RIAA Threatens Harvard Law Prof With Sanctions

NewYorkCountryLawyer writes "Unhappy with Harvard Law Professor Charles Nesson's motion to compel the deposition of the RIAA's head 'Enforcer', Matthew J. Oppenheim, in SONY BMG Music v. Tenenbaum, the RIAA threatened the good professor with sanctions (PDF) if he declined to withdraw his motion. Then the next day they filed papers opposing the motion, and indeed asked the Court to award monetary sanctions under Rule 37 of the Federal Rules of Civil Procedure."

Comments

Who is this guy, & why does he not want to spe

[Bearhouse]

From the first link: 'Mr. Oppenheim is the person who has been identified by the RIAA lawyers sometimes as the "client", sometimes as the "industry representative", and sometimes as the "client representative", and on at least one occasion as "the only person who had settlement authority" for the RIAA members. He claims to be associated with an entity called "The Oppenheim Group", and has acted as attorney of record for the record companies in several proceedings in Washington, D.C.'

So, if he represents the interests of the artists, (ahem), why is he - or his legal team, taking such extraordinary steps to avoid testifying?

You don't get it, do you?

[Anonymous Coward]

It's not about the law. It's about money! Stop interfering with our money-making!

Re:You don't get it, do you?

[Anonymous Coward]

going one step up, er... down, money is about control.

That explains why RIAA heads seem not to care if their actions get them hated or boycotted. Their battle is making people accept Intellectual Property being enforced. Is it a primary objective or just a way to terrorize people and prevent them for doing other things, like, you know, looking at what other powerful people do to society, dunno.

Those who collected enough power to be able to influence how much money is printed have no interest in having more or less money. They want money to have maximum control over as much people as possible. This effort shaped the history of the latest centuries, somebody call it conspiracy, i call it a natural outcome of control freaks interacting with other people.

Re:You don't get it, do you?

[Just Some Guy]

Their battle is making people accept Intellectual Property being enforced.

Umm, I'm all for certain types of IP being enforced (Copyright: good. Trademark: good. Software patents: terrible). You can be OK with copyright and still find their actions despicable.

Re:You don't get it, do you?

[pdabbadabba]

I hate to side with the RIAA but, if the allegations in their motion are true (and you'd think they would be; they are simply claims about the proceedings themselves that the judge can easily verify) then the issue is simply that Nesson has repeatedly failed to follow the court's rules governing discovery. He has not subpoenaed the witness or given notice of taking a deposition before moving to compel it. He has not conferred with the plaintiffs regarding the motion before filing it. He has not filed the required initial disclosures. All of these, under either the Federal Rules of Civil procedure or the local rules of the court are grounds for the dismissal of Nesson's motion and, possibly, monetary sanctions.

This sounds to me like a solitary instance of the RIAA's being in the right in court. Sorry everyone!

Re:You don't get it, do you?

[NewYorkCountryLawyer]

if the allegations in their motion are true

You must be new here.

Re:You don't get it, do you?

[Dragonslicer]

Copyright eventually runs out

You must be old here.

Re:You don't get it, do you?

[Sloppy]

Their battle is making people accept Intellectual Property being enforced.

If only. That's what their battle should have been. When they got super-sloppy with their investigative techniques and started suing innocent people, the battle changed. Nobody needs berserkers who don't even know who their enemies are. I bet if RIAA had stuck to suing copyright infringers, none of us would have ever heard of NewYorkCountryLawyer. Nobody would give a damn about RIAA and we would have moved on to fighting the much more evil and freedom-threatening MPAA.

Re:You don't get it, do you?

[NewYorkCountryLawyer]

I bet if RIAA had stuck to suing copyright infringers, none of us would have ever heard of NewYorkCountryLawyer.

May well be so. I only came into the fight because of my hatred of bullies, and because these bullies were so obviously wrong on the law, wrong on the facts, and immoral and unprofessional in their behavior.

You might have otherwise heard of my alter ego, Ray what's-his-name, in other contexts, but probably not in this context.

I only first discovered Slashdot when one of my litigation documents in Elektra v. Santangelo got 'Slashdotted' one day in the Summer of 2005. I traced the backlink to this place I'd never heard of, where an intelligent Talmudic discussion was going on, among a bunch of people who seemed kind of like lawyers, but who clearly were not lawyers, but who seemed smarter than lawyers. It looked like an ordinary message board, but it obviously was a whole 'nother thing.

Things haven't been quite the same since.

1. Spend a lot of time on Slashdot.
2. Get the word out.
3. Have a lot of fun.
4. ???
5. No profit whatsoever (in the financial sense).

Re:You don't get it, do you?

[NewYorkCountryLawyer]

We, generally speaking, are only smarter than your average lawyer as pertains to computers, the internet, technology, or other generally geeky/nerdy topic. I'm sure your average lawyer would thoroughly trounce us on other less geek-centric topics.

Well, we're going off topic here, but I will tell you that in my experience:
-in the world of science and math one will occasionally come upon a genius
-in the legal world, in 34 years of encountering thousands of lawyers, I have met many reasonably intelligent people, but only 1 genius.

Re:You don't get it, do you?

[UnknownSoldier]

> The idea of "intellectual property" is unconstitutional and unAmerican. Please stop using the term.

