value of their "holdings" declines, they will turn increasingly to this type of litigation-for-profit to try to keep their stock price up.

Re:Attorney's fees are all well and fine.....

[Anonymous Coward]

Thanks for your contributions to this site and to our society!

Re:Attorney's fees are all well and fine.....

[Dan541]

It's bullshit that plaintiffs are able to withdraw a case.

Withdrawal should result in an automatic win for the defendant which should cover legal fees, loss of income, compensation for harassment and open the door for libel suits maybe then people will stop abusing the courts.

How do court case's get started get the RIAA just take you to court so your forced to lose your income to defend yourself or does the submission need approval before it can proceed?

What do you do about holidays, work or any other form of life, during a case like this?

Re:Attorney's fees are all well and fine.....

[honkycat]

It's tempting to make a blanket statement like that, especially when the plaintiff is perceived as the slimy evil that is the RIAA. However, it's difficult to make such a blanket declaration without creating injustices. In this case, if you read the RIAA's motion to dismiss without prejudice, which is linked from the article, they claim that Ms. Lindor and her relatives and counsel (aka NewYorkCountryLawyer, the submitter) have impeded/deceived them during discovery. Their claim is that as a result, they are unable to mount a case -- i.e., they're not just taking their ball and going home, they've simply decided that it's not going to be possible despite their (claim of) good faith effort to resolve the issues.

If this is true, then it's unreasonable to expect them to pay the costs of the defendant -- that would only encourage defense by stonewalling.

Thus, I don't think you can automatically say the plaintiff must see the case to conclusion to avoid funding the defense. As the case law seems to say (based on the links in the article), there's a presumption that they will be on the hook for costs, but there are certainly circumstances where justice is best served by allowing the case to be dropped without such an award.

And, hopefully obviously, I'm not up to date on the details of the case, and I'm not claiming that the RIAA is correct in its claims. Rather, it is simply those claims and the court needs to decide on their merit. The defense clearly disagrees with their assertions. It will be interesting to see how this turns out.

Re:Attorney's fees are all well and fine.....

[darkmeridian]

Granting a defendant automatic damages if a plaintiff withdraws a lawsuit will lead to many meritless suits prosecuted to the end. For instance, if the RIAA had to pay legal fees, lost of income, compensation for harassment, and libel in this case, they would not be withdrawing the lawsuit. They would rather fight this to the end and wait for the defendant to go bankrupt or cave in. I think the defendant should be given the chance to get damages by filing a countersuit but should not be granted automatic damages lest we create perverse incentives to flog a dead horse.

Re:Attorney's fees are all well and fine.....

[Khyber]

No, I say grant automatic damages in court. If you can't prove it, don't fucking bring it. They deserve every bit of shit thrown at them for bringing a FALSE LAWSUIT into court.

She needs to file and have the RIAA members labeled as vexatious litigants. That'll put a HUGE hole in their operation.

Re:Attorney's fees are all well and fine.....

[jobsagoodun]

Anonymous Coward: the gutless twat.

Re:Attorney's fees are all well and fine.....

[initialE]

So it looks like another legal fight, over whether the defendant had indeed impeded or deceived during discovery. Not over by a long shot.

Re:Attorney's fees are all well and fine.....

[arth1]

What I think would be fair was if any case brought that was dismissed with prejudice would automatically cost the accusers a fine of exactly as much as the damage they sued for.
That would not only reduce the amount of false claims, but also the preposterous amounts the accused are being sued for.

(I say fines and not compensation. Fines should go to the public and never to the accused, who only should get actual expenses covered. In Ius Commune, a firm principle is that neither the accuser nor the accused must ever benefit economically from the justice system. Rewarding the victim makes becoming a victim desirable, just like rewarding the accuser makes accusations more profitable than avoiding the initial issue.)

Re:Attorney's fees are all well and fine.....

[Skapare]

If this is true, then it's unreasonable to expect them to pay the costs of the defendant -- that would only encourage defense by stonewalling.

If that is indeed what happened, then the defendant has committed some violation of judicial procedure, or disobeyed a court order, or something like that. If the plaintiff believes this to be true, they should be asking the court to order the defendant to carry out the proper steps. For example, if it is a discovery issue, where the plaintiff wants some kind of discovery from the defendant that the plaintiff is rightly justified to have, and the defendant is refusing, then the plaintiff should be asking the court for a strict order to command the defendant to provide this. And if the defendant continues to stonewall, then the plaintiff should ask the court to hold the defendant in contempt.

A plaintiff that truly believes their case is fully with merit would follow this, unless they believe there is (now) going to be some harm to them to pursue it further (like actually losing, or worse). One thing the RIAA doesn't want is to have an actual loss on record as that might cause other victims to fight back rather than roll over and hand cash over to the RIAA. This has not been a campaign by the RIAA to win lawsuits; it has been a campaign by the RIAA to bully random people on a wide enough scale to just scare people into stopping sharing.

Re:Attorney's fees are all well and fine.....

[xtracto]

I am no expert in America History, but I remember reading there where people defending the slaves several years ago... sure, they were seen as Mr. Beckerman at that time, defending the people that was overwhelmed by unjust causes.

Re:Attorney's fees are all well and fine.....

[suck_burners_rice]

Shows how in our legal system, even when you win, you still lose to some degree.

Read Bleak House by Charles Dickens (link to Wikipedia article about Bleak House). It's the story of a lawsuit that stretches on for two generations. When it comes to lawsuits, the only winners are the lawyers. They laugh all the way to the bank. Everyone else loses, regardless of how the case turns out.

Re:Attorney's fees are all well and fine.....

[pfleming]

I haven't followed all of the links on NYCL's site, but he states that the defendant didn't even own a computer at the time the infringement took place while the RIAA clearly says she did. They don't site any evidence in the letter to the judge. I wonder if there is evidence that she owned a computer or if the burden of proof is not required in a request to dismiss?

Re:Attorney's fees are all well and fine.....

[dmneoblade]

The major flaw with your argument is that the legal system is based on "Innocent until proven guilty". The RIAA is accusing (seemingly) random people, seeing which of them are actually guilty, and tell the rest to ignore the inconvenience and hassle that they were just put through thanks to the false accusation. If the prosecution wishes to withdraw the case, that is them declaring that "Well, I guess the defendant is innocent after all", and by withdrawling with prejudice, they are draining time, money, and effort from the defendants and lawyers without compensating them for it. If the prosecution can not prove a defendant guilty, then they should need to compensate them for the losses they incured as part of the suit, reimbursing them for legal fees and time. At least for civil cases.

Re:Attorney's fees are all well and fine.....

[Anonymous Coward]

Exactly right, Jobsagoodun. By the way, that's a very unique name, is it French? Do people have trouble pronouncing it?

Re:Attorney's fees are all well and fine.....

[Nullav]

Cool! Do you think he has his own ship, too? :o

Re:Attorney's fees are all well and fine.....

[darkmeridian]

Punishing people for bringing a lawsuit that is eventually withdrawn will only benefit huge corporations with deep pockets. Pretend you sue Exxon Mobil for poisoning a well in a neighborhood. You spend lots of time and money on discovery and experts. Then you find out that there is no clear-cut evidence that the oil and poisons they dumped into a well caused the cancers in the neighborhood. There is a correlation but you cannot scientifically prove causation. Thus, your case is in a rut, and Exxon is outspending you at every turn. You're out of money. You have to drop the case.

Except you can't because then you would have to pay automatic damages. What to do, what to do?!

Stop having agitators on online forums create your legal system, that's what.

Re:Attorney's fees are all well and fine.....

[MacWiz]

I think people give the RIAA far too much credit by calling them evil. They're not smart enough to be evil.

In this case, if you read the RIAA's motion to dismiss without prejudice, which is linked from the article, they claim that...

The RIAA claims a lot of things. They always give up just before it's time to go to court and prove it in front of a jury.

defense by stonewalling

You mean the right to remain silent? Or the right to an attorney? If you accuse me of something, the burden of proof is on you. I don't have to say a damn word.

I would think that defense by stonewalling pales in comparison to prosecution by bluffing. The reason the RIAA drops every case is because they have no evidence. They'll claim they've got a whole shitpile of it, but then turn around and whine about how it's unfair to expect them to produce evidence, how it would "cripple" their efforts. Because they haven't got any.

