Slashdot Mirror
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.
about the unfairness of the article in three, two...
You are a hero.
They are greatly appreciated.
That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments. Now my replies need to be thought out!
I mean, you look like one of us(except for the monkey suit).
The Kruger Dunning explains most post on
Awesome read. I wish this was required material for any judge presiding over the cases in question. I also wish for a pony.
The appropriate salutation is "a/s/l?"
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.
However, need to correct a very important typo...you have misspelled the www.groklaw.net web address (you have growklaw at least once in the paper).
The NSA: The only part of the US government that actually listens.
Yes, but the Department of Justice is not a branch of the government. It is a part of the executive branch. Your talk of justices indicates to me that you are thinking of the judicial branch, which, as I said, is not the same as the Department of Justice.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
a lot of what it comes down to, is a lot of the judges are older people that don't know much about computers cept enough to use one for the basics then you get a so-called "expert" to use fancy terms and they judge don't have a clue what most it means and get slammed. Other part is most the defendant's can't afford to fight a multi-billion dollar company and get short shit end of the stick
Saw your pic. I thought you were younger!
I used to be much younger. But that was quite a while ago.
Ray Beckerman +5 Insightful
--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?
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
A torrent link to the pdf can be found here!
If I can not smoke in heaven, then I shall not go. -- Mark Twain
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.
Eggs
Milk
Bread
Cat Litter
Soda
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, Edward Snowden!! Americans owe you a debt of gratitude (whether they know it or not..)
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
I have read the copyright law, but since I am not a trained lawyer I am confused on one part.
Is downloading infringement? or is it distribution?
Distribution makes sense to me, downloading(receiving) doesn't.
Am I to be liable if it turns out the book I bought from a bookstore is actually a copy of something some else wrote?
Where doesn't it say downloading is infringement?
AFAIK, All the cases had people whose software was downloading also had 'sharing' turned on.
The Kruger Dunning explains most post on
I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say...
Oh, and well done Ray, I will be saving this article as an example of why we need due process.
But I'll post this anyway. Your efforts are sincerely appreciated by many of us. I've read the article, and I hope that judges who read it will take a serious look.
I am currently actively involved in supporting a blogger in the UK whose right to free speech was recently threatened. I would not have had the interest or courage to become involved in this effort if I had not been exposed to the RIAA issue on Slashdot. Though the two types of cases differ greatly, the underlying message is the same: Individual freedoms must not be tampered with or trampled. You have expressed that basic truth very eloquently, and I hope you will continue to do so for a very long time.
"Here's what's happening. You're starting to drive like your Dad..." - Red Green
Funny, I didn't realize the ABA utilized slashcode.
I guess you didn't read my Slashdot interview and the comments which followed it, where I said quite clearly:
Thank you all for the interview, and for the rough and tumble comment period which followed it. I really enjoyed it. It was incredible fun. I've even learned an important new legal research method in the process. A lawyer can't just read a bunch of cases and statutes to know what the law is. He also needs to come to Slashdot, because if somebody here says something's the law, and it gets moderated to +5, then it's the law. Maybe lawyers don't know it, and Congress doesn't know it, and the judges don't know it, but sooner or later, I'm sure they'll come around.
The legal profession is just starting to catch up to Slashdot, but we'll come around.
Ray Beckerman +5 Insightful
It has become a geek meme. Can also be used as a pickup line, as in "Hey, babe, anyone ever tell you you're +5 beautiful?" Followed shortly by, "Hey, sweet stuff, I see you've barfed in your drink. Can I buy you another?"
Loose lips lose spit.
Yeh, we all thought you were fighting the good fight from your Mom's basement*.
On a serious note though, nice work, Mr NYCL. You are the first and only legal eagle I've come across who is well-grounded and rooted in reality. I hope others will follow your lead (if they aren't already).
Some men are pioneers and others are followers. You Sir, are a fine pioneer and for that we commend you. Man, you're like the legal profession's Columbo. Do you have a Mac? ;)
"Three eyes are better than one" -- Lieutenant Columbo
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:
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.
The society for a thought-free internet welcomes you.
Seems to me that the RIAA's quote in the appendix is quite interesitng:
when you fish with a net, you're gonna catch a few dolphins
Especially since you can see from the list of people they sued, that they have only sued dolphins(casual defenseless infringers), and not a single barracuda(large scale industrial pirates)...
Formal, nonetheless engaging. The article did have a few "think of the poor" phrases that seemed a little obtuse (in comparison to the rest of the article, which was impeccable), as justice meted for violation of copyright laws should be, ideally, blind -- listening to what's right vs. wrong instead of who is right vs. wrong. Imagining the worst, it seems it could be confused from the original intent of the article: allowing defendants to competently defend themselves.
