Judge Tells RIAA To Stop 'Bankrupting' Litigants

NewYorkCountryLawyer writes "The Boston judge who has consolidated all of the RIAA's Massachusetts cases into a single case over which she has been presiding for the past 5 years delivered something of a rebuke to the RIAA's lawyers, we have learned. At a conference this past June, the transcript of which (PDF) has just been released, Judge Nancy Gertner said to them that they 'have an ethical obligation to fully understand that they are fighting people without lawyers ... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it ...' She also acknowledged that 'there is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources,' while it is futile for self-represented defendants to resist. The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,' and also stated that the law is 'overwhelmingly on the side of the record companies,' even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story."

Comments

It's too bad

[mcgrew]

Too bad that our legislators aren't as honest and bright as this judge. Too bad that the mainstream media always sides with the MAFIAA; but it's not surprising, considering the same people who own the newspapers, TV stations, and radio stations also own the major record labels and movie studios.

The way American campaigns are financed it's a wonder we have any freedom at all. I'm thinking of the movie Brazil and the old TV show Dinasaurs with its "WeSaySo Corporation".

I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted. Ray, maybe you could use this angle in a court case?

Re:It's too bad

[moderatorrater]

I'm thinking of...the old TV show Dinasaurs

Oh, so you're the one.

Re:It's too bad

[Shagg]

I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted.

It's the uploader's job to figure out if something they want to distribute is covered under copyright. They're the ones getting taken to court.

Re:It's too bad

[HTH NE1]

the old TV show Dinosaurs with its "WeSaySo Corporation".

"WESAYSO. We know what you want. We know what you need. We know where you live."

Re:It's too bad

[Firehed]

No, often times downloaders are getting sued too. And while everyone reading Slashdot knows that it's copyright infringement, I'd put money on there being a fair few people that have been sued who don't know a damn thing about copyright law, and even a couple who honestly didn't know it was illegal at all or consider it wrong (back in the original Napster days, I sure as hell didn't know any better, though I was in sixth grade or so at the time). Remember, common sense isn't nearly as common as it once was. Granted, this doesn't make ignorance of the law acceptable, but it makes six-figure settlements that much more insane. I could see $1000 as the upper limit of what I could consider even somewhat reasonable (for a downloader) - it's more than enough to send the message, but won't drive people to take out a large life insurance policy and then go suicide bomb the RIAA HQ.

For uploading the material, I certainly understand a harsher fine, but what they're asking for in damages is still insane. Of the little music I've purchased in the last five years or so, I've pirated 100% of it first, and of what I've pirated and haven't bought, I just don't listen. Not everyone is like that of course, but what they're claiming for damages is completely unreasonable given what percentage of downloads actually are legitimate lost sales.

Re:It's too bad

[Anonymous Coward]

Ah, but with P2P, when you download, you upload. Under the old FTP-style download model, you could (and sometimes still can) get away with downloading copyrighted material without the copyright holder's permission, since only the uploader was infringing copyright. In BitTorrent-style file transfers, every participant (to a good first approximation) is a distributor.

Re:It's too bad

[geekoid]

"No, often times downloaders are getting sued too."

Only downloaders who are also distributing; Which is the default in most tools.

Read the copyright law again.

Common sense has never been common.

Re:It's too bad

[Anonymous Coward]

Too bad that our legislators aren't as honest and bright as this judge.

Yeah, uh, no. The judge basically said "this is wrong, and I'm not going to a damned thing about it."

The judge has bent over backwards to make the trial as one-sided as possible. This statement is just meaningless hot-air, since the judge has absolutely no intention of doing a damned thing about it.

I'm going to quote directly from the linked article - part of it is already quoted in the summary, but this part is important:

[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]

I suppose I shouldn't be surprised, it is Boston, the city that rewarded its police for demonstrating "valor" when they opted to not kill an MIT student who had a few blinking LEDs on her shirt...

Re:It's too bad

[Hatta]

What I can't figure out is how these statutory damages could ever be considered constitutional. The Eighth Amendment is short and sweet, and pretty damn clear in its meaning:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Any person with even the slightest shred of decency can see that fining someone 10,000 times the value of an item they misappropriated is excessive.

Re:It's too bad

[CyberKnet]

Sir, that is not correct. You do not appear to have a solid grasp on the concepts of uploading and downloading data.

If you have data on your machine, and you are sending it to a remote location that is called uploading.

If data is coming from a remote machine into your computer, that process is called downloading.

If one computer makes content available for another computer to pull in, the content originator is the uploader and the content consumer is called the downloader.

Hopefully this corrects your impression that originating content for someone else to retrieve (especially over most common P2P networks) is downloading. If not, please re-read this post until it does.

Re:It's too bad

[Stray7Xi]

I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted.

Simple, every legit MPAA movie I've ever acquired has had a copyright notice at the start. So if doesn't have one, it must be free to share.. right?

Re:It's too bad

[HTH NE1]

Sir, that is not correct. You do not appear to have a solid grasp on the concepts of uploading and downloading data.