That's why I prefer the term "Imaginary Property", because "Intellectual Property Rights" are neither "Property" nor "Rights", but all this has been hashed before

Re:You don't get it, do you?

[ScrewMaster]

The fact is the RIAA may be a bunch of cruel bastards, but at the end of the day they are just protecting their copyright.

Shows how little you know. The RIAA doesn't hold copyright: the media companies that fund the RIAA's activities do. And they're the ones who are morally (if not legally) responsible for the RIAA's reprehensible tactics. The Recording Industry Association of America is a group of hired guns, no more. Don't try to make them into some kind of unsung heroes ... because they're not.

Seriously, why don't you study this issue for a while, examine some of what the RIAA has done to "protect the bloody artists", check out the damage done to our legal system. Then come back and tell me that they're "just protecting their copyright." The reality is very different: they're screwing us ALL over, bigtime, in order to protect their masters revenue streams. And they're doing it by any means necessary, legal or otherwise.

Honestly, if you're a troll you're a fairly subtle one. Look, if the RIAA had stuck to suing people that had provably committed copyright infringement, using accepted and legal methods of investigation and had only asked for reasonable damages, nobody here would bother discussing the matter. Ray Beckerman would likely be spending his time on more productive work, not defending people who cannot be shown to have committed infringement yet are being destroyed anyway. But, that's not what the RIAA is all about, their activities are not legitimate, and that's a fact.

Really, clue up.

Re:You don't get it, do you?

[NewYorkCountryLawyer]

If you aren't rabid and foaming at the mouth, and try to get at the deeper issue, the immediate thought is "troll". Not the intelligent, "Talmudic" discussion NewYorkCountryLawyer alluded to.

You may not be "rabid and foaming at the mouth" but your quiet, temperate expression of your point of view nevertheless fails to stand up to scrutiny. For example you say,

The meat of these lawsuits are over blatant copyright infringement. If there wasn't massive file sharing going on, there wouldn't be these lawsuits. I'm not defending all of the actions of RIAA and the people they represent, but the basic question is the same: Can they defend themselves against illegal sharing of music or not?

1. You're engaging in the "where there's smoke there's fire" fallacy. "If they sued someone, they must have a good reason for it." Well that's bunk. (a) Their "methods" are frought with inaccuracy. My estimate is that more than HALF of the people they pursue NEVER did any file sharing. (b) They have no proof that anyone did any downloading. (c) They have no proof that anyone committed a "distribution" under the Copyright Act. But they sue anyway.

2. You're assuming that there's "meat" in the RIAA cases, when there is not.

3. You're assuming that where file sharing has taken place, the file sharing amounted to a copyright infringement.

4. You're assuming that every time there has been a copyright infringement, there needs to be a lawsuit.

5. You're assuming that a damages theory which seeks from 2300 to 450,000 times the actual damage sustained is appropriate.

6. You're assuming that damages should be awarded based on distribution when there is no EVIDENCE of distribution.

Your arguments are as illogical as those the RIAA lawyers advance, and are similar or identical to those the RIAA lawyers advance.

Which is why a knowledgeable reader who has read the litigation documents and judicial decisions in some of these cases would conclude that your argument is far from "Talmudic". I've been privileged to have participated in Talmudic arguments. When I use the term I mean an argument based on principle and law and sincerity, struggling to determine what is right and most consistent with the law, not one based on expediency or smooth talk not founded on substance attempting to win something.

Your means of expression may be quiet, but the lack of logic in your statements strikes a jarring note.

Re:You don't get it, do you?

[NewYorkCountryLawyer]

On Slashdot? Hardly anybody reads the legal documents.

As the person who actually hosts the litigation documents, and can read the backlinks, I can tell you that you are dead wrong about that. While it is true that visitors from Fark or Reddit or Digg are more likely than not to skip reading the litigation documents, a substantial majority of the visitors from Slashdot actually do read the litigation documents, and spend time doing so.

And most Slashdotters, when pressed, are able to back up their arguments with substantiation, unlike yourself.

modern version of sending pictures

[HungryHobo]

"Stop this (perfectly legal thing) or our teams of lawyers will fuck up your life" seems to be the new iteration of having thugs beat up a family member or sending pictures of your kids playing outside.
The intent is merely to scare people.

Re:modern version of sending pictures

[Anonymous Coward]

Yes, but doing it to a harvard law professor is a little bit... Simple

Re:modern version of sending pictures

[Thanshin]

"Stop this (perfectly legal thing) or our teams of lawyers will fuck up your life" seems to be the new iteration of having thugs beat up a family member or sending pictures of your kids playing outside.

I may consider stopping the kids from playing outside if they sent me those pictures of the lawyers beaten up by the thugs.

Re:modern version of sending pictures

[Hognoxious]

Does this constitute barratry? Whether you agree with the case or not, the defendant has a right to representation. The only way that can be atacked is by plaintiffs representative in court. That's what they're for. That's how the system is designed to work.

But any "off field" attempts to defeat the defence should be considered as contempt of court. What next, slashing his tires so he can't get to the court house?

Re:modern version of sending pictures

[digitig]

If it saves one lawyer! Er, hold on...

Re:Who is this guy, & why does he not want to

[QuantumG]

He's a suit. 'nuff said.

