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."

Comments

Honest?

[Gewalt]

The words "honest" and "RIAA" don't even belong in the same sentence. /sigh

Re:Honest?

[NewYorkCountryLawyer]

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"?

Re:Honest?

[CorporateSuit]

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"?

RIAA: If you don't grant the motion, they'll destroy all the data!
Judge: What makes you come to that conclusion?
RIAA: Because that's what we would do!

Re:Honest?

[BlackSabbath]

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.

Re:Honest?

[NewYorkCountryLawyer]

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.

Re:Honest?

[causality]

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 was just going to make a quick post in which I would say something like "this seriously makes me wonder just how difficult it is to impeach a judge," then I saw your comment. I can say that from inside the US it also looks like the world's biggest banana republic. Nothing is as it should be and this is only becoming more true as time passes.

The reason why I refer to the general public with terms like "sheep" or "sheeple" or "bovine idiots" is because they accept this without question. No threat to their money, their liberty, or their well-being is ever sufficient to prompt them to think critically and stop accepting the party line(s) at face value. All it takes is for the talking heads on CNN or Fox News to frame a phony debate in the form of a false dichotomy and they buy it, so long as the phony debate is nuanced and there's lots of chatter about it. The truth is, if there were any real philosophical differences between the two parties concerning the role of government, it would not take 9 months of campaigning to point them out.

WIth the exception of a very few, no one with any real media presence points out that the only disagreement between the Democratic candidate and the Republican candidate is how to carry out the expansion of the size and power of government. One candidate wants to expand the size and authority of government for reasons A, B, C while the other candidate wants to expand the size and power of government for reasons D, E, F and that's the basis of the election. There is no mention of whether it should be expanded, whether what we are doing now is remotely sustainable and whether continuing down the same path is going to help or harm the country.

What you point out about the legal system is unfortunately just a symptom of a much deeper problem. The real problem is that the media and the economy have become increasingly centralized over the last century and the number of people controlling both could probably all be seated comfortably in a relatively small room. For example, when the news outlets first started talking about the idea of bailing out Bear Stearns, I knew without doubt that it was going to happen, that the false debate and "controversy" only served the purpose of providing the appearance of legitimate dissention because without it, the people might actually wake up and realize that all is not as it seems. Americans need to seriously ask themselves whether they have ever once seen a major decision like this that a) was hyped up in the media and given lots of coverage and b) went against the desires of a monied interest. The sad thing is that not only do most Americans not understand these things, most of them seem like they don't want to understand -- apparently the latest celebrity gossip or sports scores or artificially hectic lifestyles (the new status symbol) are much more important to them. While I think that these people deserve what's coming, it saddens me that many who do not share their willful ignorance are going to suffer as well because everything is global now; there is no more "small and local". I hope that those outside the USA realize that no matter how you feel about Americans, the soverignty of the USA is just about the only thing that is currently standing in the way of a one-world government or a system of 2-3 global factions in the "but Oceania has always been at war with Eastasia" sense and that the USA is not being run by people who act like they want to maintain that soverignty.

Illegal joinder

[l2718]

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?

Re:Illegal joinder

[NewYorkCountryLawyer]

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.

Re:Illegal joinder

[CodeBuster]

The tenor of the motion was that they were looking out for the University's interests rather than those of the students.

Unfortunate, but not surprising given the relatively low value that many universities place upon their undergraduates in general these days (and especially individual undergraduates...just another brick in the wall to them when they have 20K+ attending their school). They may care about undergraduates in the aggregate, as in what percentage of the brightest and most promising freshmen they are attracting, but undergraduates don't generally donate large sums of money to the university endowment or help research professors secure grant money or publish lots of peer reviewed academic papers (how can they? they are only undergraduates). Individual undergraduates might get better treatment depending upon how wealthy or famous their family is and whether or not they are members of the corporate elite or the political class, but if you are not the scion of a wealthy or powerful family then forget about the university going out of its way to assist you (particularly in legal matters that might cost the university lots of money). They would rather throw you to the wolves than pony up money and resources to protect you from litigation. At least, this is how it seems these days. Everyone is so afraid of getting sued that if it doesn't protect their own skin they just roll over and do what the opposing attorneys want in exchange for not getting sued...its the lawsuit society and seems like it is only getting worse. I suppose that will end this rant for now, but surely I cannot be alone here and other people have experienced similar things or drawn similar conclusions based upon what we read in the news.

Re:Illegal joinder

[NewYorkCountryLawyer]

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.

Easy defense

[clang_jangle]

The Court...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.

Sounds like the defense will have it easy. IANAL, but I'd expect the moment of being served on this one is probably a good time to file the countersuit.

