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Appeals Court Stays RIAA Subpoena Vs. Students
NewYorkCountryLawyer writes "The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it. That is about to change. In Arista Records v. Does 1-16, a case targeting students at the Albany Campus of the State University of New York, the US Court of Appeals for the Second Circuit has decided to put things on hold while it takes a careful look at what transpired in the lower court. The way it came to this is that a few 'John Does' filed a broad-based challenge to a number of the RIAA's procedures, citing the defendant's constitutional rights, the insufficiency of the complaint, the lack of personal jurisdiction over the defendants, improper misjoinder of the defendants, and the RIAA's illegal procurement of its 'evidence' through the use of an unlicensed investigator, MediaSentry. The lower court judges gave short shrift to 'John Doe #3,' but he promptly filed an appeal, and asked for a stay of the subpoena and lower court proceedings during the pendency of the appeal. The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success. The Appeals Court disagreed and granted the motion, freezing the subpoena and putting the entire case on hold until the appeal is finally determined. As one commentator said, 'this news has been a long time coming, but is welcomed.'"
This is big. This will be the very first appellate scrutiny. By staying all lower court proceedings until the appeal is decided, the Court signalled that it's taking this very very seriously.
Ray Beckerman +5 Insightful
Is this a sign that the judicial system is finally going to start to treat the RIAA like the mobsters they mimic?
John Doe #3; please raise your hand so that I may buy you a [insert beverage of choice here].
Mass stupidity routed back to the corner, swears revenge and runs off into the sunset with 'Yackety Sax' music in background to return at a later court date.
404 not found
-- The morphemes of your disquisition are ascertainable, but they have eschewed an ambit of transpicuous exposition.
The problem with threatening people at random, is that eventually you make the mistake of threatening someone who has the resources to take you all the way to the supreme court. The RIAA seems to have a pattern of targeting those least able to defend themselves (college students, single moms, seniors) but it look like now they have a ready, willing, and able opponent who wont just roll over. Let's all collective summon up our best Nelson Muntz impressions: "Ha-ha!"
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Pigs have been seen flying over local pastures, and hell is recording record low temperatures.
The musings of just another geek and his junk.
The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it.
Wait, I am missing something. In the US doesn't the prosecution have to have a defendent before they can start preceedings? They can investigate all they like but you can't prosecute without a defendent. What someone is going to knock on my door one day and say "BTW you have been found guilty of murder, your trial happened last month, your getting the chair"??
The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success.
I enjoyed this one... "Your honor, don't grant the appeal, they have no chance of winning. It would be silly to even honor their request. BTW, if you do what we say they WILL have no chance of winning and that makes us right, so you need to do as we say because we are right and you would not want to be on the side of wrong, because we are right."
I do not support "The Man". I also do not support your irrational stupidity
(a) The pirates deserve to be slammed for STEALING (Yes I said it, because that's what it is!)!
(b) The pirates ALSO deserve all the due process and constitutional protection that the US has to offer--and the RIAA assiduously tries to ignore! You can't slam the thieves until the thieves get a FULL and FAIR day in court.
The Pirates deserve to be hammered, but only after every last one of their constitutional rights is respected!
I am constantly hearing on /. that mediasentry does not have an investigators license. I have to say I don't understand the process that well, but I figured it would be illegal to operate without a license. Shouldn't the cops or fbi be shutting down the company? I am glad to final hear that case evidence will final be forming for the RIAA's process. It will make future attempts by the RIAA much harder if the case is thrown out.
What do 'short shrift' and 'misjoinder' mean, in english?
And before someone gets smart and says 'let me google that for you,' I already have.. it still doesn't make sense to me:
Misjoinder An incorrect union of parties or of causes of action in a procedure in criminal or civil court Shrift the act of being shriven Shriven shrive - To hear or receive a confession (of sins etc.); To prescribe penance or absolution; To confess, and receive absolutionA little help, lawyery or IANAL-y friends?
This is the first time an appeals court has examined whether or not having a court hearing without the presence of the defendant (ex parte preceding) is permissible given such little evidence, no real damages incurred by the plaintiff (insufficiency of complaint), whether or not the given court is even the right place to hear the complaint (lack of personal jurisdiction over the defendants), whether or not lumping all of these defendants together as a collective group is legitimate (improper misjoinder of the defendants), and whether or not it's complete BS that the RIAA is using a private group to invade individual's privacy to obtain information (illegal procurement of evidence).
That last description may be a little biased.
nsuficiency of the complaint? It seems to me it states clearly what/when.
How about "who?"
your appeal has no chance of success
make your time ...
