Appeals Court Stays RIAA Subpoena

NewYorkCountryLawyer writes "The United States Court of Appeals for the Second Circuit has stepped in and issued a temporary stay of the RIAA's subpoena for the identity of a student at the State University of New York in Albany. The student, 'John Doe #3,' had filed an appeal and motion for stay pending appeal, arguing that the appeal 'raises significant issues, some of first impression' (PDF), such as the standards for the use of ex parte procedures for expedited discovery, the scope of the First Amendment right of anonymity over the internet, the scope of the distribution right in copyright law, and the pleading requirements for infringement of such right."

Comments

This could be big

[NewYorkCountryLawyer]

This could be the first time we will have appellate review of the RIAA's wacky, un-American, "ex parte", "John Doe" procedures.

Re:This could be big

[NewYorkCountryLawyer]

And I'm especially pleased that the defendant's lawyer is Richard Altman, because he is an excellent attorney; he was actually working against the RIAA's madness even before I got into the fight. He is a brilliant, and highly principled, guy.

Re:This could be big

[DoofusOfDeath]

He is a brilliant, and highly principled, guy.

I'm confused. Are you contesting Douglas Adams' claim that the universe can only contain one principled attorney at a time???

Re:This could be big

[NewYorkCountryLawyer]

When and how did you get involved in the RIAA?

Late 2004 or early 2005. I heard about these RIAA cases from the Electronic Frontier Foundation, knew they were BS procedurally and substantively, thought to myself 'I'm a litigator, I'm a copyright lawyer, and I hate bullies... maybe I can help some of these folks.' Next thing I knew I was up to my neck in it.

Re:This could be big

[morgan_greywolf]

Do you think there's any chance at all the 2nd Circuit Appeals court will actually rule on some of the other issues at hand, such as the scope of the distribution right in copyright law?

For example, I personally think the RIAA's interpretation of the law being that every copy is a distribution is really very harmful to fair use. IMHO, if I purchase content, then it is my right to convert that content to any convenient medium of my choosing -- IOW, if I buy a CD at a music store, then I also believe that I have the right to rip that CD so that I can listen to it on my portable MP3 player. Seems like the recording industry would beg to differ.

And that only scratches the surface of the scope problems. Can I loan my CD to a friend? What if the friend wants to rip it to listen on his MP3 player?

To my knowledge, mone of these issues have ever been substantially resolved in court.

Re:This could be big

[NewYorkCountryLawyer]

I haven't been able to find is a succinct explanation of what particular legal approach the RIAA takes is unconventional

They're too numerous to enumerate but I've highlighted a small sampling of some of them here and here.

Re:This could be big

[NewYorkCountryLawyer]

Do you think there's any chance at all the 2nd Circuit Appeals court will actually rule on some of the other issues at hand

And why wouldn't they?
-The issues are squarely presented.
-After 40,000 cases, there is ZERO appellate authority.
-The 2nd Circuit is considered by many to be the leading copyright court in the country.

Re:This could be big

[sjwaste]

Mr. Beckerman: I'm a law student (graduating this year, economy be damned). I still cant figure out how exactly the Doe D's are able to respond if the initial pleading doesn't identify them. Is it up to the service provider to pass through notice to the Does? Once a Doe receives notice, assuming he does before default judgment is entered, how does the Doe respond without identifying himself or entering an "appearance" and basically waiving jurisdiction? I'm sure I'm missing something procedurally here, hope you can point me in the right direction.

Re:This could be big

[NewYorkCountryLawyer]

Mr. Beckerman: I'm a law student (graduating this year, economy be damned). I still cant figure out how exactly the Doe D's are able to respond if the initial pleading doesn't identify them. Is it up to the service provider to pass through notice to the Does? Once a Doe receives notice, assuming he does before default judgment is entered, how does the Doe respond without identifying himself or entering an "appearance" and basically waiving jurisdiction? I'm sure I'm missing something procedurally here, hope you can point me in the right direction.

You're not missing anything. The RIAA lawyers have been missing something. And unfortunately many of the judges have been missing something.