Your Honor

[whisper_jeff]

Your Honor, we would like you to impose sanction against him. He's not supposed to fight back. Please punish him for fighting back. Our strategy doesn't work when intelligent lawyers fight back. This must be put to an end right now.

Pathetic RIAA.

Re:Your Honor

[morgan_greywolf]

Well, the court can't impose sanctions under Rule 37 for fighting back.

Rule 37 says the court can impose sanction, basically, if someone refuses or fails to appear, respond, answer etc. when so ordered by the court:

(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:

(i) a party or a party's officer, director, or managing agent â" or a person designated under Rule 30(b)(6) or 31(a)(4) â" fails, after being served with proper notice, to appear for that person's deposition; or

(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

(B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action.

Re:Your Honor

[NewYorkCountryLawyer]

Your Honor, we would like you to impose sanction against him. He's not supposed to fight back. Please punish him for fighting back. Our strategy doesn't work when intelligent lawyers fight back. This must be put to an end right now.

Pathetic RIAA.

whisper_jeff, you really hit it on the head. I see you've already been modded to +5 Funny. I wish you could be modded to +10 Funny AND Accurate.

Re:Your Honor

[NewYorkCountryLawyer]

In response to your question I know nothing about the underlying facts, however in my experience (a) one does not need to subpoena a person who is a "principal" of a corporate plaintiff, which Mr. Oppenheim has represented that he is, (b) there is nothing in the rules or caselaw to warrant the application for sanctions, and (c) I doubt that I have ever seen a set of papers from this law firm which has not contained intentional misstatements of fact. So I await with interest the papers which I imagine will be submitted by Prof. Nesson, which I am sure will state the facts correctly.

Re:Your Honor

[NewYorkCountryLawyer]

I would think this strategy runs the risk of insulting the judge.

You mean going to an appeals court and telling them that she is acting totally outside the jurisdiction of a federal judge and flagrantly violating the law?

Capitalism at it's best.

[jbssm]

This is what capitalism is all about right?
You have money SO, you can hire good lawyers SO, you can prolong the process making the necessary appeals to higher courts for a long long time ... SO you bankrupt the other party SO, you win.

Nothing new to see here, move along.

Re:Capitalism at it's best.

[The Only Druid]

The law has not "become" so complex; from day one, the entire reason for the legal profession was that the average citizen (then, in the European nations) couldn't possibly be expected to know all the procedures of the courts, not to mention all of the details of substantive law.

Re:Capitalism at it's best.

[u38cg]

Not really. The RIAA is a perfect example of a cartel and what it can do. There's a reason they are usually illegal.

Re:Capitalism at it's best.

[Hatta]

If they sanction this guy under Rule 37, we should sanction the RIAA under Rule 34.

Re:Capitalism at it's best.

[tmosley]

It's ABSOLUTELY NOT capitalism. The US doesn't have a capitalist system, it has a corporatist system. Corporations are in bed with the politicians, and what they spawn together takes away our freedoms, both personal and economical.

Another name for such a system is fascism. It's not pretty, as we have seen all too often.

Re:Capitalism at it's best.

[The Only Druid]

I don't think it's revisionist at all: the reason you couldn't be aware of the law was not just your illiteracy, but the difficulty in distributing the information. Today, it's not a function of literal illiteracy (i.e. inability to read) but rather figurative illiteracy of the law (i.e. inability to digest the readily available legal materials). We can solve that need by (a) educating everyone on all law, (b) continuing to rely upon lawyers, or (c) re-writing the law to be accessible to everyone.

Everyone (especially on forums like this) likes to jump on option (c), forgetting the basic problem that a system is definitely not automatically bad just because it's complex. Far from it, when you're describing a tremendously detailed world such as our own, it is inevitable that your laws would become complicated and labyrinthine.

Re:Capitalism at it's best.

[bhtooefr]

http://www.seasteading.org/

Although there's still some rules in maritime law. But spacesteading isn't practical yet.

Re:Capitalism at it's best.

[NewYorkCountryLawyer]

I remember at least one case the RIAA lost where the other party filed for legal expenses to be paid by the RIAA.

2 of which I am aware. Atlantic v. Andersen $108,000, Capitol v. Foster $68,000.

Legal language and strength of case

[Kupfernigk]

The PDF reminds me of something I have seen before with bad lawyers: the worse the case, the longer and more threatening the language. The RIAA seem to have spotted a new idea: if you want to be e.g. a bank robber or a burglar, become a lawyer. Then when you get caught, you can try to avoid testifying on the grounds of legal privilege.

On the other hand, when you have a strong case things are different. I'm reminded of a business acquaintance who had a case against a powerful US trade group some years ago. His lawyers said the case was unanswerable, spent a morning summarising it on one side of a letter, and sent it off. The other side promptly settled out of court. The other famous example was the UK satirical magazine Private Eye, which once received a long and very threatening letter from the lawyers of a notorious fraudster. Their reply was something on the lines of "We have had your interesting letter and we have taken legal advice. Our lawyers advise us to tell you to f**k off".

Given this history, the one liner back (in effect "bring it on") is surely instructive.