HA HA HA HA
For great justice indeed.
I'm no fan of the MAFIAA at all... However...
Troll alert.
Ray Beckerman +5 Insightful
In the Plaintiff's Motion to Quash, they state in footnote 1, "Defendants rely on the same arguments Mr. Beckerman has raised and lost in other cases." Strangely enough, they fail to cite the actual cases in which these arguments have been "raised and lost." Are there actual legal precedents in which Mr. Beckerman's arguments have been found lacking, or are the RIAA lawyers just blatantly lying?
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Unlicensed investigator?
An unlicensed investigator is not allowed to investigate at all. You can ask a friend to check what your wife is doing when you're not at home, you can ask a licensed investigator, but if you hire an unlicensed investigator, he or she is breaking the law. In other words, the so-called "evidence" was found by someone who was breaking the law in doing so. That on its own is not the problem, if the evidence can be checked independently of how it was found. If an unlicensed investigator finds physical evidence, calls the police and the police checks the physical evidence, that's fine. But here, the evidence is the investigator saying "I downloaded this music from this computer". Since the investigator was already breaking the law, clearly anything he or she says cannot be trusted.
Hiring unlicensed investigators also means that the person suing cannot be trusted. In a civil court case, the judge goes by the weight of the evidence. If I can show that I am sued by a person who used illegal means to find evidence, that makes it more likely that the same person will be lying about other things as well.
You never expect irony, do you?
Want to be a professional wrestler? Visit www.iyfwrestling.com
@iyfwrestling
P2P users who distribute (upload) and copy (download) copyrighted material violate the copyright laws.
It is not clear that every copy made of copyrighted material violates copyright laws. For example, if I make a backup copy of a disk, store it on a network drive, and then transfer it back to my computer, have I violated copyright laws?
SUNY maintains logs that match IP addresses with their users' computer hardware.
SUNY maintains logs that match IP addresses to MAC layer addresses. It is well known that these MAC addresses can be spoofed on virtually all network adapters (Hint to infringers: override the default address assignment on your Ethernet or Wireless card, then switch it back when somebody accuses you.)
Plaintiffs' allegations meet the heightened scrutiny required for expedited discovery
I believe the criteria for expedited discovery is that irreparable damage is done to the plaintiffs if discovery is delayed. Plaintiff's own statements that millions of people are using P2P argues against this; one more or less out of millions could hardly make a difference in the economic damage done.
The Columbia court noted that discovery of infringer's identity from the ISP is appropriate when plaintiff could (1) identify the party with sufficient specificity to demonstrate that the defendant is a real person (2) identify all previous steps to locate the defendant and, (3) establish that plaintiff's suit could withstand a motion to dismiss. Even if this were the standard, Plaintiffs have easily satisfied it in this case.
Bullshit. On all three points.
I've abandoned my search for truth; now I'm just looking for some useful delusions.
Just because I am willing to play the Devil's Advocate (in all the sense of the word in this case) doesn't mean my question is invalid. And labelling me a troll is as ad hominem as the attacks that were made against you. Aren't the points I make valid or at the very least wrong but answer-worthy?
I'm genuinely wondering what the problem is. I agree with the misjoinder, it should have been 16 separate cases, but the rest of the arguments the Does make are not sensible at all. And about the misjoinder, the judge says that it is premature at this stage, not that it's invalid at all (I'm a lay person, so I don't see that it is a problem).
I mean, let's turn the tables here, I'm an individual developer, I find people putting my software on the net and sharing them, I track down their IP addresses, is it unreasonable to ask the ISP one time rather than 20, assuming they've all been doing the same illegal activity (downloading my software illegally)?
If you want to actually reply, I'll recap which of the arguments they make are questionable to me:
- 1st amendement? P2P isn't speech.
- Insufficiency of the complain? the RIAA says what and when.
- Unlicensed Investigator? It's not a criminal case, and while MediaSentry's findings' truth value are questionable, shouldn't that come after?
- Lack of jurisdiction? How can the RIAA (or the Court) know it has jurisdiction or not before actually finding out who the Does are. The judge clearly says that's a valid point that could be brought up after the Does are identified.
Thanks
One shall speak only if what one has to say is more beautiful than silence
Unlicensed investigator?