As you have learned in law school, it is of the essence of the American judicial system that BEFORE JUDICIAL ACTION IS TAKEN AGAINST SOMEONE THEY MUST BE GIVEN NOTICE, AND AN OPPORTUNITY TO BE HEARD.

Re:This could be big

[NewYorkCountryLawyer]

icebike, my advice is not to waste your breath on that AC troll.

Re:This could be big

[morgan_greywolf]

It seems to me that courts have a history of not ruling on issues that they feel might not be substantive to the case at hand. For instance, his privacy rights as relating to the First Amendment or the procedural problems with ex parte requests themselves might cause the 2nd Court to ignore the scope of copyright as insubstantial to the case at hand.

Re:This could be big

[Jason Levine]

Of course, Ray's links give a more in depth explanation, but I think this is the basic summary of the RIAA's unusual tactics:

1. Group a bunch of unrelated "John Does" that you want to sue into one lawsuit in a court that likely doesn't have jurisdiction over any of those John Does. (Mainly this saves the RIAA time, money, and effort for having the file multiple together. Plus, it probably means that the judge won't look at each individual case and see how flimsy the evidence is.)
2. File for discovery of the identity of the John Does without giving the John Does enough time or information to defend themselves.
3. Once the identity is discovered, drop the case. This way it can't be appealed and steps 1-3 can't be ruled illegal.
4. Have your "Settlement Center" contact each of the individuals threatening a massive lawsuit unless they settle. (This shows that they're not *really* interested in suing these individuals. They just want the information so their Settlement Center can strong arm these folks outside of a courtroom into paying the RIAA.)

Most people, at Step 4 will settle simply because they don't have the time and money to spend to defend themselves. They can pay $2,000 to make it all go away or they can spend weeks in a courtroom (likely one far from where they live), spend thousands on a lawyer (which they *may* recoup via a counter-suit but then again might not), and might face fines in the millions. Sure, more people have been defending themselves recently, so the RIAA's tactics post-step-4 have changed slightly, but that's the basic rundown.

Re:This could be big

[NewYorkCountryLawyer]

Oh come on Ray, you know you just did it for that sweet Slashdot cred!

Yeah. That's it. The kharma.

Re:This could be big

[NewYorkCountryLawyer]

http://interviews.slashdot.org/article.pl?sid=06/09/13/1627205 [slashdot.org] There is the interview. It is getting a little old, but you may find it interesting. I see Ray already responded to you.

Gets a little old? I remember it like it was yesterday. The wounds still haven't healed.

Boy Slashdot is a tough town.

Re:This could be big

[NewYorkCountryLawyer]

It says in TFA that SUNY told the students they were intending to comply with the motion to identify

That's AFTER the motion had already been granted. I.e., the RIAA made a motion; no copies were served on anybody; it was just the RIAA and the judge; the judge let them get away with that, and signed the order granting the motion for discovery and ordering the students' identities to be divulged.

Only AFTER losing a motion they never even knew existed, were the students advised they'd lost. Then, on probably a couple of days notice, they had to get a lawyer to step in and make a motion to vacate. But getting a judge to change his or her mind after he or she has already ruled on something is much different than getting a judge not to go in that direction in the first place.

There is no reason in the world why the RIAA could not have made the motion on notice. If it wanted to sue 16 John Does it could have given the university 16 copies of the motion papers and supporting documents to distribute to them. The judge should have insisted on that. Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.

Re:This could be big

[kwandar]

"As you have learned in law school, it is of the essence of the American judicial system that BEFORE JUDICIAL ACTION IS TAKEN AGAINST SOMEONE THEY MUST BE GIVEN NOTICE, AND AN OPPORTUNITY TO BE HEARD."

Ray, Ray, Ray .... its only been a few weeks and you seem to have forgotten a key reason why there is no need for these defendants to be heard before a judge.

Come on Ray ... you know the RIAA aren't filing any more lawsuits, right? They told us so!! They just want to uhm ... uhmm .... know who some of their last remaining customers might be, to make nice? ;)

(I could have modded, but all Ray's comments looked to be +5 and no one could give Ray Beckerman more Karma than he has IRL - thanks Ray!)