Re:Legal language and strength of case

[Tryfen]

The case to which you are referring is Arkell vs Pressdram.
http://en.wikipedia.org/wiki/Arkell_vs_Pressdram#Litigation

The salient point is that Arkell's lawyers wrote to Private Eye saying "Our client's attitude to damages will depend on the nature of your reply". Private Eye's response was "We would be interested to know what your client's attitude to damages would be if the nature of our reply were as follows: Fuck off".

I recommend that people take this option more often. I *am* a lawyer - this is legal advice.

Re:Legal language and strength of case

[ebuck]

The real beauty of the letter is that Private Eye didn't tell them to fuck off, they just asked for information. The information they asked for made it abundantly clear the intent but didn't voice the intent or bind them to any course of action.

I'm not a lawyer, but I appreciate a well crafted argument. This one speaks volumes without actually saying anything.

RIAA reaching new heights of credibility

[meist3r]

First they get the live online-coverage of one of these processes postponed. Now they try to legally blackmail the defense lawyer. What's next?

"That's an awfully nice courtroom you have here, your honor. Wouldn't it be terrible if something happened to it?"

Jeez, I hate these guys.

Re:RIAA reaching new heights of credibility

[erroneus]

I know... I know... but still, the word you may be seeking is "extort" as in extortion.

Blackmail is "we will tell your secret if you don't do what we say."

Re:RIAA reaching new heights of credibility

[meist3r]

Well you're right. English is not my primary language and even though my vocabulary is pretty good (I even knew extortion) sometimes I mix stuff up. So cut me some slack please?

If you don't I'll black-extort you.

Re:RIAA reaching new heights of credibility

[Anonymous Coward]

Is no one reminded of the Monty Python skit?

"Sure is a nice army base you have here, Colonel. It would be a shame is something....happened to it"

When the client is a lawyer ...

[l2718]

If I sue you, I can't hide my claims against you on the theory that my thoughts about these claims are part of my legal representation. This is the case even if I'm a lawyer. The RIAA is trying to do just that by employing a lawyer intermediary between the RIAA itself and the legal team representing them: First, the RIAA generates "evidence". Then the RIAA gives the evidence to the intermediary lawyer, and also charges him with making all the decisions for the corporation. Finally, the intermediary becomes the "client" for the actual legal team. This way the real client is shielded from discovery: all their contributions to the lawsuit were done through their "client-attorney" relationship with the intermediary. It's a thing of beauty, but I suspect it's not legal.

Re:When the client is a lawyer ...

[Thanshin]

It's a thing of beauty, but I suspect it's not legal.

As always.

Wait, this isn't the britsh pedophiles topic.

Re:When the client is a lawyer ...

[Anonymous Coward]

I am a lawyer - and therefore not technically (heh) or morally inclined to post other than anonymously. But what Oppenheimer is doing is using the attorney-client privilege to create a legal "black hole" whereby some substantive operations of the company (the RIAA) that businessmen commonly have control over are instead controlled by the lawyer, creating a situation where documents that would otherwise not be privileged magically are. Most companies would rather pay someone in lower management a lesser salary than the relatively high salary of a lawyer to do everyday tasks, but on a strategic level it sometimes makes sense for a company to pay a relatively astronomical fee to a lawyer for the lawyer to act as an employee in lower or middle management.
While highly unethical, it's not illegal. Oppenheimer MIGHT be subject to sanctions for doing it, but might not be. Probably depends on the judge and the jurisdiction.

Re:When the client is a lawyer ...

[AK Marc]

But what Oppenheimer is doing is using the attorney-client privilege to create a legal "black hole" whereby some substantive operations of the company (the RIAA) that businessmen commonly have control over are instead controlled by the lawyer, creating a situation where documents that would otherwise not be privileged magically are.

Privilege extends to legal work alone. If someone happens to be a properly licensed attorney and you hire them to be your accountant, they can still be called on in court to testify as to accounting things. Using a lawyer for contractor management (even if the contractors are lawyers) is *not* legal work, and thus isn't related to priviledge. The only "magic" that appears is when you are willing to lie and say things are legal work when they are not.

Re:Attorney-Client Privelidge

[Bearhouse]

Depends on the court, see:

http://en.wikipedia.org/wiki/Attorney-client_privilege

Plus, he can still tesify on actions or decisions he took on behalf of his client, and why, without revealing any conversations and/or communications with the client. After all, he was representing them...

Re:Uhg

[butlerdi]

Well, the old fogies as you call them are really quite young the biggest of them being Edgar Bronfman, Jr son of a booze smuggler in prohibition. http://en.wikipedia.org/wiki/Edgar_Bronfman,_Jr.

Re:Attorney-Client Privelidge

[l2718]

If Mr. Oppenheimer has been the RIAA's attorney (meaning agent only) then there has to have been someone at the RIAA giving him directions and telling him what to do. Basically the RIAA is trying to hold both ends of the stick: when you ask the RIAA: "who's the person who can speak for the corporation about this litigation", they say it's Mr. Oppenheimer. When you then say "Ok, can I ask Mr. Oppenheimer some questions?" they say: no, he's actually our lawyer so he can't tell you anything.

Say the RIAA sues someone. This means they gathered evidence etc. But the RIAA is not an actual human, just a "legal person". So some human employee of the RIAA must be able to testify to things like "we told our investigators to look for X" or "this is how much money we lost due to this alleged infringement". The RIAA is trying to claim that the employee who knows all this stuff is at the same time the RIAA's lawyer, so he only knows this stuff as their attorney and can't testify to it. It's a clever way to avoid having to present their case.