Out of the tens of thousands of cases there are only a handful wherein the defendent makes a claim of innocence. Those are the only ones we hear about. Something like 99 percent just pay the settlement. It's all about refusing to admit that their system is wrong sometimes. If the RIAA accuses a computer illiterate of filesharing and drags it out for three years but are afraid to take the case to a jury and blame her for their incompetence, they never had any evidence in the first place.

The strongest evidence they have had in any case thus far, to my recollection, was that Jammie Thomas replaced her hard drive before they sued her. In essence, their only evidence was the lack of evidence. That's the only one they took to trial so far, their most solid case.

And they still had to cheat to win.

Re:Attorney's fees are all well and fine.....

[torkus]

Simple. Allow for the dismissal immediately after discovery with reasonable compensation for legal fees.

You thought you had enough to bring a case, put the defendant through the nusiance of giving you enough evidence to make you look stupid (not to mention having to hire a lawyer and show up in court) then you pay for that. This would make people think clearly before even bringing a lawsuit...and also serve to lower retarded legal fees in the first place i think.

Re:Attorney's fees are all well and fine.....

[Monsuco]

Yes, and in a down-turning economy, as the value of their "holdings" declines, they will turn increasingly to this type of litigation-for-profit to try to keep their stock price up.

Unlikely, a company suing an individual will seldom recoup enough from the suit itself to pay for the legal fees involved in suing them (people suing companies is another story, remember the lady who won a multimillion dollar lawsuit against McDonald's after she poured coffee on herself?). The Cartel only hopes to scare people into not downloading their products, though if cases like this start reaching mainstream press coverage, the cartel will lose so much credibility that many will assume their risk of being sued isn't even affected by actually pirating anything, that it is all random.

Re:Attorney's fees are all well and fine.....

[Anonymous Coward]

Your logic makes no sense. The RIAA should need no evidence and the legal fees for both sides should be payed by her because the RIAA is the one that is really hurting. Guilty or not does not matter what is important is the RIAA can harass and extort money at no expense to them.
WON't somebody think of the ARTISTS!

Re:Attorney's fees are all well and fine.....

[honkycat]

You mean the right to remain silent? Or the right to an attorney? If you accuse me of something, the burden of proof is on you. I don't have to say a damn word.

No, I mean stonewalling by refusing to act in good faith during discovery. You have a legal obligation to comply with these requests. You don't have to *say* anything, but producing evidence that proves your guilt is not the same as incriminating yourself with respect to the 5th Amendment. If it's subpoenaed and it exists, you must provide it.

But, like I said, the RIAA made a claim that, on its face, is not without merit. Perhaps the facts of this case are such that it is a frivolous claim-- that's certainly what the article and common /. wisdom suggest. However, remember that the article and the various links are provided by the defense counsel, and /. is hardly free from anti-RIAA bias.

Regardless, my point is that a blanket statement that "The plaintiff must always see every case to completion," while perhaps satisfying in this case, will not always serve the interests of justice. For example, if the claims in the RIAA's motion are true as they're expressed there, then it is probably a reasonable request. As I said, I don't know enough about the details to try to do the job of the court, and that's not my point anyway.

Re:Attorney's fees are all well and fine.....

[honkycat]

A plaintiff that truly believes their case is fully with merit would follow this, unless they believe there is (now) going to be some harm to them to pursue it further (like actually losing, or worse).

I don't think you can draw that conclusion. For example, it's also possible that the stonewalling has served its purpose and the case is no longer worth their expense. Perhaps it's hard to imagine this for the RIAA, but consider a smaller-budgeted plaintiff suing a larger entity. If the defense's procedural games exhaust the resources of the plaintiff, they will have no choice but to drop the suit. An automatic award of defense costs would not seem fair.

After all, the RIAA is asking for sanctions against both the defendant and her counsel. I don't mean to speak to the merits, I'm just pointing out that they are making a request that's consistent with their rationale for dismissal without prejudice. They can (consistent with their motion as I understand it) claim that they've simply made a cost/benefit analysis and due to the defense's misbehavior (in their view), they are no longer interested in pursuing damages at this time.

Remember also that the US legal system does not automatically award legal costs to the loser of such a lawsuit. In other words, it takes more than simply failing to prove your case to entitle the defense to reimbursement.

All that said, I agree with your assessment of the RIAA's tactics and would love to see them smacked down. However, I'd like to be sure it's done in a completely honest, open way. If their claims are as meritless as the defense argues, I have no doubt that we'll see that.

Re:Attorney's fees are all well and fine.....

[honkycat]

If the prosecution can not prove a defendant guilty, then they should need to compensate them for the losses they incured as part of the suit, reimbursing them for legal fees and time.

That's a big issue and there are arguments both for and against it. Rather than open that debate here, I'll just note that the US is not a loser-pays system by default. Attorney's fees may be awarded to the defense, but as I understand it this is rare and is usually the result of malfeasance by the plaintiff. As you and others have noted, the RIAA does seem to be engaging in a campaign of questionable legality. However, I'm not really addressing that issue here.

I'm merely trying to point out that there are circumstances where the plaintiff may decide it's just not worth it to pursue the matter further. If this is simply because they're going to lose, then sure, they should dismiss with prejudice and consider awarding attorney's fees if it seems that their entire case was illegitimate. And, certainly, the case law as cited in the article seems to support this presumption. The RIAA, however, has argued that it's not simply that they're afraid they're going to lose, it's that they're afraid their going to lose due to abuse of the system by the defense. If (if if if!) that's true, then it seems unjust to require them to continue the case simply because they brought it. All lawsuits carry some risk of failure and if (if if if!) the defense was misbehaving, it will surely increase the cost of litigation through no fault of the plaintiff. It's quite reasonable that this may cause them to reconsider the cost/benefit scenario.

Anyway, I hope their position is without merit and they get slapped, but I don't think we can conclude this based solely on their motion and the defense's response. It depends on facts of the case, which I'm sure not up to date on.

Re:Attorney's fees are all well and fine.....

[aussie_a]

They've finally learned that the evidence they need was thrown away before they learned of it due to the defendent's lying and stonewalling.

This is of course assuming the RIAA's letter is accurate, which while not a good assumption at all, IMO feels right based on the posts by NewYorkCountryLawyer. He has repeatedly said (and even says it again) that the defendant hasn't ever touched a computer. And while possibly true simply means that someone else using her internet connection (because she DOES have one) could have pirated the content. I've felt that a big possibility from the start and it seems the RIAA has finally gotten real proof (not the fake one they routinely throw around) that this is true. Something the defendant said (and continues to say) didn't happen.

I eagerly await to see if the RIAA's proof does hold up in court and if the court will impose sanctions. Although I have a feeling if it does happen, NYCL won't be posting about it ;)

Re:Attorney's fees are all well and fine.....

[awrowe]

Its not french, its Australian.

Re:Attorney's fees are all well and fine.....

[Anonymous Coward]

Why would she need to turn around? Is she facing the wrong way?

Re:Attorney's fees are all well and fine.....

[dmneoblade]

Very eloquent rebuttal, with many good points. Thank you for taking the time to write it.

Re:Attorney's fees are all well and fine.....

[MacWiz]

Regardless, my point is that a blanket statement that "The plaintiff must always see every case to completion," while perhaps satisfying in this case, will not always serve the interests of justice.

My point is not that "The plaintiff must always see every case to completion." Quite the contrary.

The RIAA has filed 40,000 lawsuits over a five-year period and have allowed exactly one to be decided by a jury, based upon a premise that has since been determined to be an "error of law."

I've said this before, so apologies to those who have seen it multiple times:

Sony v. Betamax presented the same basic copyright infringement issue. It involved exactly one defendant who, with a guarantee of no financial penalty, admitted to acts in question in several forms. The two sides then battled over whether the activity itself measured up to a violation of the law. It did not.

Filesharing is not mentioned in the copyright law. Neither is uploading or downloading or the determination of which is actually the infringing party. Most copyright infringement without profit potential has been specified as unactionable.

The RIAA has yet to prove the foundation of a legal basis for a file-sharing lawsuit against an individual.

It's not about "seeing every case to completion." Just one.

Re:Attorney's fees are all well and fine.....

[pyrr]

I don't buy it. If they were competent at building a case, there would be no opportunity for stonewalling or lying. The more likely scenario is that the defendant didn't assist the RIAA in making their case, which was too shoddy to stand on the evidence gathered by their sloppy investigative methods.