Re:This could be big

[NewYorkCountryLawyer]

.... its only been a few weeks and you seem to have forgotten a key reason why there is no need for these defendants to be heard before a judge. Come on Ray ... you know the RIAA aren't filing any more lawsuits, right? They told us so!!

Yes but you fail to take into account the Oppenheim theorem; I'm surprised at your lack of mathematical knowledge. The Oppenheim theorem, named after the RIAA's 'prince of darkness' Matthew Oppenheim, is as follows:

1. The opposite of anything said by an RIAA spokesman = the Truth.
2. An RIAA spokesman said to congressional committees "we discontinued initiating new lawsuits in August".
3. Therefore the Truth must be that hundreds of new cases have been commenced since August, and cases are even being commenced this month.

(I cheated and did some independent investigation, just to see if it does work. I am proud to say the theorem continues to serve its purpose, which is to enable us to learn the Truth. The real value of this theorem is its practical application which is to save time. Instead of looking things up, researching, investigating, doing depositions, etc., we can just find out the Truth with this simple equation. And its success rate is astounding.)

Poor college kid

[Tubal-Cain]

raises significant issues, some of first impression

Translation: I need to buy a suit but don't get paid for 2 weeks.

Slashdot, then and now

[bonch]

Slashdot in 2000:

"Suing Napster is stupid! The RIAA should be going after individual copyright infringers. If they just did that, there wouldn't be a problem."

Slashdot in 2009:

"Suing individual copyright infringers is evil! The RIAA should do nothing while everybody pirates everything under the sun. That way, I can keep getting shit for free without feeling guilty."

Re:Slashdot, then and now

[TheRealMindChild]

No one is contesting that the RIAA should not be going after the copyright infringers. It is how they are going about it. They are gaming the legal system, going after innocent people knowing that almost NO ONE has the means to fight back. It is pretty much an extortion free-for-all.

Re:Slashdot, then and now

[Shagg]

Slashdot in 2009:

"Suing individual copyright infringers is evil!..."

Obviously, you haven't been paying attention to what "Slashdot in 2009" has been saying.

Re:Slashdot, then and now

[Tenebrousedge]

how about: Suing Napster was stupid, they should have bought it.

The problem is that it is technically infeasible to stop filesharing without at the very least being massively invasive of privacy. Compounding the problem is that our current laws don't really take into account the fact that we have this massive high-speed data network built for the express purpose of moving files around.

So we're kind of screwed. On the one hand, our laws are draconian and out of date, and the organization supposedly protecting the rights of artists seems to act more like an organized crime syndicate. On the other hand, artists deserve to be compensated fairly, and we want to encourage respect for the law, lest we end up like China, where (I hear) everything is illegal, but only enforced arbitrarily.

This is a massive cultural shift. The RIAA has failed to catch the rising edge with Napster, and then with iTunes. Their position is absolutely untenable, and they're only making it worse with every passing day. I'd almost feel sorry for them if they had not had so many opportunities to understand what is going on.

It's a very complex issue, and many people are divided about it, but one thing is clear. If slashdot were as simple and morally bankrupt as you describe, I wouldn't be here. Actually, that sounds a lot like Digg...

Re:Slashdot, then and now

[arkhan_jg]

Yeah, that one slashdot guy is a total hypocrit!

What they *should* have done is bought napster, kept it running as was, promoted the hell out of it, and made buckets of money with advertising and promotion. Imagine radio, but with the ad dollars going straight into the record labels pockets (with a small percentage going to the actual artists, as usual)

But since we're on the suing individual uploaders path, lets examine that:

1) laughable standards of evidence gathering. Infringement notices sent to network printers, or even people sharing their own work with a vaguely similar name to something else.

2) Arguably illegal methods of evidence gathering, certainly unlicenced investigators

3) abuse of due process to get default judgements before the defendent even knows they're being sued

4) going after innocent people when it's clear they're innocent; grannies sued for the use of windows software on her mac

5) going after people, no matter the method. Suing dead people, or after losing the case against the parent, refile against the under-age kids

6) extortion; pay a fine now to our settlement centre, or face huge court costs regardless of your innocence

7) blatant lies in court, with technical 'experts' not even considering alternative explanations (unsecured wireless etc), the misrepresentation of 'making available', etc etc

8) going after alleged infringers for huge fines; civil cases are supposedly about making good the plaintiff's losses, instead they want judgements running to hundreds of thousands times their actual losses

9) other abuses of the political and legal system, like root-kits, lobbying for the right to destroy alledged infringers computers remotely, or the three-strikes laws with no evidence required to cut people off the internet at will,
ever increasing retroactive copyright terms, destroying the public domain.