Re:Who is this guy, & why does he not want to

[meist3r]

You mean THIS guy:

"was the Senior Vice President of Legal and Business Affairs for the RIAA."
http://en.wikipedia.org/wiki/Matt_Oppenheim

"Mr. Oppenheim then became active as one of the lead litigators representing the record industry in the landmark "file-sharing" cases against peer-to-peer networks, including against Napster, Aimster, AudioGalaxy, Morpheus, Grokster and Kazaa."
http://www.spoke.com/info/p6QsSD8/MatthewOppenheim

"It is not legal, ethical or cool to copy somebody else's CD for your own use."
http://www.pbs.org/newshour/forum/june03/copyright2.html

See, he doesn't even agree with himself. What the RIAA does is not legal, ethical or cool since they copy the artists CDs for their own use. Bad Bad RIAA ;)

Simple ?

[unity100]

its legal suicide.

Re:Simple ?

[NewYorkCountryLawyer]

So what they are actually doing is some kind of legal suicide attack?

What they've been doing the past 5 1/2 years has been a legal suicide attack.

The only survivors are their law firms.

Re:Uhg

[Anonymous Coward]

It is not because they are clueless. Music business just revolves around seedy people. I know. I am starting up agent myself. I have a history of 15 years of tech development and know my local law quite well. I am sought up by young bands around me because I can tell them gazillion seedy practises of how to actually get a licing out of their music.
These discussions always take a place in some smoky studio with booze flowing. If my client and moral quibles, he will do by himself. I have one of these. He has honestly tried to break out for 10 years and is a very talented vocalist and guitarist. I can't help him because he finds my methods unsavory.
I do not collect by success. I have a fixed price which I take from the first album or by selling them to a bigger label. I have very little investement in myself, but they know I can help and are willing to sign my contract because they are only obliged to work with me until they get to bigger stages.

Anyway. Music is dog-eat-dog on business side. Those who try to make a living out of it, are quite heartless cynic people. But brilliant, talented cynic people.

Have fun supporting your local artist. Your pennies will never feed him. Do the math and calculate how much an ethical unknown artist would have to sell and tour to make ends meet. Don't forget to calculate expense of light techicians, sound technicians, roudies the bus driver, etc. Those salaries usually go untaxed and the venues pay grey. Try to work in proper taxation, insurances and what the heck not. A gig should cost $100/person and CD another $100 for the poor sods.

Music is not a business of scarce resources. It is of scarce customers. That's why the biggest front of the business looks so brutal.

Re:Who is this guy, & why does he not want to

[PopeRatzo]

why is he - or his legal team, taking such extraordinary steps to avoid testifying?

Because he's so morbidly overweight that he's no longer able to leave his bed. That and the bad hair plugs keep him from going out in public. Oh, and he's got one of those crazy eyes where you can't tell where he's looking and he knows everybody on the internet will put his testimony on YouTube and laugh at him and leave mean comments. He's really a very sensitive soul and if you met him you'd like him, except for the horrible odor that comes from his unwillingness to bathe due to his persistent aquaphobia.

That, and if he showed his face he'd be in more danger than Barack Obama at a Klan meeting.

Re:Who is this guy, & why does he not want to

[PopeRatzo]

"It is not legal, ethical or cool to copy somebody else's CD for your own use."

Oh, come on. It is kind of cool.

You know it is.

And even cooler is copying DVDs. You can have like thousands of movies in perfect quality, and the best part is that Mr. Oppenheim (if that is his real name) and his Rothchild/Bavarian Illuminati/Reptilian/Council on Foreign Relations/Banking Cartel buddies don't get a single red cent.

And the fun with Blue-Ray is just starting.

Now that's really cool.

Seriously, who's doing the RIAA's public relations?

What is Rule 37?

[Anonymous Coward]

I'd be thankful if NYCL, or another /. regular legal eagle, would explain Rule 37 in normal English, or if possible in engineering English.

I tried reading the rule myself, and it was so chock full of legal terms that I fear I summoned a succubus.

Re:What is Rule 37?

[tiananmen tank man]

From the pdf, it sounds like rule 37 is saying "You haven't asked us nicely for this information outside of court first and you should"

Re:Attorney-Client Privelidge

[Opportunist]

Well, IANAL, but it kinda sounds illogical. When you can't present your case, how can you have one? Isn't that like saying "I sue you, but I won't tell you why, I only want you to be convicted and forced to pay me a sum that springs from my imagination"?

Thinking about it again... that's pretty much how they do it, ain't it?

Re:Attorney-Client Privelidge

[Opportunist]

I'm in the antivirus industry. I'm used to unwinable wars and fighting them. Bring it on.

NYCL, please start annotating your submissions!

[plasmacutter]

Most people are still not understanding what this means, its implications, and its likelihood for success.

It's important to translate things out of legalese and analyze it in the context of the proceedings.