IANAL, but I'm pretty sure in a civil proceeding, the defendant is under no obligation to go out of its way to provide evidence to the plaintiff. The plaintiff can use court orders and such to require specific things be handed over, but they're responsible for knowing exactly what they want to be turned over to them, and where it's located. If the plaintiff doesn't know the right questions to ask (and is granted permission by a judge in a court of law to compel an answer), there is no obligation on the part of the defendant to volunteer relevant information. That was pretty much the outcome of a filesharing case a few months back where the RIAA filed suit againt one member of a family, but it turned out that another member had committed the alleged copyright infringement...the RIAA cried because they felt it was unfair, but when one files a lawsuit against a specific individual, one must simply make sure they have the right individual before proceeding. If the RIAA's methods aren't conclusive enough to ID an individual with reasonable accuracy (which they're obviously not), they deserve every loss that's handed to them. With prejudice.

Re:Attorney's fees are all well and fine.....

[kalirion]

Well there's the fact that if she loses she won't get her the lawyer's fee for the countersuit. And you can bet that RIAA will do everything in their power to get that countersuit dismissed with prejudice.....

Re:Attorney's fees are all well and fine.....

[honkycat]

While I agree with your point, I don't think it has particular bearing on what I'm saying. If their motion has factual basis in this case, then I think it should be granted, regardless of problems with their other cases. That has a giant "if" in it, though, and depends on facts of this particular case.

That said, I wouldn't argue against sanctions against them for an abusive pattern of lawsuits. That's a separate issue, though-- I don't think the right way to do this is to deny otherwise legitimate (if that's the case here) motions in some of their suits.

Anyway, I think we're talking about different things here.

Re:Attorney's fees are all well and fine.....

[Some_Llama]

"Unlikely, a company suing an individual will seldom recoup enough from the suit itself to pay for the legal fees involved in suing them"

Actually if you have been following these suits, it is very rare that a person will actually go to trial to dispute the case, about 98% of the lawsuits brought against "individuals" are settled out of court and upfront, thus generating 3-5000 per suit.. this is quite profitable, especially when you have paralegals sending out boilerplate notices to individuals demanding flat fee settlements.

Good for her.

[AltGrendel]

Stick it to 'em. Hard.

Too bad...

[Anonymous Coward]

she couldn't get compensation for her time and emotional distress.

Without prejudice...

[LinuxGeek]

also means could refile the suit if they want. It may just mean they want to try and get better legal leverage, like a new judge.

Re:Without prejudice...

[Hal_Porter]

I've always thought "Without Prejudice" would be a good motto for a shady company. You'd put it on your letters under the logo and you'd be protected while you lied your ass off during negotiations.

Re:Without prejudice...

[Anonymous Coward]

I've always thought "Without Prejudice" would be a good motto for a shady company. You'd put it on your letters under the logo and you'd be protected while you lied your ass off during negotiations.

Neat idea! Kind of like "Fair and Balanced"!

Re:Without prejudice...

[vilgefortz]

Aperture Science "We do what we must, because we can"

Re:Without prejudice...

[Anonymous Coward]

Or all the news that's fit to print

Re:Without prejudice...

[metamechanical]

an important distinction, something that confused me for awhile; "prejudice" in this sense is not the same as "discrimination", but instead means "pre-judged".

Exactly as you said, when a case is dismissed "without prejudice", it allows another case to be filed later. My understanding is that this is generally in the event of a case being dismissed due to a clerical error.

Re:Without prejudice...

[mixmatch]

Discrimination can also be used to mean a judgement...

Re:Without prejudice...

[Naturalis Philosopho]

"Prejudice" never means "discrimination". Even when talking about race/ethnicity/religion "prejudice" only refers to the (often unwarranted) opinion one forms, or the opinion given to someone, not what one does about it (hint: "prejudice" can be noun or verb, depending on whether its the opinion formed or the act of imparting an opinion or slant). "Discrimination" refers to the treatment one gives a person or group based on something like a prejudiced opinion of them (hint: only a verb as an action has to take place). That's why prejudice (in race) isn't illegal in the U.S. but discrimination is: we still haven't outlawed all thoughts, just actions based on them.

Bow to your grammar overlords. BOW I said! ;)

Re:Without prejudice...

[kalirion]

Hey, prejudice is baaaad, mmm'kay?

Towel????

[William Robinson]

I never thought I wanted to picture RIAA naked....unless they have some good chicks on board.

Re:Towel????

[morgan_greywolf]

A hitchhiker should never go anywhere without his towel.

My favorite line

[Registered Coward v2]

We have been telling plaintiffs all along that the defendant is innocent of any
infringement. Unmindful of their duties as officers of the Court, they nevertheless persisted. Now
that the time has come to pay the piper, they seek to scurry away, rather than face the music.

Don't they own the music?

(I trust Mr. Beckermann will accept my quote as fair use...)

Re:My favorite line

[Anonymous Coward]

Don't they own the music?

1. Owning copyright doesn't give them ownership of the music; it is a limited time monopoly according to the US Constitution. Copyright (theoretically and used to be in fact) runs out and the work goes into the public doamin with Huck Finn.

2. They only own a tiny fraction of the copyrights. Most bands aren't signed; you can see them in your local bar.

3. If I were this lady I'd see a shrink, and file lawsuit against the labels for metal distress

Re:My favorite line

[You2]

I'm not sure the RIAA knows what fair use is, I know that viacom doesn't, and I'm pretty sure the MPAA doesn't know what it is either.

Re:My favorite line

[dpilot]

> 3. If I were this lady I'd see a shrink, and file lawsuit against the labels for metal distress

Metallica's got that one covered, and they're on the RIAA's side.

Re:My favorite line

[lysse]

According to the contracts, they own the musicians.

And their firstborn.

Re:My favorite line

[ScrewMaster]

I think the GP was making a joke.

Re:My favorite line

[Dan541]

The MPAA does not evern know what is and is not theirs to begin with.

Re:My favorite line

[TheLink]

I thought Monsanto owns their first born.

With all those gene patents and "no unauthorized reproduction" ;).

Re:My favorite line

[mofag]

I thought Monsanto owns their first born.

sloppy! easily circumvented with a ceasarian

"With Prejudice" needed to send a message

[Morgaine]

The RIAA's lawsuits are purely speculative, based on a standard of "evidence" that would be laughed out of court in any other area. When there is no penalty for speculative litigation, litigation becomes a business method instead of an instrument of last resort. This case needs to be dismissed With Prejudice to counteract this misuse of the legal system.

In addition, the RIAA as plaintiffs suffer no discomfort from a failed lawsuit, as it's all just paperwork and their daily office job for them. In contrast, their defendants suffer horribly from the process win or lose, with years of their lives being damaged and unrecoverable, since the litigation process is entirely foreign to their normal lives. This is unbalanced, unfair, and inadequate.

Both areas need redress, starting with dismissal With Prejudice and including compensation to the defendant for harm caused. But really more than that is needed. The RIAA lawyers themselves need to suffer some kind of professional penalty that will stay on their record, or this kind of legal abuse will not stop. Without negative feedback, systems spiral out of control, and that is as true in law as in science.

Re:"With Prejudice" needed to send a message

[morgan_greywolf]

Well said, Morgaine!

The RIAA lawyers themselves need to suffer some kind of professional penalty that will stay on their record, or this kind of legal abuse will not stop.

Abuse of the legal system is something that an attorney could be censured for by their state's Bar association -- with penalties ranging from fines to and including disbarrment.

Re:"With Prejudice" needed to send a message

[NewYorkCountryLawyer]

The RIAA's lawsuits are purely speculative, based on a standard of "evidence" that would be laughed out of court in any other area. When there is no penalty for speculative litigation, litigation becomes a business method instead of an instrument of last resort. This case needs to be dismissed With Prejudice to counteract this misuse of the legal system. In addition, the RIAA as plaintiffs suffer no discomfort from a failed lawsuit, as it's all just paperwork and their daily office job for them. In contrast, their defendants suffer horribly from the process win or lose, with years of their lives being damaged and unrecoverable, since the litigation process is entirely foreign to their normal lives. This is unbalanced, unfair, and inadequate. Both areas need redress, starting with dismissal With Prejudice and including compensation to the defendant for harm caused. But really more than that is needed. The RIAA lawyers themselves need to suffer some kind of professional penalty that will stay on their record, or this kind of legal abuse will not stop. Without negative feedback, systems spiral out of control, and that is as true in law as in science.

I agree. But I am expecting the RIAA's lawyers, who on a daily basis have been making many false statements of fact to the courts, working with unlicensed investigators, misstating the law, and using illegal procedures, to be called to task eventually. It will no doubt be too little, too late, but I'm expecting repercussions for what they've done.