An unlicensed investigator is not allowed to investigate at all. You can ask a friend to check what your wife is doing when you're not at home, you can ask a licensed investigator, but if you hire an unlicensed investigator, he or she is breaking the law. In other words, the so-called "evidence" was found by someone who was breaking the law in doing so. That on its own is not the problem, if the evidence can be checked independently of how it was found. If an unlicensed investigator finds physical evidence, calls the police and the police checks the physical evidence, that's fine. But here, the evidence is the investigator saying "I downloaded this music from this computer". Since the investigator was already breaking the law, clearly anything he or she says cannot be trusted. Hiring unlicensed investigators also means that the person suing cannot be trusted. In a civil court case, the judge goes by the weight of the evidence. If I can show that I am sued by a person who used illegal means to find evidence, that makes it more likely that the same person will be lying about other things as well.
Absolutely, and Mediasentry's evidence should be thoroughly examined and disputed, but rejecting it out of hand because the person is unlicensed is wrong IMO.
How about you bring suit based on your friend reporting whatever. Should the judge basically say "your friend is not a license investigator, you thereby have no argument whatsoever"? I realize the weakness of the analogy, but shouldn't the validity of the argument be discussed rather than dismissed without examining?
One shall speak only if what one has to say is more beautiful than silence
Unlicensed investigator? It's a civil trial, "illegal evidence" applies only to criminal cases, and by government agents, not by civil parties.
Yes, but remember, the RIAA and MPAA keep calling it "stealing" which is not a civil offense. Meanwhile, if it actually was classified as "stealing" and "theft" then said investigatory practices wouldn't be allowed in the first place.
They are, essentially, trying to have their cake and eat it too.
Now, there are those that may argue that this whole debate on word usage is semantics, however it is very important in law, like so many other things, to use the correct word for what you mean. From what I understand (standard IANAL disclaimer here) "stealing" and "theft" in US law can only be applied with the original owner no longer has the property that was taken from them and therefore can no longer use it. This applies if you were to take someone's computer or, I suppose, even cut their mp3 and paste it onto your usb key and take it with you. In each case, the original owner now has property that was taken from them, without any form of compensation and that they can no longer make use of.
Copying copyrighted digital files is not "stealing" or "theft" but is actually "Copyright Infringement" which, as you pointed out, is a civil matter.
A lot of people don't understand these distinctions (part of the annoying part of US law... much of it is seems to be no longer easily understandable by the average joe) which Hollywood is at least partially to blame for since both the RIAA and MPAA would have you believe that copyright infringement is "stealing" and that ALL "file sharing" is both illegal and evil in nature.
I think that you mean "impermissible evidence" not "illegal evidence". And yes, it does apply to civil parties. If Bob breaks into my house and steals the daily diary in which I lay out my plan to defame him, he still can't use it in court. First of all, if he shows up in court with it, he'll be arrested for theft or receiving stolen property. Secondly, allowing him to use it would undermine the very rule of law which the court is attempting to enforce.
In most states only a licensed investigator is permitted to procure evidence to be used in court. Why? Because if you license investigators you can create oversite for them and ensure that they follow a set of pre-defined and pre-approved methodologies. Otherwise, each and every case has to be prefaced with a hearing on the accuracy and legitimacy of the information collected by the investigator.
Unlicensed investigator? It's a civil trial, "illegal evidence" applies only to criminal cases, and by government agents, not by civil parties.
Yes, but remember, the RIAA and MPAA keep calling it "stealing" which is not a civil offense. Meanwhile, if it actually was classified as "stealing" and "theft" then said investigatory practices wouldn't be allowed in the first place.
I totally agree about everything you say, this is one of my pet peeves too. However this is a civil lawsuit in this case, and they're calling it "copyright infringement" in the suit.
Whatever PR spin they put on the thing, or the bullshit they tried to pull in other cases (or even in this one, actually, just read their opposition to the quashing here: http://beckermanlegal.com/Lawyer_Copyright_Internet_Law/arista_does1-16_081014RIAAOppos.pdf ), this doesn't invalidate my point...
One shall speak only if what one has to say is more beautiful than silence
How about you bring suit based on your friend reporting whatever. Should the judge basically say "your friend is not a license investigator, you thereby have no argument whatsoever"? I realize the weakness of the analogy, but shouldn't the validity of the argument be discussed rather than dismissed without examining?
There is a difference. My friend is not a licensed investigator, but he can have a look around things if I ask him to, as long as he is not investigating for hire. Perfectly legal. If he goes to court, the judge can ask him questions to find out whether he is a reliable witness, and his evidence would be treated accordingly. The unlicensed investigator, on the other hand, has already broken the law just by taking money for investigating when he didn't have a license. We don't even need to examine what he says in court, he can't be trusted anyway.