Never easy, but expensive

[l2718]

Defending a lawsuit is never innocent. Even if you don't owe them anything, you actually have to prove it. The RIAA will trot our "experts" who will testify that their "evidence" shows you are likely to have infringed copyright. To fight this you at the very least need to pay a good lawyer, and will probably need some experts of your own. Even if you have the skills to represent yourself, you can't recover the cost of your own time spent on this [IANAL but I think that the lawyer's guild got a law passed so that people who represent themselves can't collect attorney's fees if they win]. Now add to this the emotional stress of fighting a deep-pocketed corporation and dealing with the judicial system, and you'll see that there's nothing "easy" about being sued.

Discouraged Trolls

[Anonymous Coward]

This is the shittiest FP ever. It's like you people aren't even trying anymore.

It's the economy. We're all worried about being laid off. And job openings for Trolls are few and far between. Why, the RNC just canned a bunch who were originally hired to Troll Digg slamming Obama!

And then there are the McCain trolls picking on his age and anger. They're losing work too because of his poll numbers and the economic worries.

I used to be a Perl troll but then that turned out to fizzle out. I've been trying to break into Python trolling, but then again, it's tough out there. Maybe when I get really desperate, I'll try to get some Apple troll jobs - but they pay shit because, aside from the neo-fanboys, nobody falls for it anymore.

The quality of trolling has gone done horribly too! There was a time when you could create a shit load of comments with something the was actually intelligent - and it was appreciated because it gave the other side a chance and excuse to vent their opinions. Now, it all "sucks", "fags", "you're an asshole", etc... Nothing intelligent. It's sign of our economy. Quality is just going down hill fast!

I have to go back to work. Th RIAA is right! Those kids are stealing music!

Well, this raises an interesting question...

[bigstrat2003]

How much did this judge get paid for his decision? Because there's no way an honest man could've come to such a conclusion.

Re:Well, this raises an interesting question...

[Pebby]

It wasn't money. The RIAA offered the judge a 3 album contract to help him finally realize his dream of pop stardom. Look for the debut album, "Judge, Jury, and Executioner" from 'MC Gaveltron' this Christmas.

Re:Well, this raises an interesting question...

[darkmeridian]

The decision was issued by a federal judge, who is appointed for life. That's a pretty sweet gig and I doubt they would be swayed by only money, as the penalty for bribery is very severe.

The long and the short of it is that the decision addressed the University's motion to quash the subpoena. The Judge granted the motion to quash, and allowed the plaintiff to file a more limited subpoena. There was no harm and no foul (aside from legal fees) from the overly-broad initial subpoena.

If there was a violation of law regarding private investigators, that's a matter for the state Attorney General to prosecute. A federal judge cannot enforce state law by himself in a lawsuit involving private individuals. Perhaps the state has an interest in not pursuing the claim that would be frustrated if a federal court asserted a state right (the prerogative to enforce its own laws) on the state's behalf.

You may be surprised to know that illegally-obtained evidence can be used in civil trials. The evidence can be admitted, and it's up to the defendants to file counterclaims for the violation of laws. That's when the state AG will get involved, hopefully, and make the RIAA machine responsible for its illegal investigators.

The decision was limited to a very narrow issue regarding a subpoena. RIAA made admissions that limited the scope of the subpoena. The judge found the reduced scope acceptable, so he dismissed the initial subpoena and invited RIAA to file a subpoena of proper scope.

Re:Well, this raises an interesting question...

[billcopc]

the penalty for bribery is very severe.

Sure, how many judges do you know that have been tried and found guilty of accepting bribes ? One, two maybe ? Oh, is it zero ? Right, because no judge would dare inconvenience one of their own, especially when the tide of corruption is unstoppable, why bother with such a damaging case ?

It's the kind of thing that puts your career to sleep, much like that young hotshot cop who thinks he's going to clean up the force. Next thing you know, he's doing traffic in some dead boring district because nobody wants him snooping around.

Re:Well, this raises an interesting question...

[Jerry]

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.

Re:Well, this raises an interesting question...

[Jah-Wren Ryel]

Yet despite that, he's now in the house of reps... Lord, love a duck.

What a joke, here is another.

[[cx]]

They probably told him they know all about his stolen Barry Manilow mp3s he has on his laptop in his chambers, justice was served shortly after.

It's just you.

[Anonymous Coward]

> or is it hard to believe that this and other judges are highly influenced by their own prejudices, to the point that they issue rulings that are legally unsound?

It's just you. The other day, there was a Supreme Court decision that said there was 'consensus' in the law that child rape not be punishable by death. Then someone pointed out that there was, in fact such a law. They did not reconsider their decision and the dissenters pointed out that they didn't believe that the decision had been based on any such consensus in the first place, so it was pointless to reconsider.