Re:"With Prejudice" needed to send a message

[Anonymous Coward]

The RIAA's lawsuits are purely speculative, based on a standard of "evidence" that would be laughed out of court in any other area.

Except for one other area: terrorism. If the defendants are accused of terrorism, then the courts accept even weaker standards of "evidence", including any old nonsense shouted under torture.

Sadly, this has to be said.

Re:"With Prejudice" needed to send a message

[Stiletto]

When there is no penalty for speculative litigation, litigation becomes a business method instead of an instrument of last resort.

Um, I hate to tell you, but even with the possibility of dismissal with prejudice, litigation is still a HUGE business. You just need to go for higher awards to offset the risk associated with the penalties.

The litigation-for-profit industry is alive and well and not going anywhere.

Re:"With Prejudice" needed to send a message

[grizdog]

Great, but isn't justice delayed justice denied? If the RIAA lawyers are permitted to make a career out of this before they are sanctioned, and get disbarred in an early, comfortable retirement, what is accomplished? And more to the point, what is "officer of the court" worth, if this is the case?

Re:"With Prejudice" needed to send a message

[Anonymous Coward]

Do you have 'vexatious litigant' status on that side of the Atlantic? If UMG (is it UMG Vs Lindor? I have difficulty keeping track of which one it is) were to be declared a vexatious litigant, they'd have to convince a judge that they had a damned solid case before they were allowed to sue anyone again.

Re:"With Prejudice" needed to send a message

[dmatos]

At what point would it be reasonable to start proceedings against those lawyers? You make some fairly strong statements of their misdeeds here. With firm proof would those offenses not be more than enough to get them disbarred, if not jailed and/or fined for perjury?

Who is responsible for calling those lawyers to task? And who is capable of officially raising the matter for consideration?

Re:"With Prejudice" needed to send a message

[RWarrior(fobw)]

I agree. But I am expecting the RIAA's lawyers, who on a daily basis have been making many false statements of fact to the courts, working with unlicensed investigators, misstating the law, and using illegal procedures, to be called to task eventually. It will no doubt be too little, too late, but I'm expecting repercussions for what they've done.

Why have you (and other attorneys fighting them) not already filed complaints with their state bars?

Re:"With Prejudice" needed to send a message

[deblau]

Lawyers have to be "zealous advocates" for their clients. That's their job. Would you hire a lawyer who won't go to the mat for you? More than that, it's an ethical imperative. Everyone who's crying out for professional penalties doesn't understand the nature of the profession.

I have a great deal of respect for NYCL. He fights like hell for his clients. Of course, that means everything he says is biased for the defense. And everything the plaintiff's lawyers say is biased for the plaintiffs. That doesn't mean either of them are correct about what really happened -- they're just advocating the theory that best suits their client's wishes. And neither of them should be penalized for that, because that's how the system should work.

Re:"With Prejudice" needed to send a message

[sjames]

There is a line there, and it's pretty clear the RIAA's lawyers have stepped way over it.

A lawyer is first and foremost, an officer of the court. Then, they are to be zealous advocates for their client's case. That advocacy may not, however, cross the line into illegal or unethical practices.

It is fully expected that a lawyer will argue the facts of a case in the light most favorable to the client's position. It's another matter entirely to attempt to deceive the court or to knowingly abuse the court process for the client's benefit.

Re:"With Prejudice" needed to send a message

[MadnessASAP]

Yes but on the same note the lawyer also has a duty to the legal system. It should be his responsibility to tun to the client and tell them that they have no case and refuse to file it. In fact I think there should be a law similar to the one that grants workers the right to refuse to work in unsafe condition, grants lawyers the right to refuse to file a lawsuit.

Re:"With Prejudice" needed to send a message

[morgan_greywolf]

There's a very fine line between 'zealous advocate' and outright barratry. Advising your client to carry on a lawsuit for which you have no evidence and aren't likely to win in court specifically because you have no evidence is, without argument, an unethical and possibly illegal maneuver.

Re:"With Prejudice" needed to send a message

[Anonymous Coward]

Umm, that only applies when you're talking about applying the death penalty in questionable cases. Where somebody might get let off the hook for daring to not be guilty when the jury wants to hang somebody.

Re:"With Prejudice" needed to send a message

[atraintocry]

The context of "justice delayed is justice denied" is cases exactly like the one we're discussing. The RIAA has managed to drag this thing out for three years, because they're set up for that. It probably does make more sense in criminal cases, but it certainly doesn't stop at cases concerning the death penalty. The idea is that you can keep delaying a case, and (as was mentioned earlier by another poster), violate the idea of a speedy trial. The speedy trial right is important -- otherwise the government, or entities like the RIAA, could "lock people up" in litigation indefinitely.

Of course, the length of this case seems to be a side-effect of their overall strategy. They want people to settle. They seek to bring as many people as possible into court, and are hoping that the majority of them settle outside of court. The people who actually defend themselves in some cases are subjected to a series of stalling tactics while the RIAA pretends to look for the evidence that they don't have, or didn't legally acquire.

Justice is being purposefully delayed here, since the RIAA doesn't have justice on their side. And to the extent that you can keep someone in court for three years with no evidence, it's being denied.

Re:"With Prejudice" needed to send a message

[DamienNightbane]

Clearly, we need to apply the death penalty to these cases then. Lets see the dollar out weigh that risk.

Re:"With Prejudice" needed to send a message

[NewYorkCountryLawyer]

Who is responsible for calling those lawyers to task?

The judges.

And who is capable of officially raising the matter for consideration?

The parties or the judges.

Re:"With Prejudice" needed to send a message

[NewYorkCountryLawyer]

Lawyers have to be "zealous advocates" for their clients. That's their job. Would you hire a lawyer who won't go to the mat for you? More than that, it's an ethical imperative. Everyone who's crying out for professional penalties doesn't understand the nature of the profession. I have a great deal of respect for NYCL. He fights like hell for his clients. Of course, that means everything he says is biased for the defense. And everything the plaintiff's lawyers say is biased for the plaintiffs. That doesn't mean either of them are correct about what really happened -- they're just advocating the theory that best suits their client's wishes. And neither of them should be penalized for that, because that's how the system should work.

I respectfully disagree. The duty to be a "zealous advocate" has to be balanced against the many other duties a lawyer has, under the general concept of serving as an "officer of the court", such as duties not to to make false statements of fact, duties not to mislead the court on the law, duties to investigate before suing, the duty not to sign frivolous or false documents, the duty not to do unnecessary harm to people with whom you come in contact, etc., etc. I would never do, on behalf of any client, the things the RIAA lawyers have done. There are lawyers, and there are attack dogs; these are attack dogs. I do not consider them to be genuinely a part of my profession.

Re:"With Prejudice" needed to send a message

[NewYorkCountryLawyer]

There is a line there, and it's pretty clear the RIAA's lawyers have stepped way over it. A lawyer is first and foremost, an officer of the court. Then, they are to be zealous advocates for their client's case. That advocacy may not, however, cross the line into illegal or unethical practices. It is fully expected that a lawyer will argue the facts of a case in the light most favorable to the client's position. It's another matter entirely to attempt to deceive the court or to knowingly abuse the court process for the client's benefit.

Exactly. The RIAA lawyers aren't familiar with those pages from the Code of Professional Responsibility.

Re:"With Prejudice" needed to send a message

[aussie_a]

I don't know a number plate on a car seems analogous of an IP address, ASSUMING correct records are kept by the ISP on what computer was assigned what IP address at what time. If the ISP doesn't keep proper records (and IMO there's no reason they should feel they must) then that's another story.

However simply turning up with a customer address based on an IP address from a proper database isn't "purely speculative" and I feel shouldn't "be laughed out of court."

Just as I may not have been using a computer at a particular time, I may not have been using a car that was registered to me. Funnily enough the courts uphold a photograph from a speed camera as enough evidence for the police to send me a fine (I could of course defend myself with an alibi and challenge it in court). And criminal proceedings require much higher standards then civil ones.

Re:"With Prejudice" needed to send a message

[Rockoon]

It is the courts (or more specifically, judges) who determine what is fact and what is not fact. The RIAA's lawyers may very well have been making what we would like to call "false statements of fact"s, but until a Judge actualy determines that the statements were false, legally they aren't false statements at all. It is what it is.