No, your sources are wrong (and one of them is broken). Many sources get it wrong in a number of ways, and in turn the applications themselves are getting it wrong. Some define uploading as motion between a lesser machine to a greater one (desktop to mainframe), but the stature of a machine is irrelevant as it would fail to define transfers between equal peers. It also doesn't matter where the user is physically located, nor where the machines are located physically or network-topologically. The terms need meaning even when applied to a loopback connection.

The terms are tied to the client-server relationship. The client makes the request; the server responds to the request. The actions of the client define the direction.

Content is pulled from server by client:
Client POV: "I am downloading from you."
Server POV: "You are downloading from me."

Content is pushed by client to server (not implemented in P2P):
Client POV: "I am uploading to you."
Server POV: "You are uploading to me."

In layman's terms: an upload is always a push of data; a download is always a pull. To push does not imply someone else is pulling, nor vice versa.

If one computer makes content available for another computer to pull in, the content originator is the uploader and the content consumer is called the downloader.

You're confusing the roles of a client and server with the actions of uploading and downloading. The content originator is the server and the content consumer is a downloading client. The server would have to be receptive to receiving content pushed from the client to receive an upload, but a server cannot itself be an uploader. The commands emanate from the client.

Hopefully this corrects your impression that originating content for someone else to retrieve (especially over most common P2P networks) is downloading.

I said no such thing. Your subject is the operator of the server. The operator of the server is not downloading, nor is the operator of the server uploading. The only person doing anything is the operator of the client, and that person is downloading. Downloading to their own server, from which others can download.

There is no uploading in P2P.

Re:It's too bad

[HTH NE1]

Are you dense? Every bit you download was uploaded by someone else. You might as well say "there are all these people buying, but nobody is selling!" That's the same kind of nonsense. No one can buy anything without someone to sell it.

The terms are not analogous, but I'll humor it for you.

You can buy from vending machines, but there's nobody in that machine selling to you. You're buying from a machine, but the machine is not the seller. It is a vendor operating autonomously on the behalf of the seller according to the rules in its configuration that says you must provide metal disks in certain combinations of sizes and quantities for it to release the product (later uniform pieces of paper with certain magnetic properties in their ink). The people who stock the machine aren't selling to the machine.

When you are downloading via P2P, you are also also downloading from a machine called a server. Instead of money, it only requires a properly formed request from your client and will autonomously provide the requested content. The method by which the P2P server is stocked with files is not uploading. It instead is stocked by its other role as a client communicating with other servers, instructing them to serve.

Eventually, the prime stocker of the server is someone who originally ripped content from a CD or DVD. But ripping is neither uploading nor downloading. There's no network involved. For a vending machine, you could call this prime stocker the manufacturer of the vended goods. But, as I said, comparing uploading and downloading to selling and buying is a very poor analogy.

I'm not saying that the operator of the server is without liability. There used to be vending machines for cigarettes. They also sold packets of Wrigley's gum. These machines had no sense of the age of the person making the purchase and would vend cigarettes to kids just as readily as they would vend gum to adults if left unattended. Society tolerated their existence for a long time until they decided more control needed to be exercised and they were removed and a human gatekeeper placed in the transaction capable of determining whether you are a child or an adult and assigned the legal liability of getting it right every time.

Re:It's too bad

[Fennario]

Regarding the Eighth Amendment, the Supreme Court has held the "excessive fines" clause inapplicable to civil jury awards of punitive damages in cases between private parties, "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded." (Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989)) Therefore, while leaving open the issue of whether the clause has any applicability to civil penalties, the Court determined that "the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government." (Id. at 268.)

Re:It's too bad

[mrchaotica]

Fines are imposed by the government in criminal cases. Damages are awarded to the plaintiff in civil cases. They're not the same thing.

Re:It's too bad

[rohan972]

Nobody downloads them. Logical fail.

Ah, but how many times did nobody download them?
10,000 times, that's how many.

Re:It's too bad

[mrchaotica]

I believe a speeding ticket is a fine imposed by the government, yet is not due to a criminal act. Misdemeanors are not treated equally with felonies - only one makes you a criminal.

Nope, both misdemeanors and felonies are criminal acts. In fact, that's what the very first sentence of the misdemeanor Wikipedia entry says:

A misdemeanor, or misdemeanour, in many common law legal systems, is a "lesser" criminal act.

Re:It's too bad

[mrchaotica]

By the way, you are partially right: there is one category of traffic offenses that are not criminal. Those are offenses recorded by automated cameras. There's no actual human to act as accuser, so it's not possible to defend against (i.e., to exercise the defendant's 6th Amendment rights). So instead, the corrupt bastards in the government made it what you call an "administrative" offense: sure, they lose the ability to put the defendent in jail, but who cares? It removes all those pesky "civil rights" that impede the government's ability to impose and collect fine$!

i think this is the future

[circletimessquare]

technological advances are running so far ahead of society's ability to adjust to and digest the implications of new technology, that as the advances get too far ahead, you get these absurdities which amount to nothing more than entrenched interests fighting progress

the riaa is as if the monk scribe's union rose up and sued operators of printing presses. incredibly stupid, but also impossible since the introduction of new technology back then proceeded at a slower clip

as society advances, its rate of progress seems to be retarded in a number of ways. a sort of trailing edge of reactionism, militant mediocrity, and end of the world believers

if progress is to continue in this world, the trailing edge can no longer be relied upon to simply slide into obscurity unnoticed and powerless. a sort of organized backlash arms itself against progress and undermines it

we must actively fight the trailing edge of progress. whether on legal issues, or in the relam of social morals. social conservatives and reactionary business practices must be waged war on. simply because they are already waging war on progress

Re:i think this is the future

[moderatorrater]

the riaa is as if the monk scribe's union rose up and sued operators of printing presses

Actually, they did, or at least the Catholic Church as a whole fought the widespread possession of the bible. In many ways, monopolies act the same regardless of their target market, which is why you see a lot of corrupt popes back in the day.