10) doing everything in their power to destroy or limit legitimate alternatives to their current system; hulu/boxee, raising the prices on itunes, DRM, massive rate hikes for online radio, the PRS and google music videos, the list goes on and on.

11) still treating the actual artists like crap, screwing them out of even the small amounts they're contracted to pay for say, online radio

The media cartels are actively damaging the public good, the artists, the legal and political systems with their witch-hunt. and for what?

'home taping is killing music'; 'don't copy that floppy'; 'The VCR is to the movie industry what the Boston Strangler was to a woman alone'; 'you wouldn't steal a car'.

Every time the copyright cartels have complained about new technology destroying their business model, and fighting it kicking and screaming for a few years, it turns round and becomes their new biggest way to make money. Good art is still hard to make; quality and convenience still have value. There's still money to be made, when the economy isn't in the crapper, anyway.

Innaccurate

[Locke2005]

Slashdot now: "The RIAA should be going after anybody who profits from the unauthorized distribution of copyrighted material. In addition, the RIAA should be issuing take down notices or cease and desist orders to those it believes to be distributing copyrighted materials for free (which is the same thing your local library does!) In no case should the RIAA ignore established conventions of due process or rules of evidence (I.e. an easily falsified screen shot in and of itself is not evidence of infringement.)"

We also object to the Record Companies' use of hired guns; it would be much more appropriate for them to say "Sony Music is suing you!" rather than "The RIAA, a front for the Record Companies designed to evade accountability, is suing you!"

I probably missed some, but I think that is the gist of it.

Innaccurate concept of libraries

[bugi]

The difference is that libraries lend a limited number of copies.

Copyright is an industrial era concept that doesn't work terribly well in the information age where information scarcity no longer applies. Copyright was a wonderful innovation in its day, but today we need another way to encourage people to publish their works.

Anybody got any ideas?

Re:Free music for all!

[Gorshkov]

Doesn't anyone want musicians to earn something? Seriously in case nobody noticed they Represent the "RECORDING INDUSTRY". Not you, not me, not the artists. Remember though, they (the RIAA) pay the artists much more than those pirating (where last time I checked the artists gets 0). So in some ways the RIAA way is protecting themselves, they overstep, but seriously look what they're up against. As someone who knows 2 professional musicians, publicity is good but at some point you need to pay the bills. A lot of smaller bands give away music if you just take the time to visit their sites.

My daughter downloads a metric buttload of music every week, and listens to it.

When she finds a group she likes, she buys the CD or DVD, concert DVDS, tshirts, posters, and all the other paraphernalia. If she doesn't like it, she doesn't listen to it.

For groups she already knows she likes, she won't even download the stuff in the first place - she feels guilty, and will suffer without until she can afford to buy it.

Her downloading costs artists/labels/whoever exactly ZERO sales .... and generates more than they would have had otherwise.

She must be personally responsible for the sales of at least 10 DVDs of Repo: The Genetic Opera, and at least that many more for a group called Juno Reactor, after proselytizing to all her friends.

She should be getting a commission, not a subpoena.

Re:Ain't AskSlashdot

[NewYorkCountryLawyer]

Alright, it's time to shut up with the frigging questions already. Does this look like an AskSlashdot or Ask So-And-So story? No. So ixnay with the on-topic banter already, so the funny yet completely irrelevant posts can get some well deserved mod points. If Taco sees the completely skewed ratio of Funny to Interesting posts for this story he'll have to start deleting crap, and then all your typing will be for naught. I'm already starting to have dirty voyeur feelings like I've hacked into NewYorkCountryLawyer's gmail account. So enough already.

I think you're wrong about this. If there were a minimum Funny-to-Interesting ratio, I'd have been banned from Slashdot quite a while ago.