Re:"With Prejudice" needed to send a message

[NewYorkCountryLawyer]

It is the courts (or more specifically, judges) who determine what is fact and what is not fact.

What a strange world it would be were that the case. But it is not. No one, not even a judge, can alter the truth.

Re:"With Prejudice" needed to send a message

[Rockoon]

In the legal world, since you do not know, judges define precisely what is true and what is not true. That is, specifically, their job. They judge the evidence and determine truth.

Re:"With Prejudice" needed to send a message

[NewYorkCountryLawyer]

That is simply not true. I guess you think the 'legal world' is not in the world, but you would be wrong. We play by the laws of nature, like everyone else. If something is true, it is true. If something is false, if it is false. If something is false, and a judge concludes it is true...
(a) the thing is still false, and (b) the only thing that has changed is that the judge was wrong.

Most questions of 'truth' or 'falsity' in the legal system are determined by juries, not judges. And the same holds true there. If a jury gets it wrong, the jury is wrong. The truth hasn't changed.

Our main job, as judges, juries, and lawyers, is to discover the truth. Not to create it. (Unless of course you're an RIAA lawyer, in which case you have a very different mission: convincing the world that black is white, and doing it by picking on defenseless people who don't have the resources to put on a defense, or by bringing 'ex parte' proceedings where the defendant doesn't even know there's a case going on.).

Mod parent up..

[Joce640k]

Nobody should be allowed to just drop a legal case with no penalty after three years.

Re:Mod parent up..

[xouumalperxe]

Nobody should be allowed to just drop a legal case with no penalty after three years.

Not all cases that last 3 years do so because (at least) one side is purposefully delaying. They might last that long simply because they're complex, both in terms of who's right and how right they are. The whole point of there being courts is to decide which way that sort of thing swings, and you shouldn't be penalized for it.

Now, if you can prove that the case dragged on simply because one party was trying to outlast the other, that's abusing the court, which is a different ball game altogether...

Re:Mod parent up..

[Crash Culligan]

xouumalperxe: Now, if you can prove that the case dragged on simply because one party was trying to outlast the other, that's abusing the court, which is a different ball game altogether...

NewYorkCountryLawyer: "After three years of pursuing a home health aide in Brooklyn [who was accused of illegally downloading and sharing music] who [claims that she] has never even used a computer

I don't know about you, but now I'm intensely curious how they could drag this case on for three years.

Re:Mod parent up..

[Technician]

Nobody should be allowed to just drop a legal case with no penalty after three years.

Actually, it's not in the court records, but in their bottom line, the dammage will run much longer than 3 years.

Nobody likes to sup with the devil. The dammage to their PR is huge and long lasting. In the heyday of Napster, sales were up. In the heyday of the litigation campaign, the major CD retailiers are folding. Tower Records, and many other retailers are gone. Many retailers have shifted to carying a large inventory to shifting to video games and DVD's. (MPAA is not in as much PR goo as RIAA).

I haven't bought a new retail CD in years, and that will continue until this mess is over. (online tracks same thing)

Re:Mod parent up..

[hedwards]

Just like how OJ has managed to drag out his investigation into the murder of his wife. OJ is still looking for the "real" killers and the RIAA is still looking for the "real" computer.

Come to think of it, has OJ managed to examine every golf course yet?

Re:Mod parent up..

[aussie_a]

Well the RIAA had evidence that someone using her internet connection was uploading music. They questioned her, they claim she lied, they have now recently gained evidence that she lied and have also learned the evidence they need to continue the case was thrown away by a relative of the defendant.

I'd say someone has definitely been dragging this case on, but if the RIAA's claims and evidence are truly accepted then it clearly wasn't them for once.

Staying power

[nurb432]

They never dreamed that she could/would stick with it this long so they are getting worried. They are used to just bulling people into submission.

I agree they need to compensate her for their unacceptable tactics.

This needs to be plastered across every news station in the country ( but we know it wont, as the *AA is the TV industries buddy )

Prejudice This

[hyades1]

If that dismissal can be called "without prejudice", then so is a Klan cross burning. They should pay "I'm a Dick Tax" as well as attorney's fees.

Worse = better?

[Anonymous Coward]

You could try the Italian method: make the judicial system so immensely slow, complex, and thoroughly fucked up that not even the SIAE (Italian RIAA) usually bothers to try using it as a weapon.

Care to elaborate, Mr. Beckerman?

[Broofa]

Mr. Beckerman (or other attorneys familiar with this case and the relevent law), can you comment on the merit of this request?

I've read the plaintiff's letter and to the lay-person it reads pretty reasonably. In effect, "We can't prove our case because the plaintiffs lied, hid evidence, and generally didn't cooperate to the extent required by law".

I'm sure the plaintiffs are putting the facts of the case in the most favorable possible light to avoid a "with prejudice" dismissal. But without seeing/hearing the actual testimony it's difficult to judge just how overt the defendents actions were, and to what extent the plaintiffs persual of this case had actual merit - i.e. how justified it was and, therefore, to what extent a prejudicial decision might or might not be warranted.

Re:Care to elaborate, Mr. Beckerman?

[Anonymous Coward]

And if you read Beckerman's response at http://recordingindustryvspeople.blogspot.com/2008/07/ms-lindor-opposes-riaa-attempt-to.html then you'd have your response. He clearly lays out how any prejudice is solely plaintiff's fault. Further, he points out the defendant is an individual not accountable for anyone else's actions, and that discovery was completed 2 years ago but that the palintiff waited until the end to complain about discovery. Further, the complaint is to the wrong judge and filed in the wrong fashion, with additional defects. All of those flaws in the plaintiff's argument make it unlikely sanctions are either warranted or will be granted.

Re:Care to elaborate, Mr. Beckerman?

[nomadic]

I've read the plaintiff's letter and to the lay-person it reads pretty reasonably. In effect, "We can't prove our case because the plaintiffs lied, hid evidence, and generally didn't cooperate to the extent required by law".

Well IAAL and the letter is not especially convincing. For one thing the plaintiffs' lawyers seem to be blaming the defendant for acts by several third parties. Another thing is that a lot of the criticism uses generic weasel words, like "inconsistencies" and "deceptive and/or incomplete information," which lawyers tend to use when they don't have anything concrete to attack. The alleged inconsistencies aren't especially damning when you're talking about witnesses and parties describing events that took place a while ago. The case ID number makes me think it was filed in early '05, so I'd think that would be the earliest the discovery requests came, so it doesn't seem unreasonable to be uncertain as to who was at your house on certain exact dates several months ago.

Re:Care to elaborate, Mr. Beckerman?

[517714]

IANAL, but the letter is B.S., hopefully the court will recognize that statements about people other than the defendant are irrelevant.

How are the actions of the defendant's family who are not party to the suit relevant? To summarize the letter ..

We filed suit against the wrong person, other people who are not party to this suit did things we don't like, there is absolutely no evidence against the defendant or others, so the defendant should pay, and we want to retain the right to file suit against her again.

The judge should challenge the use of the word irreparable. If the damage to the case is irreparable, then the case can only be dismissed with prejudice.

Re:Care to elaborate, Mr. Beckerman?

[sjames]

The response makes the matter fairly clear. None of the evidence the plaintiffs claim to have been denied in discovery is relevant to their suit. That is, even if that other computer was there and actively used by it's owner (the witness) to download music (an assertion that is not proven), it would serve to support the defendant's position rather than the plaintiffs. Further, the only reason they didn't know about it two years earlier is that they chose to wait that long to depose the witness.

In other words, as a plaintiff, you cannot stick your fingers in your ears and put off looking at discovery for years, then complain that you only saw it at the last minute. You especially can't do that and then claim that it's the defendant's fault.

Re:Care to elaborate, Mr. Beckerman?

[Anonymous Coward]

the letter amounts to "we can't prove the case we've been pressing for the last three years, despite using illegal methods, unlicensed investigators, harassing the defendants family and all the court discoveries we could get our hands on. Instead of kicking our asses for frivolous litigation, we want you to dismiss the case and not make us pay this INNOCENT womens legal fees, oh and give us permission to sue her again later if we so decide."

You forget, the letter was written by the RIAA's lawyers, they lie their asses off on in the front of the judge all the time.

This has been THREE years in the making, they been harassing her for three fucking years. These lawyers need to lose their licences to practice law for the gross misuse of the legal system they've perpetrated.

As it is now most lawyers don't give a shit, they get payed no matter what. If they actually had some personal repercussions for taking up meritless cases we'd probably see more lawyers advising clients 'your case has no merit' instead of just packing off to court.