Why should copyright-breakers have it easier?

[mi]

understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people

Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

The judge is part of the Judiciary, that slowly made litigation a very expensive option — heal thyself, and consider awarding legal expenses to the winners, whoever they are, by default (rather than by special request, as happens now).

Re:Why should copyright-breakers have it easier?

[yincrash]

What about the falsely accused?

Re:Why should copyright-breakers have it easier?

[homer_s]

The judge is part of the Judiciary, that slowly made litigation a very expensive option

The legal system is the mafiaa here.
The ABA refuses to accredit schools which do not spend enough money (hence charge students a lot of money) on professors and libraries - even though more students of these schools pass the bar exam in the first sitting that even Harvard (I forget the name of the school - it was out of Utah or Colarado).

It is a crime for someone with enough knowledge to help you by giving legal advice - can't allow competition you know. Basically, the lawyers write the laws to make themselves richer. And you are going to elect another one to the highest office now.

Re:Why should copyright-breakers have it easier?

[Anonymous Coward]

Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

You mixed them deliberately to imply that they are all the same, which they are not.

Defending one's self against running a red light is often much cheaper than defending one's self against a breach-of-contract, for example. When defending against a minor traffic violation, one does not face a mega-rich corporation with an army of lawyers with years of legal experience who capriciously litigate to drag the case out and make it cost more...but one very well may face such a situation if breaking a contract with such a corporation.

So perhaps we should ask, why should someone accused of a minor traffic violation have it easier that someone accused of downloading copyrighted data?

The answer seems pretty obvious to me: the impact of the crime is different, and as such the potential scope of damages (including the implicit damages of legal defense costs) should be different.

In the case of copyright infringement, the "impact of the crime" is still a hotly debated topic. In my opinion, this impact has been ludicrously exaggerated to the benefit of a very small (but wealthy) few, and to the detriment of the rest of humanity. Deliberate misrepresentation of who gets harmed and in what way has confused people into thinking the crime is a bigger deal than it is. IMO, the crime is petty at best, and there should be checks in place that prevent the damages from being amounts that could wipe out the average person's life savings, hence preventing them from needing to spend those same life savings trying to defend themselves.

And, of course, one's ability to receive justice in the courts should not be dependent upon how wealthy one is. Otherwise, the courts become nothing more than one more means by which the rich oppress the poor.

Re:Why should copyright-breakers have it easier?

[CorporateSuit]

Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

The other day, my girlfriend got a ticket in the mail saying "You were double parked, pay us $50. Your car wasn't there to give you the ticket, so we're sending it in the mail"

So you're right. This gross violation of rationality doesn't stop at copyright violations. It's spreading, and it needs to stop.

Re:Why should copyright-breakers have it easier?

[Jimmy_B]

I would rather be falsely accused of armed robbery than falsely accused of downloading music. If you commit a felony, the court will provide a lawyer if you can't afford one. Defendants against the RIAA, on the other hand, do not get court-appointed lawyers. That is the real problem. The Constitution requires that criminal defendants be provided with lawyers because otherwise, they could not defend themselves against the vastly superior resources of the government, even if innocent. That same imbalance exists when a large corporation sues an individual, but is not covered because corporations did not exist in their present form when the Constitution was written.

Re:Why should copyright-breakers have it easier?

[Anonymous Coward]

Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light

How many injuries and deaths are caused by downloading music? The Insurance Institute for Highway Safety (IIHS), in Virginia, has noted that there were more than 200,000 crashes caused by red light runners, resulting in 176,000 injuries and 934 deaths in 2003.

Re:Why should copyright-breakers have it easier?

[Trailer Trash]

Everyone is innocent until proved guilty

This is a civil case, there's no guilt or innocence or presumption of innocence.

Re:Why should copyright-breakers have it easier?

[PitaBred]

Tell her to request proof of the incident. The accused has a right to face her accuser.

http://en.wikipedia.org/wiki/Confrontation_Clause

Re:Why should copyright-breakers have it easier?

[Sasayaki]

Dear Sir/Madam,

We here at the Australian Recording Studios Enterprise Homes And Technology Section (ARSEHATS) are hereby serving you notice that on this day (Wednesday 29th of October, 9:44am) you did willingly and knowingly distribute content online to which the copyright belongs to our organization. An except of this copyright material has been reproduced below for your convenience;

Why

As you can see, this is clearly copyright infringement. Due to the Winnings Rightly Obtained Now Guidelines law (WRONG law 2008) which you yourself recommended this very day, we have been awarded a default settlement of $150,000 AUD (~$110,000 USD) per character of your infringement- this totals to $450,000 AUD (~$330,000 USD).

