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.

Comments

Re:Thank you for your efforts.

[countSudoku()]

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.

Re:Damn it!

[NewYorkCountryLawyer]

That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments.

No problem. You can keep on making snarky comments.

Now my replies need to be thought out!

Don't start on my account.

I mean, you look like one of us

I am one of you.

(except for the monkey suit).

I only wear the monkey suit for special events such as funerals, bar mitzvahs, and court appearances. I.e., just like you.

Question for NYCL...

[GeneralEmergency]

--Validity of Plaintiffs' Copyright Infringement Claim--
"Without actual distribution copies . . . there is no violation distribution right."
--William F. Patry, Patry Copyright, 2007.25

I assume that MediaSentry has some sort of signed agreement or license that gives the copies that they make in the course of thier "investigations-ha-ha-ha" the status of "authorized duplications". Without such a license or assignment of duplication rights, MediaSentry would be guilty of infringement themselves, would they not?

If said licenses or assignments do in fact exist, why can the "evidence" of the download transaction (a copy being made) be termed an act of "Unauthorized Distribution" if the party actively making the copy is explicitly "authorized" to make said copies?

   

Admissable

[hellwig]

IANAL, so when I read the 15 common-sense suggestions a lot of them seemed to me to be things the Judge should be doing anyway (hence the common-sense part). It sounds like because the defendant isn't able to hire a fully-competant lawyer who would be able to request these things automatically, the judges are allowing the over-paid RIAA lawyers to subvert basic court procedure, at the cost of justice for the defendant. I assume that when Ray is defending someone against the RIAA, he is following his own suggestions.

This is the problem with the court systems in America. We use things like precident instead of common sense. Judges are too scared to make decisions that aren't supported by the actions of other judges (though someone had the balls to set the precident in the first place). Common lawyers are too inept or lack proper experience to understand the rights that their clients have as defendants in a civil suit (the old movie cliche of a worthless public defender comes to mind here).

I understand common-sense is something most people don't have anymore, but when my life or livelyhood is at stake, I would hope the person defending me has a little.

Re:Thank you for your efforts.

[PunkOfLinux]

I think we need a -1 asshole option

Honestly, this doesn't make it 'easier' to do, this makes it more just to people. Regardless of your position on downloading music, you can't sanely argue that it's right that someone pays upwards of 2000 times what the damage is; there is no 'deterrence' feature to these rulings, as it is a civil matter. In fact, the only point of such rulings is retribution and punishment; there is no legal basis, as far as I am aware, for allowing civil rulings to include a deterrence factor.

Interesting...

[gillbates]

FTA: Only a single case in four years, Capitol v. Thomas,11 has ever gone to trial, and that one only because the judge denied the defendant's attorney's motion for leave to withdraw.

The possible reasons behind this interest me:

1. The defendants knew they were guilty and just decided to settle, or:
2. The defendants realized that, guilty or innocent, it's just cheaper to settle, and possibly:
3. Those with the resources to stand up to the RIAA find that - with the exception of the above case - they're all bark and no bite.
4. Which means that while you might not be able to avoid being sued by the RIAA, it isn't likely that you'll actually get to trial. Which futher implies that:
5. The RIAA is using the courts to run an extortion racket.

It seems that only the most unconscionable, reckless, and irresponsible corporate officers would authorize settling a debt for pennies on the dollar, yet this is exactly what the likes of Vivendi, Sony, etc... propose with their settlement offers. For this to be a legitimate debt, the CEOs of said corporations are breaching their fiduciary responsibility to their shareholders.

I'm wondering if I could buy stock in Sony and sue the CEO for devaluing the company's assets. After all, if downloading really does cost several hundred thousand dollars per infringer, why are they settling for a few thousand?

I'm waiting for them to get sued under RICO.

Re:Thank you for your efforts.

[Speare]

My favorite bit of advice,

Some courts have made pronouncements to the effect that the court does not "understand the technology" well enough to make the dismissal determination, and that therefore the determination should be made after completion of pretrial discovery. I submit that, if the court does not understand the technology well enough, it means that the plaintiffs have not pled their claim well enough and their complaint should be dismissed.

Thanks, NYCL.

Re:Judges, Justices, or Department of Justice?

[Artifakt]

A few of the Supreme Court appointees have actually been people without law degrees, and some more have been people who didn't actually first serve as judges in any lesser capacity. In fact, it used to be fairly common for the president of that time to appoint former governors or cabinet members to the court, and some of these had never practiced law, either from the bench or in front of it. What's surprising is that during those times the SCOTUS has been led by someone who wasn't ever a trial lawyer, they dealt with, on average, about 35% more cases per session, and whenever at least one justice wasn't, about 20% more.

Sweet piece of writing, mate

[Nefarious Wheel]

So you Yanks do keep the odd clear thinker around?* Good job, that. Bloody good job. I just hope the judges read the end notes too - there's a lot of good content in there, may ultimately be as useful to the process of achieving fair treatment as your well-crafted suggestions.

I may be a wee bit out of your jurisdiction but I maintain the appeal to fairness and reason presented in your paper holds universal appeal.

(Shakes head, walks away whistling.)

*Yeah, deliberate troll, on the basis that you're allowed to insult your friends. Deal.

Re:Thank you for your efforts.

[gd2shoe]

My favorite passage is related to yours.

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.

Re:Thank you for your efforts.

[penix1]

Ummm...Then how do you explain this:

http://p2pnet.net/story/3773

In its biggest cock-up yet, the Big Music cartel's RIAA has sued a dead woman who didn't even own a computer....

A choice line form that same article...

"I am pretty sure she is not going to leave Greenwood Memorial Park (where she is buried) to attend the hearing,"