Re:Care to elaborate, Mr. Beckerman?

[NewYorkCountryLawyer]

Why was the above post moderated "Interesting"? I don't understand. Did its author RTFA? Here was my "comment on the merit of this request", within the constraint of a 3-page page limit.

I.e., the plaintiffs' "request" is pure, unadulterated falsehood... it is one lie after another.

Re:Care to elaborate, Mr. Beckerman?

[NewYorkCountryLawyer]

And if you read Beckerman's response at http://recordingindustryvspeople.blogspot.com/2008/07/ms-lindor-opposes-riaa-attempt-to.html then you'd have your response. He clearly lays out how any prejudice is solely plaintiff's fault. Further, he points out the defendant is an individual not accountable for anyone else's actions, and that discovery was completed 2 years ago but that the palintiff waited until the end to complain about discovery. Further, the complaint is to the wrong judge and filed in the wrong fashion, with additional defects. All of those flaws in the plaintiff's argument make it unlikely sanctions are either warranted or will be granted.

Thank you for RTFA.

Re:Care to elaborate, Mr. Beckerman?

[kwandar]

"Why was the above post moderated "Interesting"? I don't understand. Did its author RTFA? Here was my "comment on the merit of this request", within the constraint of a 3-page page limi"

You must be new here ;)

(couldn't resist)

Re:Care to elaborate, Mr. Beckerman?

[NewYorkCountryLawyer]

Well, compared to you, I am new here.

Thanks for the chuckle, by the way.

Remember kids...

[Anonymous Coward]

Remember kids, Ms. Lindor didn't infringe upon others' copyrights, and neither should you.

Mickey Mouse

[Morosoph]

Copyright (theoretically and used to be in fact) runs out and the work goes into the public doamin with Huck Finn.

I'm coming to think that the US should make a Peter-Pan type exception for Mickey Mouse, since US congress refuse to let the sun set on the rodent.

Yes, it would be a barmy exception, but it is still worse, by some considerable margin, that one cartoon character should make law for the whole system of copyright!

Hell, they should make an exception for Minnie and Pluto while they're at it...

Re:Mickey Mouse

[meringuoid]

I'm coming to think that the US should make a Peter-Pan type exception for Mickey Mouse, since US congress refuse to let the sun set on the rodent.

As a matter of fact I would be fine with that. The eternal Peter Pan copyright belongs to the Great Ormond Street childrens' hospital, and when the copyright expired in 1987 the government granted them a perpetual right to collect royalties on it. I'm sure there are similar institutions in the US which would appreciate the same kind of deal with Mickey Mouse.

Re:Mickey Mouse

[Anonymous Coward]

There's a simple solution to this: Allow Trademark law to extend to /characters/. Disney's not making any money off of "Steamboat Willie", they're making money off of the use of the Mickey Mouse character.

Re:Mickey Mouse

[fyrewulff]

Actually, I've been thinking about this for a while too. A compromise between "NO COPYRIGHT!" and "COPYRIGHT FOREVER!"

First, we drop copyright back to something a bit more modern but still reasonable. Say, 20 years from the point of creation. This gives enough time for the copyrighted work to see most of the income it'll ever get for the creator.

But, for certain 'legacy' copyrights, we can grant National Protected Copyright status to. This would be something like how the Library of Congress chooses to preserve certain films. The company that wants to be protected would file an application containing the following:

1) Why it is believed their copyrighted character/work is a recognized national treasure
2) What works of theirs they want under this application. All of these works must have been registered for a minimum of 15 years.

If the application is successful, the copyrighted work then belongs to the government at the end of the 20 years, who licenses it back to the applicant and charges maintenance/filing fees. After this, the government still has a legal way to crack down on counterfeiting operations, and the company no longer has to waste money defending their work. Also, if a company starts acting out of line, Congress can say "Hey, quit that shit or we're going to end your legacy copyright", much like they hold revoking monopoly exemptions on the NFL/MLB when they start taking things for granted. On the other hand, the government is also not going to waste money persuing small time copyright infringement.

If the company ever files for bankruptcy or otherwise goes under, their copyright is released into the public domain.

There'd be a lot more stuff to work out related to this, but I think some sort of special copyright status that can be assigned would be a heck of a lot better than just universally locking -everything- up for 100+ years.

Easy.....

[IHC Navistar]

All the defendant needs to do is show that the RIAA has *systematically* dragged out lawsuits, and then dropped them when the defendant "calls their bluff", knowing full well it's chances of winning at trial are unfavorable, and the defendant has no intention of settling. The RIAA knows it will be liable for attorney's fees if they lose at trial, so they drag everything out to the very last moment, hoping to save money by dropping the claim when the defendant doesn't settle.

However, asking for dismissal at this point in procedure doesn't show the intent to save money from dismissal. The fact that the RIAA had done it *many* times over shows a clear, premeditated plan to shift wasteful costs for reckless prosecution to the defendent in the event that no settlement occurs and a legal victory is improbable.

The RIAA drops it suits when:

1) The defendant calls their bluff by refusing to settle and forces them to support a baseless claim at trial, which the RIAA knows it will lose.

To save money, the RIAA then asks for a dismissal without prejudice.

It might be a stretch, but a good legal beagle could probably argue that this constitutes Conspiracy To Defraud.

Re:Easy.....

[Junta]

To save money, the RIAA then asks for a dismissal without prejudice.

Given the scale of RIAA legal costs incurred during that prolonged phase, I would say they aren't trying to save money at all. The defendant's legal fees are trivial next to the cost of trying to drag it out to avoid paying them.

It's quite obvious they want everyone to feel that regardless of the findings of a court, the defendant will have lost, and it's best to do as they say in the first place, regardless of guilt or innocence. RIAA doesn't care much about appearing to be in the right or anything anymore, they just want to induce fear, safe in the knowledge people will still fund the music industry as they way RIAA leads it.

Given the obvious systematic tactics of making a business of milking the Justice system, the courts really need to thoroughly strike down RIAA's efforts.

Re:Easy.....

[dshadowwolf]

You've hit the nail on the head here. The RIAA isn't going for the "dismissal without prejudice" to save money. They are doing it for the financial hurting it puts on the defendant and so they can point and say "we aren't done with it, but that's okay, we'll get that one next time".

Basically they are getting a victory without having proved their case and have the option of re-filing the case to get a second-chance at winning. Nobody should be able to do this - but until the RIAA is made to really hurt it will keep going on. Let's hope that Tanya Anderson's counter-suit ends with a victory for her.

And Ms. Lindor, I feel for your suffering and hope that Mr. Beckerman can get you the victory you deserve.

Re:Easy.....

[NewYorkCountryLawyer]

It's quite obvious they want everyone to feel that regardless of the findings of a court, the defendant will have lost, and it's best to do as they say in the first place, regardless of guilt or innocence. RIAA doesn't care much about appearing to be in the right or anything anymore, they just want to induce fear, safe in the knowledge people will still fund the music industry as they way RIAA leads it.

Precisely. Which is why Dow Jones Market Watch compared them to the Mafia.

Re:Easy.....

[Zeinfeld]

The RIAA is pushing for dismissal without prejudice to avoid the precedent that it is forced to pay lawyers fees every time it loses a lawsuit. If that happens the game is going to become much more expensive for them. They would face real risks when they file speculatively.

At the moment the RIAA are probably spending as much in lawyers fees as they recover. If they were paying defendants costs in losing cases they would face huge loses. The lawyers for the RIAA know this and are desperate to keep their meal ticket.

Now, what is the situation when the RIAA wins a suit. Do they demand their legal fees in that case?

Re:Easy.....

[NewYorkCountryLawyer]

The RIAA is pushing for dismissal without prejudice to avoid the precedent that it is forced to pay lawyers fees every time it loses a lawsuit. If that happens the game is going to become much more expensive for them. They would face real risks when they file speculatively. At the moment the RIAA are probably spending as much in lawyers fees as they recover.

Actually, my guess is that they are spending 2 or 3 times as much in legal fees as they recover.

If they were paying defendants costs in losing cases they would face huge los[s]es.

I think they are already experiencing substantial losses, and have for several years now.

The lawyers for the RIAA know this and are desperate to keep their meal ticket.

Yes but I think they'd better prepare themselves; this meal ticket is going bye bye.

Now, what is the situation when the RIAA wins a suit. Do they demand their legal fees in that case?

