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Oregon Judge Says RIAA Made 'Honest Mistake,' Allows Subpoena
NewYorkCountryLawyer writes "In Arista v. Does 1-17, the RIAA's case targeting students at the University of Oregon, the Oregon Attorney General's motion to quash the RIAA's subpoena — pending for about a year — has reached a perplexing conclusion. The Court agreed with the University that the subpoena, as worded, imposed an undue burden on the University by requiring it to produce 'sufficient information to identify alleged infringers,' which would have required the University to 'conduct an investigation,' but then allowed the RIAA to subpoena the identities of 'persons associated by dorm room occupancy or username with the 17 IP addresses listed' even though those people may be completely innocent. In his 8-page decision (PDF), the Judge also 'presumed' the RIAA lawyers' misrepresentations were an 'honest mistake,' made no reference at all to the fact, pointed out by the Attorney General, that the RIAA investigators (Safenet, formerly MediaSentry) were not licensed, rejected all of the AG's privacy arguments under both state and federal law, and rejected the AG's request for discovery into the RIAA's investigative tactics."
The words "honest" and "RIAA" don't even belong in the same sentence. /sigh
Yes. Truly amazing. The RIAA lawyer tells the judge that the University will destroy the data if the motion is not granted. Leaving out the fact that the University told him that the data has been preserved. And the Judge "presumes" that that was an "honest mistake"?
Ray Beckerman +5 Insightful
what is the point of tagging every story with 'story'?
also, the little ! above the tags.. I thought maybe I could 'vote' a tag as incorrect with it, but I've tried so hard to coerce my pointer over the ! only to see it disappear.
! (pronounced 'bang') is the logical operator for NOT. The tag gui just makes it easier for you to put a ! in front of a tag you put in, you know, like in case you forgot. But ya, it's a horrid interface really. Needs a lot of polish. The 'story' tag is the sytem-type tag. It's more for the firehose than anything else. (all +5 comments hit firehose with the system-type of 'comment', go figger).
Modding Trolls +1 inciteful since 1999
Several years ago a New Mexico Judge (IIRC) instructed the RIAA to bring further suits against individual defendants rather than join several in one action. For example, there is no accusation here that the various students acted in concert to infringe copyrights -- whatever each of them allegedly did, it was done on an individual basis. Did the University raise this issue with the judge? Does the ruling address it?
Well you're certainly on top of the issues. A number of judges, more than a dozen, have held that it is illegal to join the John Does. But the University did not raise it. The tenor of the motion was that they were looking out for the University's interests rather than those of the students.
Ray Beckerman +5 Insightful
http://tripsforjudges.org/ says otherwise. They just hide the income in different ways.
Corporate special interests are wining and dining judges at fancy resorts under the pretext of "educating" them about complicated legal issues. Nothing for FREE, a July 2000 report by Community Rights Counsel (CRC), showed that these junkets appear to be working as their sponsors intend, encouraging rulings that strike down environmental protections and line the pockets of junket sponsors. CRC's most recent report, Tainted Justice, released in March 2004, expands on Nothing for FREE.
You see, it works just like the "Fact-finding" junkets that Congress take each summer and around all the major vacation periods.
Running with Linux for over 20 years!
Do you know if this is this an appealable order?
Good question. Actually, there's a split of authority on the subject. In several circuits the order is appealable as of right. In at least one circuit, the order is not appealable as of right. I don't happen to know how they would rule in the Ninth Circuit.
Ray Beckerman +5 Insightful
I'm sorry Ray, but just how does an outside observer not draw the conclusion that the legal system is inherently corrupted? I know you can't answer the question (at least not publicly) and I and many others support your valiant efforts. However, its hard as someone from outside the US to not see your country as just the world's biggest banana republic. Where the law has the appearance of granite and the firmness of quicksand. A legal system whose flexibility is only ever exercised to the favour of power, never the other way. As an amateur student of early American history and the founding of your nation, I just find the underlying hypocrisy galling and the fall of the republic utterly disheartening.
I'm not here to be an apologist for erroneous decisions like this. In my blog post, after reporting the facts, I then wrote this editor's note:
Is it just me, or does this decision make no sense whatsoever? The Judge recognizes that the RIAA's investigation is insufficient to actually point to a copyright infringer, and that the only way to determine that there was a copyright infringement is to conduct a further investigation....but is directing the University, anyway, to turn over names of people who the Court recognizes may be completely innocent?