You also miss that this unlicensed, illegal investigators testimony is used to breach the privacy of presumably innocent people. You have to have a very good reason to do that. For example, if my friend, he is just an ordinary and presumably honest person, claims that he saw you stealing something, then this may be enough for the police to get a search warrant and then breach your privacy. If that unlicensed, illegal investigator claims that he saw you stealing a car, then this is most likely not enough for the police to get a search warrant. And what the RIAA wanted was the equivalent of a search warrant.
Aren't the points I make valid or at the very least wrong but answer-worthy?
No, in my personal opinion. Either you do not know what you are talking about, or you are a troll. I would like to think it's the former, rather than the latter.
Ray Beckerman +5 Insightful
No using an unlicensed investigator just weakens any evidence and any reliance on that evidence. For example if you suspect your spouse of cheating. You can get your friend to follow your spouse or hire a licensed investigator. Now if your friend or investigator got pictures of your spouse cheating, there's not much difference who took the picture. You have solid evidence. If your friend or investigator merely witnessed it, then the court has to rely on the credibility of the witness. A licensed investigator's testimony has more weight than your friend because they are deemed to be impartial. In this case, the "evidence" being produced is not very scientifically reliable. So more weight has to be given to credibility of the witness. An unlicensed investigator has credibility issues.
Well, there's spam egg sausage and spam, that's not got much spam in it.
IANAL, etc. and I'm no fan of the MAFIAA at all... However...
I just read the lower court judge's ruling in denying the motion to quash and I frankly don't see a problem with the judge's reasoning.
You don't see the problem because you are not a lawyer.
Why? There is a clearly defined way of getting information into the court system. Media Sentry & the RIAA don't follow those rules, so why should they be allowed to present their information? The alternative is to have to preface every case with a hearing on each piece of evidence to determine if it was obtained in a valid manner.
Why should the court allow a company to waste it's time with hundreds of hearings that do nothing except increase the cost of the litigation for the defendant, when it could all be reduced to 2 questions:
It's all about credibility. If you used illegal means to get your "evidence," there's no assurance that the "evidence" wasn't planted there in the first place. There are no assurances either way, but at least with evidence obtained legally, it's showing that the person who acquired the evidence respects the rule of law.
"If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be."
Aren't the points I make valid or at the very least wrong but answer-worthy?
No, in my personal opinion. Either you do not know what you are talking about, or you are a troll. I would like to think it's the former, rather than the latter.
I do not know what I'm talking about, that's the whole point. "IANAL" and "Anyone cares to explain?" in my OP is there to explicitly state that I don't understand and would like to. I made no statement of fact (ie, "the RIAA is right"), I asked a question...
I went the trouble of reading the documents, that of both parties and the judge (which, I admit, is very unslashdot-like) to make my own idea on the thing. And was left with those questions.
I realize you probably wouldn't be able to say that the arguments may be [somewhat] valid even if you thought it to be the case as it could be used against you, which is why I didn't ask you specifically. However I thought the "comment" part of stories was for discussing the topic...
Thanks for taking the time to reply to my comment however, and for posting these stories.
One shall speak only if what one has to say is more beautiful than silence
If material can be accessed on the Internet, it is free. Free to be used in any way the user desires.
This has been the way it has been since the beginning and it continues to be the way of the Internet. A few misguided people think they can impose their outmoded values on Internet users - only to be slapped down. The RIAA is going to lose because they cannot see how the endgame is going to play out. People will continue to take whatever they want because it is available through the Internet. States cannot pass laws controlling the Internet because there is always another State which will ignore, bypass or openly flount laws like this.
So this means that "piracy" and file-sharing will continue forever, can't be stopped, Attempting to persecute students for exercising their "Internet rights" is bound to fail eventually - because as just about everyone under 30 knows you can't stop the march of progress on the Internet. It is all out there for the taking, so we are going to take. And take, and take and take.
Can't be stopped.
By the way, only a few states require computer forensics be conducted by licensed investigators. The effects of laws like this are not good, but it seems like a sensible precaution. Unfortunately, what this does is create a credentialism system where nobody but a "licensed" person can perform certain work on computers. If investigators need licenses, how about people that are potentially exposed to secret information as consultants? Shouldn't they be licensed as well? How about all system administrators? So they can assist with law enforcement investigations of things like child porn and such, right?
Credentialism has other problems as well, in addition to just creeping into things. Today you can't legally teach in a classroom without a "teaching certificate", a type of license. Doesn't mean that you know anything other than being able to pass the certificate test - which is a 5th grade level exam in most states. Introducing this for anything in the area of IT is a generally bad idea.