Who knows? I've never known them to win a contested case.

welll

[JackassJedi]

i guess it's better than Ballmer throwing a chair

Civil courts exist to make money for lawyers

[dloyer]

This is another example of how the civil court system exists only to make money for lawyers.

The judges will put on a show to make it look fair, but judges exist to help lawyers make money from Marks (Anyone who is not a lawyer).

If you have ever been involved with a lawsuit, you will quickly learn that it is all about how much the lawyers get paid to stumble through their process at $5/min. Facts don't matter. There is no real risk for the plaintiff to sue someone, the burden is on the defendant who must respond or loose by default.

If you are the defendant and you win, you still loose and if you loose, you loose more.

Since the cost of defense is so high, it is almost always cheaper to settle, and the lawyers know this.

If you are a lawyer and hold a grudge, you can really fuck someone over making claims that are not true. And they do. Judges will turn a blind eye.

The process is completely corrupt and serves no one other than the lawyers that infest it.

Am I bitter? Yes.

Re:Civil courts exist to make money for lawyers

[Anonymous Coward]

If you are the defendant and you win, you still loose and if you loose, you loose more.

The word you're looking for is "lose."

Re:Civil courts exist to make money for lawyers

[Sique]

That's why other juristictions have the principle that the cost gets shared between plaintiff and defendant by comparing the sums initially demanded and finally awarded. If you demand 100,000 initially and get awarded 5,000 in the end, then you have lost 95%, thus you have to pay 95% of the legal costs.

She said facetiously...

[Jane Q. Public]

"Would somebody please shoot an official of the RIAA, so that they finally get the point?"

Of course I would not suggest such a thing in reality... but DAMN... are these people so far removed from reality that they don't know what people think of them? Or do they just not care what their customers think?

Re:She said facetiously...

[MR.Mic]

Most of their customers don't even know what the RIAA is.

Re:She said facetiously...

[Tubal-Cain]

"Would somebody please shoot an official of the RIAA, so that they finally get the point?"

I'll do it. What server do they play on?

Re:She said facetiously...

[CartoonFan]

"Would somebody please shoot an official of the RIAA, so that they finally get the point?"

I think statements like this are part of the reason why the RIAA believes it is fighting for justice, morals and the like. I'm not suggesting that we should all sing the RIAA's praises, but violence will only make them believe that they are right.

Re:She said facetiously...

[that IT girl]

They don't care what the customers think. Half the customers don't even know who they are, they're just "downloading some sweet tunes, yo". You can hear about cases like this and shake your fist blindly at some unknown "authority", but until you actually learn who your enemy is, you can't really hate them (directly) or fight them.

Someone should make a video game about lawyers

[dloyer]

It would be a first person shooter.

The goal would be to kill as many villains (lawyers) as possible.

The hero would fight his way to the supreme court, leaving a long, bloody trail of greedy lawyers and corrupt judges.

Re:Someone should make a video game about lawyers

[TDyl]

Great idea - I won't buy it though, just point me to a torrent.

Re:Someone should make a video game about lawyers

[Anonymous Coward]

Phoenix Wright: Ace Attorney?

wait..

Re:are you ...

[Anonymous Coward]

but are you loose?

Old joke, but oh so true...

[spike1]

What have lawyers and sperm got in common?

1 in 100,000,000 has the chance of becoming human.

Re:Old joke, but oh so true...

[xtracto]

And some of them get really big nuts.

Am I the only one...

[f_raze13]

Am I the only one who thought the story was about the RIAA suing a 3 year old?

Re:Am I the only one...

[barry99705]

I'm sure they have already.

Re:Am I the only one...

[shivamib]

No sir, I was about to comment on that. I was like, wtf, suing for listening to... uh... Mickey Mouse songs?

Re:Am I the only one...

[NewYorkCountryLawyer]

Am I the only one who thought the story was about the RIAA suing a 3 year old?

Yes.

Yes I'm quite sure you are.

Her Lawyer deserves some credit too ...

[Cassini2]

I think the reason this suit got this far, and generated as much interesting legal materials and reactions as it did, have much to do with the lawyer working the case. She would have not got this far, if it was not for the efforts of her lawyer. You have demonstrated how to defend and win a case against the RIAA.

It is not often that we think of lawyers as the good guys, but in this case, the community owes you thanks.

Good Work.

Re:Her Lawyer deserves some credit too ...

[slicerwizard]

Y'all could show your thanks by making Ray your friend: http://slashdot.org/zoo.pl?op=check&uid=912032
I haven't seen a single one in this thread.

Re:Her Lawyer deserves some credit too ...

[supernova_hq]

I understand how hard it can be to fight the RIAA, but how hard can it be to beat a digital copyright suit when you've never used a computer?

Barratry

[wiredlogic]

It would be nice if some of the more innocent victims of the RIAA assaults slapped them back with barratry lawsuits. The RIAA lawyers have already established a pattern of abuse with their shotgunning approach that shows that they are not acting in good faith.

Re:Barratry

[JohhnyTHM]

It would be nice if some of the more innocent victims of the RIAA assaults slapped them back with barratry lawsuits. The RIAA lawyers have already established a pattern of abuse with their shotgunning approach that shows that they are not acting in good faith.

Why even bother with the lawsuit? One of those nice TV ads - 'Hello, my name is xxxx. I'm innocent but I was sued by the RIAA. I lost my job and my life was destroyed. Here is a list of RIAA members.'

How long do you think that would have to run before the record companies got the message?

War and Habeas Corpus

[CustomDesigned]

Don't forget the "War" on drugs and child pornography. Police can confiscate the property of anyone they suspect of a drug crime. No substantial evidence (habeas corpus) required. It is called the "war" on drugs to justify this lowered standard of evidence, since a similar lowering of the standard has taken place in wartime since Abraham Lincoln.

Anyone accused of child pornography is automatically a pariah, and remains on sex offender lists (not necessarily government endorsed ones), even when the accusation is proved to be baseless. "It is the serious charge. A serious charge indeed." Since real child pornography today often involves downloads via the internet, it is very easy for a sexual predator to use your home internet connection while you are out of the country, and clueless officials blame you for it. You lose your job, marriage prospects, and social life for the rest of your life.

Now the RIAA is using the same suspension of habeas corpus, without even the pretension of "war". Or maybe that is why they insist on calling copyright violators (real or imagined) "pirates".

Galling, it truly is.

[caladine]

Anyone else notice that the motion also seeks to sanction the defendant and her lawyer for "discovery abuse"? The RIAA's lawyers actually have the gall to accuse someone else of "discovery abuse"? If there's worse case of the pot calling the kettle black, please let me know.

Re:Galling, it truly is.

[NewYorkCountryLawyer]

Anyone else notice that the motion also seeks to sanction the defendant and her lawyer for "discovery abuse"? The RIAA's lawyers actually have the gall to accuse someone else of "discovery abuse"? If there's worse case of the pot calling the kettle black, please let me know.

No there is not a worse case of the pot calling the kettle black.

I can elaborate...

[Anonymous Coward]

This is the RIAA talking. When they talk about 'hiding evidence' that's their only explanation for why they could not find any. Their ONLY "evidence" is that an ISP gave them Ms. Lindor's name, never mind her not having used a computer. After that, they ran around trying to sue the rest of the family.

Anyhow, isn't this the case where they're trying to sucker-punch? I believe they've already filed another Doe case involving the same acts and "neglected" to mention that it was related to this case.

In other words, the RIAA is not (nor have they ever) played fair. They should definitely be on the hook for this.

Everything about Mickey is already trademarked

[HornWumpus]

From the ears on down.

Re:Everything about Mickey is already trademarked

[Skapare]

So does that mean I'd be in violation of a trademark if I were selling pants intended for "mouse characters to cover up with"?

Zealous advocate only goes so far

[HornWumpus]

There are many things they can do that cross that line.

Knowingly filing a case with no evidence purely as an extortion tactic is one of the things that should get a shyster disbarred.

Re:Zealous advocate only goes so far

[DavidRawling]

With current techniques and knowledge, how can you prove that someone actually knew (as opposed to "might or could have known") about something at a given time?

For example, how do you prove that the lawyer who filed the case knew, at the time of filing the case, that the plaintiff was misrepresenting the evidence to the lawyer? The lawyer tells the client not to lie. The client lies anyway (not saying this has happened, I don't know given I'm on the other side of the world). Prove the lawyer knew. Not could have known. Not should have known. Knew.