Due to the nature of the WRONG law, your guilt in this matter has been pre-determined and, naturally, there is no avenue of appeal for this verdict. As you are well aware, such a thing would clog our court system with unnecessary attempts by criminal pirates to weasel their way out of heinous crimes- instead, it's far better to just get what we want by default without having to prove it in a court of law, unlike everyone else on the planet.

You have 48 hours to reply.

Sincerely,

ARSEHATS.

Re:Why should copyright-breakers have it easier?

[Atlantis-Rising]

Um, lolwut? Corporations did not exist? Or large corporations did not exist?

Like, say, the Hudson's Bay Company, who at the time the Constitution was written, as with the British East India Company, probably had a greater ability to project force than most countries, and at various times in the past had actually exercised governmental functions?

Does Microsoft operate a fleet of warships and control its own country now?

the most ineffective ask, ever?

[petes_PoV]

it's terribly critical that you stop it

Leaving aside the incompetence of the statement, does a (mere) judge think that what he/she says will make any difference to the RIAA. After all, they're engaged in a *war* against all these heinous criminals. (ok, irony mode OFF)

Re:With friends like her ....

[pilgrim23]

This so reminds me of the tobacco cases that, once won, the wining lawyers turned around and sued the very people they represented because they wanted a bigger share of the blood money..
Somehow the Judge chiding RIAA weasels seems like a morality lesson from the Sopranos...

Sanity Check?

[CorporateSuit]

Who the hell is this judge? FTA:

THE COURT: They're not asking you for this, this is your son needs to pay $4,600 to the record companies, who are in desperate need of this money, unless your son can show that he has no way of paying it.

Yes, those record execs desperately need that money more than someone who just graduated from a tech institute! There were $600 in claimed damages! I know enough about law and punitive damages to know it's not set up to support billion-dollar corporations! It's to punish those who violated the law. Suing for punitive damages should not, legally, be considered a source of income.

Apparently justice is blind AND stupid in Boston.

Re:Sanity Check?

[Anonymous Coward]

Punitive damages shouldn't even be given to the plaintiff. Their intent is to punish, not compensate, so the money should just go to help fix that fourteen digit debt we've been racking up.

Re:Sanity Check?

[Puk]

Please read the rest of the exchange if you're going to criticize. The judge is clearly being sarcastic. From a brief review, I also see (in the same conversation):

MR. MANN: I don't know what the merits of the case were when the earlier court rendered a judgment against Mr. Atkinson.
THE COURT: There were no merits of the case, it was a default judgment, all that happened,' you sued, there was silence on the other side, and then you come up with a judgment of $4,000 because that's the statutory damages, and Congress says you can get it. These people never defended, if now they brought forward a defense --

and

THE COURT: But you understand this is a terribly vicious cycle. On the one hand, you say we bring them into court so we can examine them. They come into court without a lawyer. They haven't a clue what these proceedings are. We have been trying to explain it to people, and then because they don't respond, the numbers keep on going up and up, and at a certain point after 133 cases in my court and countless around the country, the plaintiffs are going to realize this is making no sense and making them look bad.

-Puk

Re:Sanity Check?

[idiot900]

Wow, you're dense. The judge was clearly being sarcastic in this comment. If you read the rest of the text, it seems awfully like the judge was trying to help Mr. Atkinson by implying that his son should tell the plaintiffs he has no money, having just graduated from school, rather than Mr. Atkinson giving his son money to pay the settlement.

This judge clearly feels that while the RIAA is legally correct, their heavy-handed approach to dealing with people who don't really cause all that much damage, cannot afford a lawyer, and have no clue about the legal system, is a despicable way to attempt to solve their problems.

Re:With friends like her ....

[Ethanol-fueled]

The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,'

Come on, now. Let's not be greedy or ungrateful. Sometimes change must happen gradually and we shouldn't bite the hand for feeding us so long as it is doing the Right Thing(tm).

Background

[philspear]

The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance', and also stated that the law is 'overwhelmingly on the side of the record companies', even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story."

I'm going to need a little bit more explanation that isn't in TFA. The judge has been presiding over a trial for 5 years in which only one side is allowed to speak? Is this the result of some RIAA-lobbyist induced law that says the other side doesn't get a say, or for some reason did the judge declare the other side didn't get to talk in this case? Are the next five years of the court case going to be "Now the RIAA doesn't get to talk, defendants only."?

Re:Background

[bob_herrick]

I believe the point is that the record companies are repesented by lawyers, hundreds of lawyers, who are trained in the law, and who have experience not just in the strategic use of the law, but in its tactical uses as well. The strategic uses include choice of venue, points of law to be briefed and argued, witnesses to prepare and examine, etc. The tactical uses include the taking of depositions, issuing subpoenas, and requiring access to documents and accountings. All of this can be arcane and difficult to fathom for a non-lawyer, and compliance can be expensive. Non-lawyers are at a disadvantage in both depolying these strategies and tactics and in executing them to the satisfaction of a court. It is not that the defendants were not permitted to speak. It is more as if they could not find the right words to say.