The article does raise a question for me, however, as a standard person that could get caught up in something like this. If I were to get a judge who turns a blind eye to these seemingly common sense parts of a due process, would there be anything I could do to demand that I be given the rights to a fair trial, or would such demands be seen as contempt of court? I'm assuming it'd be poor sport to tell the judge that he's not doing his job, and even if granted a retrial, wouldn't win me many points with his replacement.
tl;dr: what's the best way a man can proceed if he doesn't get a fair first trial?
I am the richest astronaut ever to win the superbowl.
I couldn't fail to disagree more[0] :)
It's all very well us bitching about things on Slashdot, but people need to be out there making a difference (I'm just as guilty as anyone at being too lazy sometimes so I'm not on my high horse here).
In that vein it is great to see someone like NYCL - someone so obviously in tune with rational thought and even posting on Slashdot no less! - grabbing this opportunity to address the right ears with both hands.
I'm pessimistic to some extent too but nonetheless this gives us more hope than there would be otherwise.
[0] That is, I agree - for the benefit of any hard-of-thinking, shoot-from-the-hip modsters out there ;)
"Three eyes are better than one" -- Lieutenant Columbo
Ladies and gentlemen, I have uncovered a plot! A fiendish plot that undermines the very foundations of Slashdot itself!
Notice how Ray Beckerman goes out and defends people against the RIAA, to win the hearts and minds of Slashdotters. Then he uses that goodwill to get stories published from the firehose, onto the front page. What happens next is the really fiendish bit: he posts a series of comments on the article, whereupon the moderators invariably mod them up to +5.
Can't you see what he's doing? It all fits: Ray Beckerman is a karma whore! This is a bigger conspiracy than twitter and his sock puppets!
A very thorough yet accessible article. Very well done- a wonderful job of putting together a complex set of factual and legal issues. Do you suppose someone at the RIAA will read and (in any way) react to this?
My guess is that they've been reading it, and preparing a public relations counterattack. It's not in their nature to learn something from it; they're not programmed to learn.
Ray Beckerman +5 Insightful
5) None of the above.
Ray Beckerman +5 Insightful
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.
Do not mock my vision of impractical footwear
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.
It doesn't so much make a mockery out of the legal system but abuses it to browbeat its opponents.
The MAFIAA has a lot of money to back it. When someone with money wants to get you to submit, he uses the courts. For many rather simple reasons:
First, money. It takes a LOT of money to stand up in court against someone. Now, of course it costs both sides a lot of money, but as I said, they have more than you. Almost invariably so. And they choose their opponents carefully, I'm fairly sure they wouldn't go after, say, Donald Trump. Check their records and you'll see that you almost invariably have "regular Joes" on their target list. They don't even have to make remotely sure that they have a case at all. It's a FUD campaign, with the courts as the "muscle".
They drag you to court into an expensive battle. You have the choice now. Back down and pay their insane claims, whether you're guilty or not, or fight them and pay insane amounts of money for lawyers. Your choice, you're broke either way.
Oh, you mean suing them for expenses. Sure, you can. Unless of course they suddenly drop your case, leaving you empty handed, or drag the settlement of expenses for months and years. Tell me, how long do you think your creditors will want to wait? For the verdict that will come in a year or two? Anyone who thinks so doesn't deal with banks too often.
First they try to browbeat you into submission by using a lot of legal mumbo jumbo, a lot of bullying with exaggerated claims and a "moderate" settlement fee (this alone shows that they don't even consider their case good enough to win with a verdict, why should they be interested in a short trial? They have the time and money on THEIR side!), and should you fight it out, they wear you down by dragging it out like some well chewed gum, letting your bills pile up and simply and plainly trying to bleed you dry.
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
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. ).
In a fair number of instances you mention it appears the reality is somewhat far removed from what the RIAA lawyers state, or it appears statements were made with the clear intention to mislead.
Isn't that a punishable offense? If not it should be IMHO - at a criminal level so that it cannot be insured against or subverted by some more creative lawyering. One must keep in mind that if a lawyer is prepared to step so far out of the expected modus operandi to make such statements, actual misdirection is not too much further from the accepted course of action.
It's up to the judges to safeguard the system. So far, that idea apparently hasn't worked too well..
Insert
Did we hold a shotgun to EMI/Sony/... and steal their works?
Did we hold a shotgun to the artists and steal their efforts?
No. The artists and labels have decided of their own free will to work in a sphere that is overtaken by technology. Just like the flint-knappers and buggy whip manufacturers.
I? Who the fuck are you?
You must be new here.
Ray Beckerman +5 Insightful
Ray, You rock! Great article! I'm not worthy. I'm not worthy. Seriously, I sent the link to both my friends!
Thanks for reminding me. I need to send it to my friend.
Ray Beckerman +5 Insightful
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