There is a clearly defined way of getting information into the court system. Media Sentry & the RIAA don't follow those rules, so why should they be allowed to present their information? The alternative is to have to preface every case with a hearing on each piece of evidence to determine if it was obtained in a valid manner.
Why should the court allow a company to waste it's time with hundreds of hearings that do nothing except increase the cost of the litigation for the defendant, when it could all be reduced to 2 questions:
* Are you a licensed investigator?
* Did you follow the peer reviewed guidelines in obtaining this information?
Exactly right.
Ray Beckerman +5 Insightful
IANAL, etc. and I'm no fan of the MAFIAA at all... However... I just read the lower court judge's ruling in denying the motion to quash and I frankly don't see a problem with the judge's reasoning.
You don't see the problem because you are not a lawyer.
I'm going out on a limb, here, but I would bet you that the vast majority of non-lawyers would also have "found" a lot of "problems" with the Magistrate Judge's decision. (Which is one of the reasons I raised my "troll" alert on the GP post, but I must confess that my primary reason for raising the "troll" alert was the language: "I'm no fan of the MAFIAA, however....." Most of the trolls -- or shills -- start out with that disclaimer.)
Ray Beckerman +5 Insightful
How about you bring suit based on your friend reporting whatever. Should the judge basically say "your friend is not a license investigator, you thereby have no argument whatsoever"? I realize the weakness of the analogy, but shouldn't the validity of the argument be discussed rather than dismissed without examining?
There is a difference. My friend is not a licensed investigator, but he can have a look around things if I ask him to, as long as he is not investigating for hire. Perfectly legal. If he goes to court, the judge can ask him questions to find out whether he is a reliable witness, and his evidence would be treated accordingly. The unlicensed investigator, on the other hand, has already broken the law just by taking money for investigating when he didn't have a license. We don't even need to examine what he says in court, he can't be trusted anyway.
If the judge is right, this is not true. Information obtained illegally is admissible in civil lawsuits. (The judge goes farther and says MediaSentry's activity is not illegal, which is another point entirely). The judge says this:
Even if the information was illegally obtained, this does not necessarily foretell its inadmissibility during a civil trial. Other than an errant citation to a United States Supreme Court case, the Doe Defendants do not proffer any other precedent to uphold this notion that illegally obtained evidence is somehow excluded from a civil trial, and this Court has been unable to unearth any case to confirm this novel concept.
You also miss that this unlicensed, illegal investigators testimony is used to breach the privacy of presumably innocent people. You have to have a very good reason to do that. For example, if my friend, he is just an ordinary and presumably honest person, claims that he saw you stealing something, then this may be enough for the police to get a search warrant and then breach your privacy. If that unlicensed, illegal investigator claims that he saw you stealing a car, then this is most likely not enough for the police to get a search warrant. And what the RIAA wanted was the equivalent of a search warrant.
So you're saying if I hire some homeless person (hey, I'm cheap) to watch over my car, someone steals it, the homeless guy I hired tells me who the thief is and I go to the police, they won't be able to get a search warrant? If that's true that's fucked up...
How on earth does someone suspecting someone they can only partially identify go about and find out who the person really is if what you say is true?
One shall speak only if what one has to say is more beautiful than silence
I went the trouble of reading the documents, that of both parties and the judge ..... And was left with those questions.
Actually I didn't see any questions, I just saw your statement of your opinions. If your question is "this is my opinion, why am I wrong?", my answer to that is : "please read the papers that were prepared by Richard A. Altman, in the lower court and in the appeals court, and the numerous authorities he cited to the Court. They correctly state the law. There is nothing I could tell you that Richard has not already said".
Obviously, you are much more satisfied with the Magistrate's decision than are 3 judges on the United States Court of Appeals for the 2nd Circuit. Which doesn't mean you're wrong and they're right. But looking at the composition of that panel, and having studied the law myself for the past 35 years, IMHO you are wrong and they are right to be concerned.
Ray Beckerman +5 Insightful
LOL!!!
Well played, AC.
Okay Mr. Biden, don't you have a ribbon cutting or something to do. We know you're jealous you didn't get your own NSA hacked Blackberry!
Down With Slashdot BETA!!! I've been around the corner and seen the oliphant; you can only abuse me from your perspecti
I suppose we should thank the woefully ignorant Magistrate Judge who bowed and scraped to every half-baked RIAA argument presented to him. If he's not already on the take from the RIAA for that performance, he should be. After all, it was only his incredibly dumb performance, validated by the trial judge who barely took the time for the decision to reach him, let alone actually read it, that have created the issues for this appeal.
That, and the fact that John Doe #3 is willing to fight this out. Perhaps the RIAA figured no college kid would actually take it this far.