Judge did not create the situation...

[Anonymous Coward]

"The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance'"

What are you talking about? No, because she didn't create the imbalance. The legislators and litigants created it. The legislators by creating the relevant laws, the RIAA created it by suing people, and the people being sued provoked the RIAA by allegedly sharing the files in question. Copyright law exists to stipulate who is within their rights and who isn't, and the judge is there to PRESIDE over the case and the decision, the procedure for which is also constrained by law.

The imbalance exists because the RIAA has loads of money and the people they've decided to sue don't. Did the judge establish that situation? No. To imply that she's at fault for even hearing the case is silly (it's her job), unless you think the case shouldn't be heard simply because one litigant has loads of money and the other doesn't. It would be an interesting precedent.

Re:Judge did not create the situation...

[NewYorkCountryLawyer]

she didn't create the imbalance

As I said in my "Editor's Note" in the underlying article she has contributed to the imbalance:

[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]

Re:Judge did not create the situation...

[NewYorkCountryLawyer]

Is she not, as judge, ultimately responsible for seeing justice served in her courtroom? Surely she bears some responsibility, at least morally if not legally for what happens in her court. I think that's what is being suggested here.

I think the judge is responsible for seeing justice served in her courtroom and for enforcing the laws. Let me break down your point into two points.

"Legally"In my view Judge Gertner has erred in a number of respects, routinely :
-consolidating all of the cases although the defendants are unrelated;
-sustaining complaints which do not meet proper pleading standards;
-sustaining default judgment applications based on insufficient evidence and faulty legal reasoning;
-sustaining defective ex parte discovery motions;
-allowing ex parte motion practice in the first place;
-routinely allowing incompetent evidence to be used;
-routinely awarded unconstitutionally excessive damages. These are absolute legal errors. These are things she was legally required to do right, and has done wrong.

"Morally"Additionally, there are discretionary matters which she could have and should have done differently; here is where the "morally" comes in. E.g.,
-she should have required each record company to bring an officer of the company to settlement conferences
-she should not have combined the settlement conferences and other appearances for the RIAA's convenience
-she should have denied the pro hac vice motions of the Colorado lawyers, and of the Kansas lawyers who preceded them
-she should have ruled against the record companies on discretionary discovery matters where the cases did not warrant such expense, hardship, and terror;
-she should not have permitted settlements of cases by innocent people, which represents the majority of the defendants who settled;
-she should have denied the hard drive examinations;
-she should have seen to it 5 years earlier that every person who needed legal representation had legal representation;
-she should have seen to it that helpless people were not pursued.

Re:Judge did not create the situation...

[aussie_a]

So you're saying breaking the law is equivalent to wearing short dresses and makeup?

Re:Judge did not create the situation...

[NewYorkCountryLawyer]

This was under the "Moral" section, not the "Legal" section. You ask whether she had "power/ability". They are 2 different questions. Legally she does not have the power. However, being a federal judge, she has the "ability" to persuade lawyers to take cases pro bono. In fact, the court probably has a pro bono panel of lawyers who have volunteered to serve. Not to mention legal clinics, etc. If a federal judge calls up a lawyer and asks him to take a case pro bono, most lawyers would not say no. She only has to take 2 minutes of her time to do it... and in fact, on a net/net basis, she'd spend less time making those phone calls, than the time she spends engaging in meaningless pitter patter with pro se litigants. I.e. it doesn't cost her a dime. In fact it appears she made such a call to Prof. Nesson, and here he is, already doing battle with the Clone Army. So at least, after 5 years, she's starting to wake up.

Summary is Inflamatory and Unforgiving

[mpapet]

Summary author doesn't understand the role that judges in her position play. One of their jobs is to enforce the law, as it stands. She cannot reinterpret the law or rule along the notion of "what's fair" and expect to keep her job. Especially with the entertainment conglomerates so capable of funding another, more entertainment friendly replacement in the next judicial appointment cycle.

This kind of summary just burns bridges where they are needed most, as in, deep inside the legal system.

Please rewrite the summary praising the judge for committing, to paper, sound social and legal commentary that will make her next election/appointment cycle very, very tough.

Re:Summary is Inflamatory and Unforgiving

[maz2331]

Her next cycle? This is a Federal judge, who has a life term, and can only be removed by impeachment, and who's salary can never be decreased.

Re:Summary is Inflamatory and Unforgiving

[Gutboy]

Summary author is a Lawyer who has been fighting the RIAA for years now. I believe he does understand the role that judges fill, one is to make sure that the court is fair to both sides.

Re:Summary is Inflamatory and Unforgiving

[NewYorkCountryLawyer]

Summary author is a Lawyer who has been fighting the RIAA for years now. I believe he does understand the role that judges fill, one is to make sure that the court is fair to both sides.

Thank you, Gutboy. I've actually written an article about the very issue of the economic "imbalance" in these cases, and the unlevel "playing field", Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations. It was written for the "equal access to justice" issue of the ABA Judges Journal.

Re:throw the book at those pirates!