Slashdot is a tech site, not a legal one, so while the general community can see "aha", "touche'", and "gotcha" moments in, say, the realm of computer science or electrical engineering, we don't see it in legal context without some actual analysis. Feel free to qualify things with "this is my opinion" or whatever, but analysis and translation is essential.

the legal system

[castironpigeon]

We've all seen the legal system (in the US and elsewhere) make honest mistakes, but to see a group of people wielding it like a club so consistently is sad. You can't even compare it to something like the Inquisition because at least in that case the people in whose interest it was to see injustice done were doing their own dirty work. The public went along with it too, but set that aside for now. Who is benefitting here? Groups like the RIAA. Who is being used as a weapon? The US court system. Are the courts really so collectively stupid that they can't see that? I would think more court officials would have enough self respect to say, "enough is enough, we're tired of being degraded like this."

Wasting resources

[immakiku]

RIAA's lawyers actually wrote this in the threat: "Defendent's repeated failures to follow basic rules of procedure is making this case far more expensive and time consuming than it should be." hmm... I'd almost say something like, Plaintiff's repeated contortions of basic rules of procedure is making multiple cases far more expensive and time consuming than it should be.

Re:Wasting resources

[NewYorkCountryLawyer]

RIAA's lawyers actually wrote this in the threat: "Defendent's repeated failures to follow basic rules of procedure is making this case far more expensive and time consuming than it should be." hmm... I'd almost say something like, Plaintiff's repeated contortions of basic rules of procedure is making multiple cases far more expensive and time consuming than it should be.

Hmm. I would say something like that.

Re:Who is this guy, & why does he not want to

[sukotto]

Even cooler is that you:
- don't have to worry about your kid scratching the DVD and making it unplayable
- can easily skip the fscking "no skip" crap that every DVD seems to have
- can FIND the movie when you want to watch it

In almost every way, the ripped copy of the DVD is better than the physical disc

Re:Who is this guy, & why does he not want to

[Rogerborg]

why is he - or his legal team, taking such extraordinary steps to avoid testifying?

Uh... because (they say) that he wasn't actually subpoenead to testify, and so being "compelled" is Bad Juju. (They claim) Profession Nesson actually subpoenead someone other mysterious 3rd party, who is resident in Maryland and so can't be subpoenad to a Massachusetts District court anyway.

Now, maybe they're lying, but that would be pushing it even for the RIAA. It almost sounds as though they created some Fake Oppenheim, let Nesson serve him, and now they bitch-slap him for claiming that he served the Real Oppenheim.

So I guess those would be extraordinary steps too, but at least the reason for taking them is obvious: it'd be damn funny if that's what they've done. Evil Robot RIAA Doubles. It's all true.

Dripping with Bias

[TheVelvetFlamebait]

Their battle is to enforce (a certain subsection of) the law until it doesn't need to be enforced. Just like any honest law enforcement agency you care to name. That's no conspiracy; anyone in a functioning democracy can read up about their responsibilities regarding IP.

However, just like most dishonest law enforcement agencies, they are not above threatening people who aren't doing anything wrong.

There really isn't much more to read into it than that.

Re:Dripping with Bias

[bhtooefr]

However, they also lobby to have certain subsections of the law created or modified...

Re:Uhg

[dcollins]

What the fuck? I nominate the parent post for "most incomprehensible 5-scored gibberish on Slashdot". I sure hope it's just pure bullshittery that there are any musicians signing contracts with this individual.

This is going to turn Nesson on

[Anonymous Coward]

Nesson loves this stuff. He represented Ellsberg (the guy that stole and released the pentagon papers) against the us government. In classes he loves telling stories of how he stood against government intimidation to protect Ellsberg's location (e.g., being followed everywhere, never using phones in his home or office, taking elaborate trips arranged through fantastic means to have in person meetings away from the watching eyes of the us government). The government was breaking law after law to find Ellsberg and put him away, but Nesson managed to hide him long enough to prepare for defense and turned the government's own illegal actions back at them to get the case thrown out.

This is just the type of action the RIAA can be sure will get Nesson even more excited about this stuff. He'll just wear it a badge of honor.

Re:Uhg

[Ralph Spoilsport]

And, apparently, totally lacking in skills at grammar and spelling.

Actually I thought it was great. Read it with "A Russian Accent", like it's Boris Badanov speaking - "Muzt get Mooose end Sqvurel" and it all makes perfect sense!

""Thoss who try tu mek a leeving out of it, are quite heartless cynic pipple. But breeelliant, talented cynic pipple."

See? :-)

RS

Re:Uhg

[mdarksbane]

You can make it, you just might not make it big.

My dad's been self-employed as a musician for fifteen years now and gets by. It's enough for him to support himself and help support the family. The trick was his business experience and not being too caught up in his art to not find new markets. He does a fair number of kids programs, but also a bunch of festivals, concerts in small venues, and a few big openers. It's about living within your means, selling your name and music at every opportunity, and not spending $50 on gas for a $40 show.

Full Story?

[UnknowingFool]

What's the full story behind this? I'm only getting the RIAA's story. It appears that Professor Nesson wanted to depose Mr. Oppenheim on January 22. But sometime after January 9, the RIAA objected citing attorney-client privilege, the depositions were to be held in Massachusetts and not Maryland, there was no fee, there was no confer and meet, etc. Then Professor Nesson filed a motion to compel. I didn't read that he answered their objections. The RIAA then filed for monetary sanctions.

I am not a lawyer but dispositions and motions to compel seem to be fairly commonplace in lawsuits like these. The RIAA seems to have valid points on not allowing Mr. Oppenheim. Filing for monetary sanctions however is really overboard though.