A while back, we had the $222k verdict set aside because the judge realized that he had, in fact, ignored important precedents (which the RIAA failed to notify him of).

In this case, if I had to guess, the judge doesn't understand why the discovery orders are so important to the defense and simply wants to get through this preliminary crap and to the 'real' case. Not knowing the RIAA, he apparently doesn't realize that they plan to drop their case once they have this discovery and send out settlement letters.

We on Slashdot know the RIAA better than most judges do because we hear about all their cases. Most judges are meeting the RIAA for the first time.

How many times has SCO been given the benefit of the doubt, after all? While we were reading dozens of ridiculous proclamations from them every day, Judge Kimball was busy with real work and it took him a while to catch on to the fact that they were shysters. And once he caught on, they fled his court to get bankruptcy protection. It's been what? Four years? Five? And SCO's case is STILL going on!

So no, it's not hard for me to believe that a judge would presume that a party was acting in good faith, contrary to all evidence, until it was personally demonstrated to them what kind of cock-smoking teabaggers the RIAA employs. After all, remember how many times SCO claimed that IBM was acting underhanded early on? I'm glad the judge didn't just take SCO's word for things. The judge waited to figure out for himself that SCO was, in fact, the cock-smoking teabagger so that he could deal with things appropriately.

The annoying part is that it usually takes the judges a while to realize this, and shysters like SCO & the RIAA make sure they're in a different court by then, whether they have to drop & refile their case or seek bankruptcy protection.

Re:It's just you.

[hairyfeet]

As for the child rape "consensus" thing,they were talking about MILITARY law. Never in the history of our country have we set civil law by looking at military law,and frankly I don't want to start now,thank you very much. And while I think child molestors are scum,the simple fact is after McMartin and The little Rascals day care cases how ANYONE could think it is a good idea to execute someone for rape of a child is beyond me. Anytime you are dealing with such a hot button explosive charge the risk of "guilty until you can prove you are innocent" is just too high. And as we have seen over and over again, someone will take it too damned far. See executing the retarded,executing children,etc. Not to mention the whole "repressed memory" mumbo jumbo. Would you be for executing someone based on a memory?

As for the RIAA, as we have seen their "investigating" gets your printer charged with file sharing and time and time again we have seen states getting onto them because of using unlicensed investigators,yet they still continue. Why? Because you have judges like this that will ignore everything put in front of them and rule for them anyway. News Flash *.AAs of the world: you model is a dinosaur. Join us in the 21st century or please go away and die.

If you lower your prices($20 for a 30 year old album,WTF?) and offer a better product(embedded album art and liner notes,links to contests involving the artists,etc) you will get the customers. All your beating everyone over the head and buying off politicians is doing is making even the honest folks hate your guts and you know what? Very few folks have problems ripping off an @sshole who is screwing them with their monopolistic practices and buying off our legislators. There is NO reason why we shouldn't be able to rip our movies and music easily to our now gigantic hard drives and watch them without the disc. Instead of allowing us an easy way to use what we pay for you get brain trusts like this one who stand up in court and say ripping your cd to your iPod is NOT fair use. You see,greedy sh*t like this is why everyone hates you. And you'd be surprised how many people don't see any problem with ripping off someone they hate,especially if they feel they were ripped off in the first place. So while I got my tunes in the '80s on CD before you really started cranking out the garbage,I don't really see how you are going to get the young folks on your side with crap like this. Your customers hate you,your artists hate you,pretty much everyone except your lawyers HATE you. And one doesn't have to have a masters degree in business to know that isn't a good situation to be in.

"Honest Mistake"

[m509272]

These clowns have started how many lawsuits? There's no such thing as an "honest mistake" at this point in the game. Can the judge be honestly this clueless??

Re:Discouraged Trolls Vanishing Troll Habitate

[infonography]

It's understandable due to the collapse of bridges across the country that these poor creatures are being driven onto the net.

Hello, I'm Sally Struthers and here at World Troll Outreach we are helping poor unfortunate Trolls become self-sufficient helping them to move up from living under bridges and harassing goatse or netusers by offering hair dye and Elf/Spook ears so they can pass as nerds and get help desk jobs. Surprisingly Grooming standards for both Trolls and Help Desk workers is very similar.

For pennies a day you can help Please act now.

Re:Appeal?

[NewYorkCountryLawyer]

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.

Re:Appeal?

[MrNaz]

"it seems like the judge has decided that, whatever the law says, this matter is a waste of their time"

Never attribute to laziness (or anything else for that matter) what can adequately be explained by a bribe, particularly when an organization like the RIAA is involved.

You vote "no" on your ballot, that's how.

[Xenographic]

I was just going to make a quick post in which I would say something like "this seriously makes me wonder just how difficult it is to impeach a judge," then I saw your comment.

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.