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ABA Judges Get an Earful About RIAA Litigations
NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article.
FYI, the Justice Department != the judicial branch. In fact, the Justice Department is and has been under a lot of scrutiny because of its political bias.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
The Department of Justice (DOJ) is an executive branch department (Wikipedia Entry). The judicial system is made up of Judges at most levels, and justices are the supreme court level. To laymen, that distinction it one of terminology, not job (though they don't judge cases the same way a trial court does, and the terms have some meaning.
A torrent link to the pdf can be found here!
If I can not smoke in heaven, then I shall not go. -- Mark Twain
I'll second that! I'll never need this info personally, but feel this is for a greater good. The voice of NYCL is a breath of fresh air compared to the hostile assholes who are waging a war on potential customers and anyone who gets in their way. To bring some fairness to the people who are getting railroaded by the RIAA and their draconian tactics is a very, very good thing. Doing something helpful for someone you may never meet is commendable.
Thank you, count.
I'm a Sudoku fan myself.
Ray Beckerman +5 Insightful
Definitely my favourite Slashdot user.
Such dedication to the greater good is like a rare gem. So rare, in fact, you start doubting it even exists anymore. For those of you who don't know, Ray Beckerman has been fighting the RIAA since a long time, and has been great at it!
"The agriculture ministry is not in charge of Gundam" - Japanese ministry official.
By all means, RTFA, as the following will be put into absolutely needed context, but here are the suggestions themselves:
Suggestion 1. Be alert to misjoinder in "John Doe" cases.
If a court is presented with a "John Doe" case that joins more than one defendant, under well-settled principles the case should be dismissed as to all John Does except John Doe number one. Plaintiffs should be ordered to show cause why they should not be held in contempt of the November 17, 2004, order of the district court in Fonovisa v. Does and subject to Rule 11 sanctions. And because there will likely be no defendant's counsel present, the court should read the plaintiffs' response with a critical eye.
Suggestion 2. Require in personam jurisdiction and venue.
If a court is presented with a John Doe case that fails to set forth detailed factual allegations of the basis for venue and for in personam jurisdiction in that district, the action should be dismissed.
Suggestion 3. No ex parte motion practice.
Nothing should be granted ex parte unless it involves an order providing for meaningful notice of the motion for discovery to be afforded to the John Doe and to the ISP. The order should state that the ISP is to be provided with a full set of papers for transmission to the John Doe, and should provide ample time from the Doe's receipt of such papers, consistent with the court's usual practices for motions on notice, to respond. These should include everything a defendant is normally entitled to receive under the court's usual rules and practices, including the summons and complaint, all of the motion papers, and the court rules, notices, and other materials supplied to defendants.
Suggestion 4. Make explicit the legal authority upon which discovery
applications are permitted or rejected.
Justice will be well served if a court is able to take the time to scrutinize the statutory basis invoked for each discovery application, cite the authority supporting its rulings, and deny discovery applications on their merits if they are not warranted by existing statutes or case law.
Suggestion 5. Scrutinize John Doe pleadings and evidence without being intimidated by technology jargon.
The complaint, of course, affords the opportunity to ensure that plaintiffs have validly pleaded a copyright infringement claim and that the evidence is admissible and covers all elements of the claim. It is easy to be overwhelmed by impressive-sounding technical and pseudo-technical jargon. Allow me to observe that if the court and the court's law clerks and law secretaries (many of whom are "digital natives") do not understand the case, that may be a sign that the plaintiff has none.
Suggestion 6. Carefully evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Careful evaluation of a complaint's sufficiency on a motion to dismiss may ultimately spare defendants significant and unwarranted hardship. A court, therefore, should stay all discovery while the motion is pending, and, if it denies the motion, certify the order denying the dismissal motion for an interlocutory appeal.
Suggestion 7. No routine consolidation or "related case" treatment.
A court need only follow traditional principles for consolidation and "related case" treatment. There is no need to create a special exception for these plaintiffs. Where the defendants are unrelated to each other, their cases are unrelated to each other and should be treated as such.
Suggestion 8. Keep discovery short and sweet.
