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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."
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?
Free Martian Whores!
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
intellectual property law is philosophically incoherent. it is your moral duty to ignore it or sabotage it
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).
In Soviet Washington the swamp drains you.
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...
- Minutus cantorum, minutus balorum, minutus carborata descendum pantorum.
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).
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."?
"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.
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.
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
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.
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.
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.
needs personal pronouns?
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.
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.
Ray Beckerman +5 Insightful
" 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.
We are all just people.
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:
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.
Are you adequate?
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).