Re:Full Story?

[NewYorkCountryLawyer]

Mr. Oppenheim is a shadowy figure, who changes his stripes according to what he thinks the judge wants to hear. I.e., he will say whatever is most advantageous for him to say. He has claimed at various times to be:

-the client
-the client representative
-the industry representative
-the principal
-the only person in the world who has settlement authority
-the attorney

It is clearly true that he was the person who has controlled these cases, and who had complete authority to settle the cases. He is the enforcer of whatever unholy agreement these 4 supposed competitiors made among themselves, and he is instrumental in whatever trickery was developed to ensure that only the Big 4 -- and no other RIAA members -- were permitted to participate in this litigation war. He is the enforcer.

He is clearly an appropriate person to be deposed.

Re:Full Story?

[NewYorkCountryLawyer]

I'm not questioning should Mr. Oppenheim be deposed only that if procedurally the RIAA have valid points on their objections? Even if they were technical like the place of deposition, fee, subject matter, etc.

No there is no merit to any of their contentions.

Re:Full Story?

[aurispector]

It's rather strange - do they think the judge in the case has no knowledge of proper procedure? Or is it a simple delaying tactic? In how many different ways can Oppenheim claim to be affiliated with the lawsuits without revealing his actual role in the litigation campaign?

By the way, thanks for bringing the information to light - we all have to work for a living, but this stuff is too interesting to ignore!

Re:Who is this guy, & why does he not want to

[mcgrew]

So, if he represents the interests of the artists

He doesn't. Nobody represents the artists, who get screwed over badly. The artist doen't even hold copyright to his own recorded performances, the label does.

If you want to know just how badly the RIAA labels screw over their artists, read any treatise by any RIAA musician (except Mad Donna or the dufus drummer from Metallica). There are good ones by Courtney Love and Steve Albini that will make you feel REAL sorry for the fools who sign with major labels.

Re:Grasping at straws

[NewYorkCountryLawyer]

Someone either sounds nervous, or a poor loser.

Or both.

Re:Who is this guy, & why does he not want to

[PReDiToR]

They who can give up essential backups to obtain a little temporary convenience, deserve neither data integrity nor security.

Apologies Mr Franklin.

Good thing it wasn't rule 34

[mcbutterbuns]

Could you imagine what would have happened if they would have invoked rule 34 of the internet?

Re:Good thing it wasn't rule 34

[KingAlanI]

Would have redefined "legal brief", there would have been a motion called "of the ocean"...

[scrubs out mind now]

Re:Who is this guy, & why does he not want to

[frieko]

Yeah but an $80 hard drive can backup a $2500 DVD collection.

Re:I dislike reading anything from

[NewYorkCountryLawyer]

I second this! Ray, please translate a bit for us poor unfortunates. A little color commentary would be nice, too!

Sorry about that, but the reality is... I don't have the time to do good writing. I don't get paid for this. My highest priority in the blogging part of my life is to get the facts and the litigation documents out, and let the rest of the world handle the commentary. If I got a million dollar grant to spend more time writing I'd do it but I don't see that happening any time soon. I can't even get many people to buy an MP3 from one of my affiliate advertisers.

People compare me to PJ. You shouldn't. She's a great journalist; I'm not in her league. I'm just a lawyer who tripped across a wave of litigation bullying, and realized that the internet might help to slightly counterbalance one of the bad guys' strategic advantages -- their information monopoly.

What PJ and I have in common is that we've both taken advantage of the federal courts' transition to electronic filing to give our readers actual primary source material to read, and in so doing to honor, rather than insult as many other news sources do, our readers' intelligence.

Other than that, my amateur-hour work shouldn't be mentioned in the same breath as her deservedly award-winning web site.

Re:Who is this guy, & why does he not want to

[whoever57]

2) Modifying the movie, and the extra's, violates the TOC. Just like any contract, if you do not like it then do not sign for it

What contract? What TOC? I don't recall signing a contract the last time I bought a movie.

Modifying a movie is just like buying a book and then writing in the margin, or tearing out pages -- do you think that is illegal too?

Re:Who is this guy, & why does he not want to

[Chabo]

... did... did you just call Courtney Love a good musician?

Re:The Real Issue: Universal Access to Knowledge.

[Achromatic1978]

Right, twitter, to quote you, we "DESERVE UNIVERSAL ACCESS to ALL ... ENTERTAINMENT". Excuse me, who the fuck are you? You deserve free access to a product that might have cost someone a hundred million dollars to produce?

You might have a better argument with knowledge. But no, you do not have a fundamental right to be entertained at someone else's expense. Sorry.

See how they spin

And you would know. You're fairly well traversed in the area of spin.

Re:The Real Issue: Universal Access to Knowledge.

[dedazo]

All we have to do is share.

This is all mildly interesting twitter, but assuming you're not just karma whoring, maybe you'd like to explain how the people who produce the content you so eloquently demand must be shared are going to make a living?

The system is clearly broken at the moment, and shady legal actions and stacking from large groups that rarely have the artists' best interests in mind hardly help. Their passe distribution and promotion mechanisms also have to go.

But all these poetic "information wants to be free" essays I see here (yours is honestly just slightly north of corny) inevitably fail to explain how artists are supposed to avoid starvation and homelessness when freedom-loving folk like you are hard at work "sharing" their work.