Sloth, greed and procrastination

[arth1]

But there is this pesky little thing in the Constitution that seems to give the accused the right of a fair and speedy trial.

The lawyers (on either side) taking time to do other cases, or sending letters back and forth through antiquated means without actually moving the case forward is not honoring the spirit of "speedy".

I say a vatican approach is called for. Let the lawyers and judge be locked inside a room, with full phone and internet access to send their minions about, but not themselves get out until they have prepared the case for either immediate dismissal or immediate jury trial.

I'm only half joking - the time courts and lawyers (again, on both sides) take to do anything is appalling, and makes a joke out of the constitutional guarantee (and a fat paycheck for the lawyers).

Three years? This should have been finished within three weeks. Including all the witness disposition and technical evidence.

Re:Sloth, greed and procrastination

[hedwards]

Speedy is a relative term, requiring all cases to be tried in 6 months would lead to technically complex cases being tried without all the available evidence examined and curb the rights of the parties to appeal decisions.

Speedy mainly means that people can't be left to rot in holding cells while the courts or attorneys stall for more time without cause for doing so. In short it's more a requirement that DAs don't use holding cells as punishment for crimes than it is about getting things done as quickly as possible.

Re:Sloth, greed and procrastination

[arth1]

Every single hour spent from accusation to conviction, dismissal or acquittal should be accountable. If you need six months to dig up evidence, there are obstructions somewhere, and most likely on both (well-paid) ends, and likely doing things in a linear fashion where parallelism would have worked well. Unless you are waiting for the disposition of someone walking solo across the Antarctic without a phone, it's simply ridiculous.

I can't think of a single profession that works as slowly as the legal one. Not one.

Dune

[HappyEngineer]

It's an imperfect system, and definitely being abused at the moment by the large 'rights holders', who have engaged in a maelstrom of litigation in reaction to their imminent demise.

That reminds me of the rules about nukes in Dune. In order to prevent their use against others there was a rule that anyone who uses nukes on other humans would have their entire planet nuked (by the spacing guild I think).

OTOH, if a group had no option but to use nukes they could invoke an option where they give all their nukes to the guild in exchange for protection.

Perhaps the government could institute a rule that if a maelstrome of litigation is used against other humans then the entire organization would be disbanded and the members all forced to pay restitution to the world.

In this case, since the RIAA has no other option, they could invoke the rule and let the government public domain all their assets in exchange for some fat payouts to the criminals at the top of those organizations.

(Feel free to correct me if I've got the Dune rules incorrect. It's been a while.)

Re:Dune

[Imrik]

That reminds me of the rules about nukes in Dune. In order to prevent their use against others there was a rule that anyone who uses nukes on other humans would have their entire planet nuked (by the spacing guild I think).

(Feel free to correct me if I've got the Dune rules incorrect. It's been a while.)

iirc the rule was that if you use your nukes against anyone else, the spacing guild cuts off access, leaving you stranded.

I disagree

[Skapare]

(I say fines and not compensation. Fines should go to the public and never to the accused, who only should get actual expenses covered. In Ius Commune, a firm principle is that neither the accuser nor the accused must ever benefit economically from the justice system. Rewarding the victim makes becoming a victim desirable, just like rewarding the accuser makes accusations more profitable than avoiding the initial issue.)

I disagree ... in part. The victim (the defendant in a wrongful lawsuit) should, absent any proof that the defendant tricked the plaintiff into this action (that itself should also be a crime with fines and even jail time, in a separate criminal procedure), receive not only actual expenses, but certain additional compensations. One of those should cover the harassment and stress aspect. We're not talking about millions of dollars here. Maybe at most $50,000 prorated per year the case dragged out.

Plaintiffs often are at an advantage in obtaining an attorney to represent them on the basis that with potential high rewards, the attorney could reap many times the actual expenses on a big case. We see this all the time, especially in medical cases. Defendants, however, don't get the advantage of attracting an attorney to represent them in most cases because of the general lack of reciprocity in the reward mechanism.

I do agree with the principle that neither party should benefit from the judicial system. The end result should be to make the harmed party whole again (or the equivalent thereof). To the extent that a plaintiff's case should be able to attract representation by virtual of making the lawyer rich from it, the defendant should be equally able to attract representation by making that lawyer rich from it (whichever wins gets rich, presumably). But I think maybe the best way about this is to cut back on just how rich the lawyers can become in these cases, while still providing a means for parties that cannot afford lawyers to attract them on a contingency basis (for both sides).

What caused RIAA to target Lindor?

[suck_burners_rice]

I've read the previous /. stories as linked from this one, plus lots of the comments, and what I'd really like to know is how this whole mess started in the first place -- if Ms. Lindor never used a computer, let alone downloaded any music, then what caused the RIAA to target her for one of these lawsuits?

Re:What caused RIAA to target Lindor?

[Shauni]

Reading one of the comments made early in the process suggests that she was the person paying for the internet connection used in the infringement (a connection used off and on by her relatives). At the time of the infringement, however, there wasn't even a computer in the house, and supposedly, the infringement was done by someone accessing the (unsecured) wireless router.

Re:What caused RIAA to target Lindor?

[NewYorkCountryLawyer]

Reading one of the comments made early in the process [blogspot.com] suggests that she was the person paying for the internet connection used in the infringement (a connection used off and on by her relatives). At the time of the infringement, however, there wasn't even a computer in the house, and supposedly, the infringement was done by someone accessing the (unsecured) wireless router.

1. She was the person who paid the Verizon bill.

2. She has never used a computer.

3. The only reason she is the defendant is because she is the person who paid the Verizon bill.

4. By the way, there is no evidence in the case that anyone else committed a copyright infringement, either.

can't separate proceedings take place via the bar?

[Trepidity]

In addition to being sanctioned by judges, a particularly egregious pattern of abuse by specific lawyers could be raised as an ethics complaint in the relevant state bar association, couldn't it? I suppose how likely that is to succeed depends on the particular state, and just how well you can pin something specific on a specific lawyer.

Huh?

[Jane Q. Public]

Do you know what "facetious" means?

Re:Huh?

[CartoonFan]

I most certainly do. Joking about something like that scares me. I've heard people joke about less serious violence and it does not reassure me when they say "I was just kidding". Ah well, it was facetious after all, so I suppose I should just let it go.

I would also like to say...

[Jane Q. Public]

... that they DON'T believe they are fighting for justice or morals. They could not be that stupid. They have used just about the most underhanded tactics ever seen in courts of law, and they have tried to sue children for hundreds of thousand of dollars (when the only possible "damage" the child could have caused them was a few dollars in royalties at most, even if guilty).

If they really feel that this is fighting for "justice", then they must be certifiably insane. Since I do not believe they are actually insane (though nobody has definitely ruled that out), then the only conclusion left is that they are greedy bastards who do not care about the public interest, including the welfare of your children, and instead are interested only in their own pocketbooks.

And I am not obligated to appreciate that.

Re:I would also like to say...

[NewYorkCountryLawyer]

they DON'T believe they are fighting for justice or morals. They could not be that stupid

Well I'm not going to comment on how stupid they could be, I haven't sufficiently plumbed those depths... but you are certainly right that "they DON'T believe they are fighting for justice or morals." It is about nothing but money, and they know it. There are some people who will do anything if there's enough money in it, and these are that kind of people.

Re:I would also like to say...

[CartoonFan]

... that they DON'T believe they are fighting for justice or morals. They could not be that stupid. They have used just about the most underhanded tactics ever seen in courts of law, and they have tried to sue children for hundreds of thousand of dollars (when the only possible "damage" the child could have caused them was a few dollars in royalties at most, even if guilty).

*sigh* That's what I figured. I kind of thought they actually believed that, though. So it's all about money, huh? How disappointing. Well, I guess there are people out there who will do anything for money. Sort of like hitmen or mercenaries or lawyers(though there still seems to be a few good lawyers left).

Comment removed

[account_deleted]

Comment removed based on user account deletion

Thank you

[Jane Q. Public]

for the confirmation that I am NOT insane for thinking so. Or at least not the only one.

:o)

Re:Thank you

[NewYorkCountryLawyer]

Thank you for the confirmation that I am NOT insane for thinking so. Or at least not the only one.

I've read many of your past posts, Jane Q., and you are decidedly NOT insane (at least not in the area of copyright law; as to the rest of your life, on that I can't comment).

Re:Thank you

[Jane Q. Public]

IANAL, but I do try to keep up with important topics as time permits.