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RIAA's SafeNet Caught In a Lie
NewYorkCountryLawyer writes "For the past 2 years, the RIAA and its attack dog SafeNet (formerly known as MediaSentry) have been trying to avoid disclosure in UMG v. Lindor by telling the judge that MediaSentry is NOT an expert, that it does not use any technical expertise to get the 'evidence', and that it does only 'what any other Kazaa user does'. We have just discovered that in administrative proceedings in Michigan, attacking it for engaging in the business of investigation without a license, MediaSentry has taken the exact opposite position, comparing itself to chemical engineers, surveyors, physicians, geologists, and other expert witnesses who rely on their technical expertise. Today we went public with some of the contradictions. Now let's hope Michigan's Department of Labor and Economic Growth finds out about it."
Those other professionals they're comparing themselves to need licenses to testify as expert witnesses. Engineers specifically need the second-tier "professional engineer" license.
hey NYCL, Re: your second link Oral argument was scheduled for 1st July, a week ago. Any news on the outcome? (Or do we have to wait a while?)
If you're referring to Capitol v. Thomas, oral argument on the "making available" issue was rescheduled for August 4th, 10 AM, Duluth, Minnesota, federal courthouse, Courtroom 1.
I don't know if, in your dilligent efforts to keep the /. crowd informed of developments, you have to pick & choose what you think is worth submitting,
I do pick and choose what I submit to Slashdot, and the Slashdot editors only select some of my submissions. The best way to stay on top of everything is to follow my blog.
but if you do, can I pre-flag the outcome of this development for submission? That the whole 'making available' theory, after having been accepted, could be subsequently chucked (presumably invalidating the entire outcome of the case), looks like it might be a significant nail in the coffin of the RIAA's war on the public.
Absolutely that is one of the most important things going on, and I will definitely submit it to Slashdot when I learn of it. However, that will be covered by the mainstream press as well, and Ars Technica and Wired and everyone.... So if I happen to be in court or something the day the news breaks, I might well get scooped by people who are professional journalists. Me, I'm just a country lawyer.
Ray Beckerman +5 Insightful
SCO has been playing this kind of "take the convenient position at the moment, and consistency be damned" game in court for FIVE YEARS. And it's yet to directly bite them in court.
Or is the churn in judges enough that they can always take it to a new, fresh judge?
Federal judges (these are civil cases brought in federal court) have life tenure and are very, very rarely removed, so no, the churn (and really there isn't a churn due to that whole life tenure thing) in federal judges shouldn't be a factor here.
Hope that helps. Us law students aren't all bad!
Is this admissible in the new case where they claim they are stupid or does it only stay with the case that the 'expert defense' was used?
Yes it's admissible.
Ray Beckerman +5 Insightful
I believe it's actually:
"Though the mills of God grind slowly, yet they grind exceeding small".
Ray Beckerman +5 Insightful
There is not a single word in Otter's "analysis" which comes from any of the cited documents. He appears not to have actually bothered to read them.
In fact, the RIAA and MediaSentry have consistently taken the position in UMG v. Lindor for 2 years that MediaSentry is NOT an expert and did NOT use technical expertise, but did "what any Kazaa user can do". They did not make this statement once or twice, but probably in the neighborhood of a dozen times. I culled just 3 of them.
Within weeks of making that statement in Lindor, Mr. Mullaney had made the exact opposite statement in the Michigan proceedings, saying MediaSentry was a technical expert which utilized its technical expertise in obtaining the evidence, just like a physician, a surveyor, a geologist, or a chemical engineer.... (all of which are clearly expert witnesses who would be subject to expert witness disclosure in federal litigations).
Any person who actually read (a) Mr. Mullaney's letter in the Michigan case, and (b) the three documents in the Lindor case, would have to agree with that statement.
Apparently Mr. Otter has some kind of grudge against me, and -- like his soulmates in the RIAA -- is willing to fabricate facts in order to 'make his case'. Mr. Otter please read the documents, and then please apologize.
Ray Beckerman +5 Insightful
Nutty McShithead's Law of Lawyers: For every Jack Thompson, there is an equal and opposite Jack Thompson.
In this case that equal and opposite is NewYorkCountryLawyer. For example: for every cubic metre of stupid bile Jack Thompson spews forth, NewYorkCountryLawyer intelligently puts forward one cubic metre of intelligent, well-informed argument.
Thanks again, for all your hard work. I may not be from the States, but I do realise how countries often get stupid ideas from one another. Your efforts are not only helping the States, they're helping to ensure the RIAA have less chance for nastiness in the rest of the world.
IANAL, but what the RIAA/SafeNet are arguing would appear (to me, a layman) to come under the umbrella of estoppel. But then again, so would the pleadings in the precedent (Greer v Kettle?) that you cite.
My understanding of estoppel is that it prevents (estops) a party from taking one position and then taking a contradictory one later on to disadvantage someone. (Maybe the time-line is important, and the difference between the situations? Maybe the earlier position must have been known, and thus create an expectation?)
Is anyone able to shed any light on this?
Actually, a bit of googling reveals that the Kettle thing is called "pleading the alternative". It seems to often be allowed, but differs from what the RIAA/SafeNet are doing.
This article discusses the distinction. In particular, paragraphs 2 and 3 provide a good summary:
"Judicial estoppel is an equitable doctrine that protects the integrity of the judicial process. Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996). It "preclud[es] a party from asserting a position in a case that contradicts or is inconsistent with a position previously asserted by the party in the case or a related legal proceeding." Tamburelli Prop. Ass'n v. Borough of Cresskill, 308 N.J. Super. 326, 335 (App. Div. 1998) (citation omitted).
Judicial estoppel does not prevent litigants from pleading alternative positions; rather, it "is designed to prevent litigants from playing fast and loose with the courts." Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005) (citation omitted). "[A] party must successfully assert a position in order to be estopped from asserting a contrary position in future proceedings." Cummings, supra, 295 N.J. Super. at 386. Prior success does not necessarily mean that the party benefited from the position taken, but only that a court allowed them to maintain that position and relied on it to make a judicial determination. Id. at 387.
Are you dense?
Expert witnesses are used to interpret hard to understand information. Domain specific information. If your jury can't understand the evidence you find, then it's not worth anything to either side. A expert witness has to have something to interpret for the jury. So if you find something as a professional security analysis, there is no problem using it as evidence, but most likely without an expert witness to interpret it they won't know what it means. Find all the evidence you want, just make sure it's understood by the jury.
Money is the root of all evil?
..or if you want to go to where you can buy your own look as KleinBottle.com. Those of you who've read the Cookoo's Egg may just recognise the name of the owner too.
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I rather suspect you mean that the defendant is not prosecuted for lying, as such. This is usually the case in much of Europe. Criminals who plead not guilty do not receive extra sentences for having lied as well as having committed the original crime.
In fact Finland is a member of the EU, its judicial system must meet European standards, and a judicial system which permitted plaintiffs to lie would fail the European Union human rights test.
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
Surely you lawyers have a fancy sounding name for such a document...
I believe the term you are looking for is Amicus Brief.