The other day I read an article on game piracy. It centered mostly on DRM, but it also identified the lack of availability of titles in most of the world as a driving cause for piracy. In other words, there are millions of potential customers who would gladly pay for a game, yet simply can't because they have no legal way to do so. So they simply pirate it. That got me thinking that maybe if we had an open, secure and global mechanism for micropayment (< $100 on average) transactions, that could be used as an effective way to allow independent artists to profit from their hard work. Sure, there would be some piracy, that's a given. But depending on your overhead, even if only 10% of a hundred million people who have access to your work could pay, you'd probably break even and then some.

But just offering up empty prose on how everyone must "share" (and where is your shared content, BTW?) is and how eeeevil the **AA people are is, as usual, nothing but empty prose.

Re:Who is this guy, & why does he not want to

[jamstar7]

No, he said Courtney's rant about her contract is a good one.

Personally, since Courtney got sober, I'm waiting for her to finish detoxing so we can see just what kind of artist she really is. Should only take a couple more years...

Re:Who is this guy, & why does he not want to

[Sloppy]

You are able to BUY a movie? How much do you pay for said movie? Even if you go to your local store and grab a DVD off the shelf you are still not the OWNER of the property.

The transaction was identical to buying a book or buying a sixpack of beer. (Wait, scratch that: unlike movies, I have to show my id to buy beer.) Do you think books and beer aren't purchased either?

Furthermore, it's not even like shrinkwrap software, where after you think you bought it, you are then presented with a license that claims you didn't, after you open it up or when you install it. So it can't even be compared to that can of worms.

Don't believe the previous paragraph? Think I'm full of shit? Ok. Look at your CDs and DVDs: do you see a license? Can you perhaps quote one of the terms from any of these secret licenses that aren't even included inside the packaging? You said "You are LICENSED to use it within certain limitations" so perhaps you could explain what those limitations might be. Do you even know what the license says? Are you claiming that a person can be bound to a contract that they not only never signed, but has never even been shown to them even after they have signed? We're way beyond shrinkwrap EULAs and into Catch-22 territory here.

Can you explain the "own it now on DVD" ads? "Own" is their word, not mine. How about the "On sale, January 23" ads? "Sale" is their word, not mine. (Do you think I'm making this up?)

To recap: music and movie disks are advertised as purchases instead of licenses, they are transactionally treated just like purchases rather than licenses, and even after the purchase (which it should be too late to change the rules anyway), no license is presented and no claims are made by the publisher that it wasn't a purchase.

Dude, are you sure you have thought about this? Were you paying attention to what actually happened, the last time you handed your cash over in exchange for a shiny disk? It was all right there for you to see (or not see, in the case of the license itself).

Re:Who is this guy, & why does he not want to

[Sloppy]

What contract? What TOC? I don't recall signing a contract the last time I bought a movie.

It gets worse: Do you even recall seeing one? Do you remember thinking you had bought it, opening the box, and finding a page of legalese making the preposterous claim that you hadn't really bought it, but that they would graciously grant you permission to watch the movie provided that you agree to the following conditions? I don't.

Re:Who is this guy, & why does he not want to

[Michael Hunt]

1) If you are making a backup then you are OK, but face it, this crap started because too many people distribute movies on the net so people don't have to shell the money out. In all honesty if they came to your house and you could show them a 1:1 ratio every dvd/cd backup with the original, they would apologize and leave your house. Chances are it would be a ratio of 100:1 pirated:legit.
Of course. Anyone who wants to rip discs to a different format is a warezie. That's logic if ever I saw it. Sir, you could out-debate a horse!

2) Modifying the movie, and the extra's, violates the TOC. Just like any contract, if you do not like it then do not sign for it and do not use the product. If you like the product that much then use it how they asked you to use it.
I'm actually not sure what you think you're trying to say here. Modifying the movie would require a copy on your hard disk, and hard disks don't HAVE a TOC! (In fact, on newer recordable media, ATIP/PMA is arguably the correct term anyhow.) You might, of course, mean Terms of Use, or something, in which case I'd suggest you go fuck yourself, because nobody signs anything when they buy a movie, and it's fascist assumptions such as 'corporations can bind us to whatever we want without our recourse' which get society broadly raped over time. You're a REALLY sharp one, aren't you?

I don't know why these issues are so hard to understand. Don't steal, and don't violate their TOC. If you think the movie sucks and is not wtflol worth the money then don't buy it, don't watch it. Wait for it to come out on TV and you can have it for free (not really since there is advertising) or borrow the movie from a friend. There are plenty of ways to watch a movie/hear a tune which doesn't require you to steal it or modify the DVD.
So, while you're against warez (that much of a consistent position was at least present in your ramblings, remind me to tip your speechwriter!), you have no problem with people borrowing discs off their friends. How, exactly, is this any different? (other than the ENTIRELY LEGAL AND NOT AT ALL PRAGMATIC argument about the number of copies in existence, and the desire for copyright law originally to make non-tangible goods resemble tangible ones).

There are cogent arguments for not infringing peoples' copyrights. You, sir, have made none of them.

Re:Who is this guy, & why does he not want to

[hedwards]

I believe that's Hooray for boobies.