[Firehed]

Honestly, I don't 3x damages really make the risk/reward ratio enough to buy legitimately for anyone. The current 30,000x or so are way out of whack on the other end of things, but if you plan to deter piracy through lawsuits, you have to make people believe that they'll come out ahead financially by purchasing. There's no way to have a one in three chance of getting sued.

Don't get me wrong, I don't support maintaining a dead business model through litigation, but knowing that the most you could be fined for downloading an album is $29.97 tells people to go out and DDOS TPB because the amount they'd likely have litigated out of them is far less than the retail value of the product. It's like why you can't steal a TV, and then offer retail as payment if you get caught.

Bankrupt people

[the_arrow]

Bankrupt people can not pay their fees to the record companies, and neither can they (or will, probably) buy new music. It has been said before, but it seems like the record companies are shooting themselves in both their feet.

Re:throw the book at those pirates!

[vux984]

There is a damage component and a punishment component. Its reasonable for damages to scale up as actual damages go up... there is no reason to do the same for punishment.

The problem with the penalties for copyright is that they are punitively applied 'per infringement'. Getting nailed for $500 for violating copyright is actually a reasonable punishment, call it $2 damages, and $498 for punishment; that's a relatively fair outcome.

The problem is that sharing 22 songs SHOULDN'T be counted as 22 separate acts of infringement; the damages might be at most $2 x 22 = $44, plus the SAME $498 for punishment. So the final award for 22 songs ought to be around $542, not $11,000, and certainly not $222,000.

Swing and a...

[copponex]

It is a crime for someone with enough knowledge to help you by giving legal advice - can't allow competition you know.

No, it isn't, unless you claim you are a lawyer.

Basically, the lawyers write the laws to make themselves richer. And you are going to elect another one to the highest office now.

A lawyer who has 1) grown up on welfare, 2) has shown at least some interest in returning balance to income inequality which threatens our entire culture, and 3) will replace the Bush Administration with a cabinet full of something besides the Bush Administration.

If the ABA were under government oversight, you could pressure your congressperson to change the way it runs, or cut their funding. Since it has no governmental oversight, all you can do is bitch. That's the "freedom" of unregulated but necessary industry - they're free to extort money, you're free to waste your breath complaining about it.

With replies like this ....

[Anonymous Coward]

needs personal pronouns?

Re:gay nigger judge

[Anonymous Coward]

Since when does /. allow posting from jail. Get these fucking racists off of here.

Racism isn't illegal, and, as Nancy Gertner is not black, he's probably just a random jerk trying to disrupt communication.

Re:With friends like her ....

[Moryath]

It sounds like someone needs to take this transcript, build a very coherent response countering any points she screwed up on while congratulating the things she got right, and give her a counter to remind her that she has contributed to this problem by paying attention too much to the MafiAA side so far.

Re:With friends like her ....

[Original Replica]

" companies are represented by large law firms with substantial resources,' while it is futile for self-represented defendants to resist. "
..." lawyers turned around and sued the very people they represented because they wanted a bigger share of the blood money."

It's a symptom of a broken legal system when self representation is "futile" and legal fees become "blood money". Yes, some might argue that lawyers are expert, trained professionals, so it only stands to reason that it would be futile for an untrained citizen to stand against them in court. That argument would make perfect sense if you were talking about pros vs joes in a different venue like sports or some industry specific contest. But the purpose of a court room isn't to determine the best performance or find a winner and a loser. A courtroom is a place to find the truth in a legal or civil dispute. Now is some of the participants are unskilled at the labyrinthine dance of courtroom etiquette, then the process should merely become less efficient at determining the truth, not less accurate. That this is not the case show a onerous flaw in our system. A flaw which has allowed lawyers to become a elite class within our supposedly egalitarian society, just look at their pay scale and tendency to become government officials.

I realize that I am idealizing what our courtroom and legal system should be, but we have to pursue idealism in our societal systems to minimize the damage done by the imperfect humans that take part in those systems.

Re:With friends like her ....

[lucas teh geek]

if you're repurposing the gp's post you need to also replace "truth" with "profit" for it to even make sense. you missed the point the gp was making completely

Rip Their Guts Out

[Nom du Keyboard]

Until you rip the RIAA's financial guts through sanctions out you aren't going to stop them. A stern talking to just isn't the same thing.

Re:Rip Their Guts Out

[NewYorkCountryLawyer]

Until you rip the RIAA's financial guts through sanctions out you aren't going to stop them. A stern talking to just isn't the same thing.

It's not so much the "financial guts" of the RIAA. It's the lawyers, and it's not really about finance. An award of sanctions against an attorney is a black mark he or she will bear throughout his or her career.

And yes, sanctions awards are richly deserved against these lawyers, IMHO.

Terms out of date, and must be modified.

[redstar427]

Those terms as you stated, were created before P2P existed, and are no longer accurate, and should be changed to include new technologies and methodologies.

It's doubtful that using the old "This is what they terms have always meant." will fly in a court of law. I am convinced that most ISP's will agree, that P2P users are absolultely "uploading". All networking equipment I have managed calls it that.

Re:Terms out of date, and must be modified.

[stephanruby]

It's doubtful that using the old "This is what they terms have always meant." will fly in a court of law. I am convinced that most ISP's will agree, that P2P users are absolultely "uploading". All networking equipment I have managed calls it that.