If, and only if, the plaintiffs can muster an evidentiary showing that their case has merit and that the defendant committed copyright infringement, then the court may allow (1) a deposition of the plaintiffs; (2) a deposition of the defendant; and (3) an examination of the hard drive by a mutually agreeable independent neutral forensics expert whose fees will be advanced by the plaintiffs and will be treated as a taxable disbursement to ab
All I want to say is God Bless you, Ray Beckerman.. You are the lone voice crying in the wilderness against the RIAA/MPAA... May you continue fighting the good fight!!
Thank you for your kind words. But I am not alone. I have been joined in this fight by many fine men and women all across the country, lawyers and defendants alike. We learn from each other, and help and support and get strength from each other.
Ray Beckerman +5 Insightful
The RIAA has sued and settled with innocent people. http://en.wikipedia.org/wiki/RIAA_efforts_against_file-sharing#Criticism The RIAA has been criticized in the media after they subpoenaed Gertrude Walton, an 83-year-old grandmother who had died in December of 2004.[94] Mrs. Walton stood accused of swapping rock, pop and rap songs. The RIAA in 2003 attempted to sue Sarah Seabury Ward, a 66 year-old sculptor residing in Boston, Massachusetts. They alleged that she shared more than 2,000 songs illegally. The RIAA dropped the suit when it was discovered that she was a computer novice. The case was dismissed, but without prejudice. In a Brooklyn case, Elektra v. Schwartz,[95] against RaeJ Schwartz, a Queens woman with Multiple Sclerosis, the RIAA's lawyers wrote to the Judge that they were in possession of a letter in which "...America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffsâ(TM) sound recordings were downloaded and distributed to the public without Plaintiffsâ(TM) consent.â After the defense received a copy of the letter, it turned out that the letter merely identified Ms. Schwartz as the owner of an internet access account, and said nothing at all about "downloading" or "distributing".[96] The RIAA has also been criticized for bringing lawsuits against children, such as 12 year old Brianna LaHara in 2003.[97] The RIAA also attempted to sue Candy Chan of Michigan, for the alleged actions of her daughter, 13 year old Brittany Chan. Under the threat of a possible defendant's motion for summary judgment and attorneys fees, the RIAA withdrew the case Priority Records v. Chan.[98][99] When the court ruled in favor of the mother, dismissing the case, the RIAA proceeded to sue her child. However, prosecuting a minor is more difficult; the Michigan federal court required the RIAA to make provision for a guardian ad litem to be appointed to protect the interests of the child, and required the RIAA to be responsible for paying the guardian ad litem. The RIAA failed to submit a workable proposal, and the Court dismissed the case. The RIAA recently sued the 16-year old son of Patti Santangelo[100] and as of this writing is attempting to force a 10 year old girl in Oregon to be deposed (she would have been 7 years old at the time of the alleged infringement)[101]. The RIAA has also filed a lawsuit against a woman who has never bought, turned on, or used a personal computer for using an "online distribution system" to obtain unlicensed music files.[103] This occurred again in the Walls case; "I don't understand this", said James Walls, "How can they sue us when we don't even have a computer?".[104] The RIAA filed a lawsuit against Larry Scantlebury, a man who had passed away. They offered the deceased man's family a period of sixty days to grieve the death before they began to depose members of Mr. Scantleburyâ(TM)s family for the suit against his estate.[105]
Thanks to eating disorders most chicks are reasonably good looking these days.
German courts _have_ rejected subpoenas for the names and addresses of more than 10,000 IP addresses with the simple reasoning that the plaintiffs had no intention at all to file a criminal case. They basically told them to bugger off and if they want to find out the names they have to do that themselves and not use tax payers money to help in their civil litigation. (The record companies basically claimed that these 10,000 people had done something criminal, in which case the criminal justice system would have to go to work to help solving the crime. However, it was just too obvious that this was just a pretence to get the names and sue in civil court). The police is not supposed to find music downloaders when they could use their time to find thieves, murderers etc. ).
By the way, the article was written largely in March of this year. In June I submitted a proposed epilogue mentioning a few bits of late breaking news on the 'equal access to justice' issue. The Judges' Journal didn't have room to add it in, but here it is.
Ray Beckerman +5 Insightful