And I wrote a lengthy article for The Judges Journal, the quarterly publication of the American Bar Association written for the judges' section, for publication in its "Access to Justice" issue, in which I criticized this type of poor judicial work as creating an uneven playing field, and made 15 specific suggestions as to what judges like this needed to do that they were not doing.
The difference between you and me is that I can't afford the luxury of getting 'disheartened'. But I do get angry. And an illogical, indefensible decision like this one ticks me off.
Ray Beckerman +5 Insightful
Last I heard, the Ninth had the dubious honor of being the most oft-overturned Circuit of them all.
Of course, considering that this (my home circuit) apparently contains stupid judges in Oregon, and all of San Francisco, this should be no surprise to anyone.
"And while I think child molestors are scum"
What the Law defines as Child Molester could be very different from what you are thinking of.
Take the case of Genarlow Wilson who was convicted of aggravated child molestation:
http://en.wikipedia.org/wiki/Wilson_v._State_of_Georgia
Maybe in the future the USA would be executing 15 year olds for having consensual sex with each other, in order to protect them of course.
I believe they're already prosecuting them for distributing child porn because they send each other nude pics (kids these days...).
It'll be wonderful to be living in United Saudi Arabia don't you think?
I think the children need protection, but they also need protection from the government and the legal system ;).
Six federal judges have been impeached and removed from office, the most recent of them being Alcee Hastings.
It's funny you should ask that, because Oregon has early voting, and if they're anything like my state, they should have ballots in hand soon. I already voted this morning, in fact, even though the election isn't until November. You know how after you vote for the presidential election, senators, representatives, propositions & whatnot, there's that HUGE list of judges that you vote "yes" or "no" on? That's a vote to recall them.
So if you see one Michael R. Hogan, mark your ballot "no" and you're voting not to retain this guy (in other words, you're voting to fire his ass). If you don't have an early ballot, you can also do it at the polls in November, assuming you remember that long.
If a majority of voters vote this guy out, he's fired, but it rarely happens unless a judge ticks off enough people.
Yet despite that, he's now in the house of reps... Lord, love a duck.
When information is power, privacy is freedom.
Let's not lose sight of the forest for the trees.
The University of Oregon and the Oregon Attorney General did a great, great thing here.
1. They were the first institution of higher learning to actually make a motion to quash an RIAA subpoena.
2. Their motion papers and their reply papers were both fantastic.
3. Other colleges and universities emulated their motion papers and made similar motions.
4. They made the all important point about how the RIAA's "evidence" does not point to a copyright infringer, and the Judge -- despite the irrationality of his order -- recognized that.
5. They made the all important point about MediaSentry operating without a license, a point which has been taken up by many other people in many other jurisdictions, leading to investigations of possibly criminal conduct in North Carolina, Michigan, Massachusetts, and elsewhere. (And PS-don't be surprised to see such an investigation launched in Oregon, since the Oregon Attorney General has gone on record with this issue.)
6. The motion overall was extremely beneficial to the students; had the motion been granted, that would have been the end of it -- 17 RIAA victims would have been spared further persecution.
7. The misjoinder of John Does issue, and the illegality issue, and many other issues, are still preserved for the John Does to raise, so they haven't lost anything.
8. Other colleges and universities, based upon the Oregon AG's papers, have taken a second look at their policy of RIAA appeasement, and some are showing recalcitrance for the first time in 5 years.
So in my book, the Oregon AG and the University of Oregon did a great thing. My hat is off to them. And I think history will show that they were right, and that they made an important contribution.
Ray Beckerman +5 Insightful
could have been a woman doing all of that ;-P
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
I find this rather illogical:
1. Under the law, the Judge can't issue a subpoena to obtain the identity of John Doe unless the plaintiff has evidence that the John Doe committed copyright infringement.
2. The University of Oregon showed, and the Judge agreed, that the RIAA's evidence does not show that the John Does committed copyright infringement.
3. The Judge correctly quashed the subpoena.
Here comes the illogical part.
4. Then, instead of ending it there, he tells the RIAA they can issue a new subpoena which asks for the identities of innocent people so long as their subpoena doesn't say anything about copyright infringement.
Hello. Anybody home?
Ray Beckerman +5 Insightful