The initial seeder is the uploader, just like when someone used to place a file on a bbs -- that person was the uploader. Those laws were originally designed to punish one person out of hundreds of potential downloaders, now these laws are punishing pretty much everyone -- not just each initial seeder.

In a court of law, you don't say "This is what those terms have always meant." You say "This is what those terms meant at the time." And saying, "It doesn't matter what it used to mean at the time, it only matters what that word means now." will equally get you laughed out of court.

There really isn't a correct answer.

[Estanislao Mart�nez]

That's a careful, nuanced analysis, which is definitely a big credit to you, but I'm afraid you're treating the meanings of these words as being more fixed than they actually are. The way I read you, you're analyzing and classifying file transfers not only in terms of the sender and the receiver, but also in terms of protocol type (client/server vs. peer-to-peer), protocol role of each party (client, server or peer), and request role (initiator vs. responder). This seems to give us the 6 following possibilities:

1. Client initiates transfer of file from client to server
2. Client initiates transfer of data from server to client
3. Server initiates transfer of data from server to client
4. Server initiates transfer of data from client to server
5. Peer A initiates transfer of data from Peer A to Peer B
6. Peer A initiates transfer of data from Peer B to Peer A

Now, I agree with you that the terms "uploading" and "downloading" seem to fit cases (1) and (2) best. But I would seriously entertain the hypothesis that this is merely because, historically, those two were the original file transfer scenarios, and thus, are the prototypical cases.

Now, you seem to be proposing that the terms can or should only ever mean cases (1) and (2). This is just not how language works, however. Basically, faced with cases (3)-(6), with a vocabulary of words that prototypically refer to cases (1) and (2), it will be very common for people to generalize the meaning of the words to cover those new cases. Now, there are several ways the meaning can be generalized, but the one that seems to be at stake here is to drop out the client/server distinction, and making the "uploader" be a responder that sends a file to an initiator that requests said file.

This is quite a natural semantic extension, linguistically speaking. Basically, the original usage examples for "upload" all describe case (2), but nothing about the examples can possibly tell what's essential to the meaning of the word, and what's just accidental to the examples. In simpler words, if you were a computer trying to infer the meaning of the word "upload" from examples that only showed type (2), you'd have no way of knowing whether the client/server distinction was essential and exceptionless, or whether you just happened to get a data set that didn't have any examples of the word being used in another sense. And you can't expect the way people infer word meanings from usage to be any better than that.

So really, I don't think there is any absolute, authoritative answer to give in this case. The best you can do is point out (correctly, I think) that senses (1) and (2) are the "best" in some statistical or prototypical sense. The key thing to keep in mind, however, is that the extension of the meaning of the word to closely related cases is quite unsurprising, and usually follows some sort of rule.

Re:With friends like her ....

[TechForensics]

These cases CRY OUT for the legislature to act. "Amnesty for File Sharers" should be the rallying cry. Hell, we granted amnesty to conscientious objectors who relocated to Canada during the Vietnam war. Why can't we do it for these poor folks? Are you listening, Ms. Pelosi? How about the File Sharers Amnesty Act of 2008? This travesty has gone beyond black comedy into the world of Kafka and nightmare.

Re:With friends like her ....

[gd2shoe]

You weren't paying attention to what he said, were you?

I realize that I am idealizing what our courtroom and legal system should be, but we have to pursue idealism in our societal systems to minimize the damage done by the imperfect humans that take part in those systems.

He wasn't saying that our courtrooms did find the truth, only that their ideological purpose is for finding the truth.

Re:With friends like her ....

[lysergic.acid]

um, why "coder"? why not "lesbian cyborg" or "zombie jesus"?

i mean, if we're going to ignore the GP's point and play mad libs instead, then at least be a little more creative about it.

Re:With friends like her ....

[sjames]

Only if coders somehow are granted the power to summon you into producing an application or go to jail.

That's the thing, participation in the justice system is sometimes compulsory even if you have done no wrong. If that happens and you can't scrape together a pile of cash (or a great deal of sympathy), the truth won't help you.

The substitution also fails since coders very rarely become government officials (they do sometimes become minor government functionaries but that's hardly the same).

Make civil cases like criminal ones..

[Eskarel]

The fundamental problem with these cases is that they are, for all intents and purposes criminal trials in civil court.

The people being sued are being charged with a crime "copyright infringement" with a statutory penalty that has nothing whatsoever to do with damages, but is punative in nature.

This doesn't mean that all civil cases need to be treated as criminal ones, or that punative damages in and of themselves are wrong(though often times they are excessive), merely that if you're going to ruin someone's life for a minimum of 7 years(the length of time after a bankruptcy before you can get credit again), for what is essentially a criminal statute, then they ought to have the same chance at a defense that your average drug dealer gets, and the same burden of proof.

These cases aren't about breach of contract, or negligence and they're not about recovering damages. They're about punishing, and should be treated as such, meaning government funded defense, and proof beyond a reasonable doubt. It's the same treatment you'd get for theft, and that's what the record companies are always claiming that you're doing.