I expect the RIAA to try to get out of this one and hope it will just go away. After all, sooner or later this had to happen so they must have a contingency plan - something more compelling than telling the Appeals Court that the Defendant has no chance of winning - to deal with this situation when it finally arrived.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
IANAL, etc. and I'm no fan of the MAFIAA at all... However... I just read the lower court judge's ruling in denying the motion to quash and I frankly don't see a problem with the judge's reasoning.
You don't see the problem because you are not a lawyer.
I'm going out on a limb, here, but I would bet you that the vast majority of non-lawyers would also have "found" a lot of "problems" with the Magistrate Judge's decision. (Which is one of the reasons I raised my "troll" alert on the GP post, but I must confess that my primary reason for raising the "troll" alert was the language: "I'm no fan of the MAFIAA, however....." Most of the trolls -- or shills -- start out with that disclaimer.)
Hadn't I started with the disclaimer, I'd have been labelled one anyway, guess next time I'll avoid that starting sentence ;-)
And that's right, I'm no lawyer, and I did see a problem with them bundling 16 cases together, my question was on the other 4 points.
I'm close to getting an answer on wether the judge should have thrown out the evidence presented by MediaSentry. However it seems that even if it's illegally obtained, it's admissible in a civil trial. The case cited (summary here?: http://supreme.justia.com/us/380/693/ ) to support that it shouldn't is way over my head to debate (after reading it about the quasi-criminal nature or whatnot), which is why I'll stop here and accept that until further notice, which leaves me with 3 points ;-)
One shall speak only if what one has to say is more beautiful than silence
Obviously, you are much more satisfied with the Magistrate's decision than are 3 judges on the United States Court of Appeals for the 2nd Circuit. Which doesn't mean you're wrong and they're right. But looking at the composition of that panel, and having studied the law myself for the past 35 years, IMHO you are wrong and they are right to be concerned.
Frankly I'm happy to see the Court of Appeals being concerned, it at least means that whatever reasoning the Magistrate used is going to be examined and the defendants get a[nother] chance at making their point, which would otherwise be moot.
So far, however, they haven't said anything about the Magistrate being wrong, which is what I'm questioning. I don't frequently think that because someone is generally right, everything they say is right...
One shall speak only if what one has to say is more beautiful than silence
It seems to me that you have a record of losing before exactly TWO judges - one Magistrate and one Real judge - out of the hundreds or thousands of them throughout this great country. That you keep having to face these same TWO rigid (need I say, dishonest?) judges who have managed to corral ALL of these cases in their district into their own courtroom because they have accepted the RIAA lies that all of these cases are related, and too complicated for other judges to understand. It is like all bank robbery cases in the district going to The Hanging Judge - or all murder cases being heard by The Bleeding Heart Liberal Left Judge. There is no chance to see a preponderance of legal opinion being shown to Mr. Beckerman when he continually has to face the same TWO judges every time. This is not justice, or fairness, or equality to these Defendants.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Improper joinder.
No valid reason for ex parte proceedings.
And apparently a good part of your mind.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
Improper joinder. No valid reason for ex parte proceedings. And apparently a good part of your mind.
Thanks for questioning my sanity, I do that frequently too. Though that leads me to wonder how one can be objective about one's own sanity... Anyway ;-)
My questions are not about the improper joinder, I agree with that.
OTHER arguments.
One shall speak only if what one has to say is more beautiful than silence
And oh yes, their whole rational for expedited discovery is complete B.S. They are trying to get the identifying information before anyone can rally to stop them.
And don't forget that this entire case is a sham proceeding to start with. They have no intention of seeking actual relief for their alleged damages at trial. This case will be dismissed - because it absolutely cannot be won - the moment they've misused the court system to get private information not available to them otherwise. It's a loophole in the court system that needs to be closed now that people are learning the true need of privacy from well-funded, unscrupulous, enemies.
"It's the height of ridiculousness to say for those 9 lines you get hundreds of millions."
It seems to me that you have a record of losing before exactly TWO judges - one Magistrate and one Real judge
I haven't lost any "cases". I said I lost some "motions". I lost 3 motions on the John Doe procedural issues. In the named defendant cases, I made 4 dismissal motions, each based on 2 different topics: (a) the making available issue and (b) the specificity issue as to downloading & distributing. Here is the track record:
-Elektra v. Santangelo: judge denied motion as to (b), didn't say how she was ruling as to (a);
-Maverick v. Goldshteyn: judge denied (b), deferred (a) until after discovery on the ground that he did not understand the technology;
-Electra v. Barker: judge granted motion as to (a) and denied it as to (b);
-Warner v. Cassin: motion never decided because RIAA withdrew the case before it could be decided. There were 7 different judges, no magistrates.