Re:gay nigger judge

[bytesex]

Who knows ? 'Nancy' might even be a woman ! But then, this is the internet.

Re:With friends like her ....

[rtb61]

In this case it is note even about presenting a better case, it is all about a complete abuse of the system, why a company has basically set up a business to specifically target people who can not afford to defend themselves against the civil action and extorting money from them, Every time the RIAA has accidentally picked a litigant who can afford a legal defence they have lost, settled it out of court and buried it under non-disclosure agreements, except for one very notable case, that seeks to fully expose their pernicious behaviour.

It has to be the grossest and most public exploitation of the civil legal system, which emphatically displays the inequalities of a legal system, where one side simply needs to stretch out the case to the point where the other side cab not longer afford to defend themselves completely regardless of the merits of the case, in the case the defendants can not even afford the start of their defence let alone the tens of thousands of dollars to successfully conclude the case and win.

That the legal system and government have stood by and said nothing, whilst a legal firm has basically set up an extortion racket targeting tens of thousands of victims, makes them complicit accessories to a very public crime that makes a mockery of principles of equal justice for all.

Re:With friends like her ....

[wisty]

Coder is a really good analogy. Think back to the days when you needed to punch your fortran code into cards to send an email (and yes I know this is technically wrong). This benefits the coders who work the system, the sysadmins (who are also coders) who run the system, and the OS designers who developed the system (who are also coders). It's a nice legal monopoly, but it is far from user friendly. Of course, it's easier to buy a new computer than to migrate to a new country, so IT been a more efficient market driven system.

Now consider the fact that the lawyers are paid to the work the system, the judges (who are also lawyers) administer the sytem, and politicians and legal advisers (many of whom are lawyers, especially the ones that draft legislation) are also lawyers. It's a nice little piece of white-collar union thuggery, but you can't get away from it without leaving the country, so market forces don't make it more friendly.

No, they don't

[marcosdumay]

Coding isn't an essential aspect of everybody's life. Being out of prision and defending against some extorcionist that wants all your money is.

"overwhelmingly" ??

[ReedYoung]

The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,' and also stated that the law is 'overwhelmingly on the side of the record companies,' even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story."

This has gotten completely out of hand. The law is not "overwhelmingly" on the side of the RIAA/MPAA, from my perspective. In some cases, probably, and in other cases, definitely not.

What "loss of revenue"? Document the loss of revenue, or throw out the cases. Granted, copyright is violated with not-for-profit file sharing, but without proven [the standard of guilt according to the supreme laws of the land, remember] loss of revenue, the only equitable punishment, meaning fitting the crime, is to confiscate the copies, and nothing more. Because, in cases that the copies are shared without payment, no loss of revenue is apparent, and can only be ascertained by speculation -- of various levels of sophistication, but ultimately it can be no more than speculation -- and that is traditionally not admissible as evidence. Is it admissible as argument? Reasonable suspicion? If so, then also and equally, as reasonable doubt.

Disclaimer: I'm not very interested in this subject and thus not especially well-read in it, but occasionally I feel motivated to donate my $0.02 to a discussion, for basically the same reason people watch Jerry Springer I guess, just the absurd, "real" spectacle of it.

I most often see [notice] the question of lost revenue in file sharing cases discussed as mitigating the criminals' intent, as in something for the judge to consider in assigning a lighter sentence, but not factored into the determination of guilt or innocence. But I think the absence of exchange of money absolves the mischief-makers of any financially quantifiable crime, not because of their inferred "good intentions" or absence of malice, but simply and amorally, because the assumption of lost revenue is totally invalid.

No, a downloaded file is not as good as the original. Some mp3s are "as good" -- for purposes of background noise, but not hi-fi or audiophile intense enjoyment of a real work of art -- as the original, but even when sound quality is not important enough for the downloader to purchase the original copyrighted work, the suitability of an mp3 is not reliably comparable to a CD. The unwanted insertion or removal of 2-second pauses between tracks on an album comes to mind, a much more noticeable defect to the casual listener than "quality" differences in mp3s or compressed video. Also, dedicated fans, defined as willing to pay retail CD mark-ups, generally want the liner notes, the high-quality photos and/or artwork, etc., available only on the original. Downloaders are not, generally, the same people as purchasers of the same work. So, no, it is not reasonable to assume that each file downloaded represents a lost sale, of either an album or single or anything, nor even that a consistent ratio of downloads represents one lost sale. Any such ratio would differ according to the nature of the work and the average quality standards of the audience.

For the reason of the differences I described above, I purchase any music or video I expect to be worthy of my time, basically because I value the one or more hours that I might otherwise spend learning something, too valuable to waste on the chance of copying errors. I've seen software being written. 'Nuff said. Despite having no files in my personal collection subject to the DMCA, music and software copyright litigation is a blatant waste of the judicial system for which I'm taxed. The cost/benefit analysis is a matter of public record, and does not support the business case for the corporations to initiate litigation, IIRC. Only the lawyers are gaining from this. So, as they're already running the businesses [into the ground, btw] let ^H^H^H make them write the code and the lyrics, too, for Pete's sake. Right now, they are looting economic value, meaning acquiring loot without providing anything of value, to anybody.