Ray Beckerman +5 Insightful
So you're saying if I hire some homeless person (hey, I'm cheap) to watch over my car, someone steals it, the homeless guy I hired tells me who the thief is and I go to the police, they won't be able to get a search warrant? If that's true that's fucked up...
See, you come up with this straw men, but they are quite easy to blow down. The situation that I described and the one that you described are completely different. Case 1: Unlicensed investigator is trying to dig up dirt on a person. And comes up with an accusation of car theft. There is no evidence of theft except the statement of an unlicensed investigator. Case 2: Homeless person is hired to watch your car. Note that he isn't acting as an investigator. He doesn't need a license for car watching. He hasn't done anything wrong. And his statement is not the only evidence of theft: There is also the evidence of the car's owner, who found that his car is gone.
So yes, the police shouldn't get a search warrant on the word of a scumbag and nothing else. They should likely get a search warrant based on the word of a car owner who reports his car stolen and a homeless person who witnessed the theft.
Er, what do you think Sony's "core business" is? Hint: it's not TV sets.
Er, what do you think Sony's "core business" is? Hint: it's not TV sets.
I'd bet Sony makes more money off of music and movies in America than they do from hardware. Like everything else, most low-to-mid grade electronics Sony sells now is made outside of Japan in cheaper Asian factories. I can't imagine the profit margin from things like headphones and Walkmans are all that great compared to the money they're bringing in from record labels and Columbia Pictures.
Life is hard, and the world is cruel
See, you come up with this straw men, but they are quite easy to blow down. The situation that I described and the one that you described are completely different. Case 1: Unlicensed investigator is trying to dig up dirt on a person. And comes up with an accusation of car theft. There is no evidence of theft except the statement of an unlicensed investigator. Case 2: Homeless person is hired to watch your car. Note that he isn't acting as an investigator. He doesn't need a license for car watching. He hasn't done anything wrong. And his statement is not the only evidence of theft: There is also the evidence of the car's owner, who found that his car is gone. So yes, the police shouldn't get a search warrant on the word of a scumbag and nothing else. They should likely get a search warrant based on the word of a car owner who reports his car stolen and a homeless person who witnessed the theft.
I still agree that bundling the Does together is wrong.
I also agree that whatever mediasentry is doing is not a proof of anything.
I also agree that shooting wildly as the RIAA does is abusing the system.
However I still think that even if it is insufficient to prove infringement, it is reasonable enough a suspicion to warrant inspection, and thus the discovery of who the people are, albeit not ex-parte.
The unlicensed investigator thing does not mean it's inadmissible in a civil lawsuit. If MediaSentry is breaking the law in any way, the Does should sue them.
To keep on with analogies, something that's closer to what's really happening then, since the last one failed. Suppose I own a hangar with stuff and I think some people are stealing. I pay some [unlicensed] dude to go take pictures of people leaving the hangar. He grabs license plate numbers.
That's definately not proof of anything, but shouldn't it be sufficient for me to file a suit against Doe with license plate number whatever and get the court to identify the person and get a search warrant?
One shall speak only if what one has to say is more beautiful than silence
I don't want to litigate the case online, but there is a lot of misunderstanding here of what this case is about and what will happen from here. Essentially, I asked the Court to stay the subpoena, because the issue is Doe 3's right to remain anonymous, and if Doe 3's identity is disclosed, it would obviously become impossible to get a ruling about that right...cat out of bag, and all that...So by granting the stay, the Court agreed at least that the issues are arguable, and that the subpoena should be on hold while they consider them. And of course Ray is right, that this case is a big deal, since no appellate court has dealt with the RIAA's basic legal strategy in these cases, and now they will be able to take a close look at all of it. The next step is filing briefs saying why I think the District Court judge was wrong, and the plaintiffs filing one saying why he was right. The appeal will be argued sometime in August, I think, and Ray will certainly post everything on his blog as it happens. I hope people can make it to the beautiful courtroom when it happens. And thanks to Ray for keeping these issues alive. I just sort of quietly litigate them in the courthouse, and don't really like to blow my own horn... Richard A. Altman
All I want to say is: God bless you... and take those devils to hell!
Troll alert.
Just because this is Slashdot, doesn't mean that you have to behave like just another moron, Ray. Even if the OP was 100% wrong, the fact that it was presented reasonably deserved more than you gave. Your response just made you look unprofessional, not to mention slightly dumb or at least insensitive to queries. A short explanation was in order, not a berating and a dismissal. Try harder. You're held to a higher standard than most here.
Sorry you disapprove. Why don't you set your own standards for yourself, and let me set my standards for myself. Here on Slashdot, when conversing with my friends, I have the right to be "just another moron". So why don't you take a flying leap?
Ray Beckerman +5 Insightful
You say you're not a troll, but you're arguing pretty hard for a "disinterested observer". And your arguments are pure bunk.
Ray Beckerman +5 Insightful
You have said that you are not a lawyer. So why do you feel qualified to opine on such a legal technicality as the admissibility of evidence?
Ray Beckerman +5 Insightful
All I want to say is: God bless you... and take those devils to hell!
Amen.
Ray Beckerman +5 Insightful
Hey Ray, Ryan from eZee.se here, forgot to thank you as well for posting this on SD. Have a good weekend! Cheers!
Is there any believer in copyright here who can argue the case in favor? The GP obviously can't. His arguments weren't strong, they were the usual massively overreaching weakling "copying = theft" trash that most Slashdot readers can refute in 2 seconds. That argument, and the confusion of the right to copy with the right not to be plagiarized, conflation of public knowledge (whistle a song you heard on the radio) with private (give out your credit card #), and the assertion that we should embrace copyright because the GPL wouldn't work without it, and of course the "starving artists" and sermonizing over how are they to earn a living, seems to be the best that defenders of copyright can muster.
Could it be we are not hearing good arguments in favor of copyright because there aren't any?
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
You say you're not a troll, but you're arguing pretty hard for a "disinterested observer". And your arguments are pure bunk.
And I'm a disinterested observer in this case only in this that I'm no party to the case, however considering I engage in P2P activities, I like to know where I would stand, so in that sense I'm interested.
And that's why I seldom argue :-) It's too time consuming when you want, for a change, to try and defend [part of] an unpopular idea (in this case, that the RIAA may be partially right).
I'm not arguing for the RIAA itself for a number of reasons, the first of which is that they're a bunch of extortionist putting out low-value junk music to the point where (until recently) there was nothing else to listen. However, I'm trying to discuss the arguments made in the case, individually, and not as a bundle. Of the 5 presented, the RIAA vs Does thing should have been thrown out based on one (the bundling of Does), if only that. Does that means that I should accept at face value all the other arguments the defence presents? Not at all...
Of the other 4, the only one anyone ever replied to was the use of MediaSentry. Their methodology and their "expert" (great transcript of your bashing him btw ;-) ) are junk and does not prove anything (you can't tell who's sitting at a computer at a given time, IP adress or not). If, however, a copyright holder were to file a suit against a single Doe, does the fact that the evidence was obtained illegally through an unlicensed investigator mean the case should be thrown out? That's what I'm asking and all the elements I could see initially lead me to think otherwise.
The case used as a reference (about the quasi-criminal illegal evidence thing) is way too technical for me to properly comprehend. Which is why I stopped trying to understand it (I'll come back to it when I have a law degree, in another life :p). As such, I don't feel qualified at all to discuss the technicality, which is why I stopped discussing it technically. All I'm left with arguing on that point is wether it's "right" to prevent one from trying to obtain proof based on non-proof/inadmissible/unlicensed/whatever, which is debatable (stricto sensu), and what that last post was about.
You say my arguments are bunk, I take that as your expert opinion on the matter. I now know for a fact that illegally obtained evidence, by non-government agents, is inadmissible in court, even in a civil trial. Case closed for that point as far as I'm concerned. I still think that it shouldn't be the case in this instance, as a matter of opinion.
Truth be told, I'd rather have noone else to defend me in a lawsuit against the RIAA should it ever happen (unlikely, I'm not a US citizen), I thought however that the comment section was for discussing, not just for chest-beating and rooting for the team. The fact that you've been winning case after case (or have them dismissed) means I'm most likely wrong, but does that means I should suspend any thinking ability I may possess and take everything said by the side I favor as truth? That would be the equivalent of an "appeal to authority" fallacy and that of division as well, and I just can't do that.
I'm away for the week-end, so I'll stop the discussion here. I'll just end this post with thanking you for your contribution, to the thread, to the news section in general and to my personal enlightenment :-)
Also, thanks for defending those people as you do, and for making the documents/discussions public, that's a lot of food for thought and interesting reads.
One shall speak only if what one has to say is more beautiful than silence
1. I am not here to give legal advice, so you if you want my "expert opinion" you would have to consult with me, which you have not. Saying that your comment was "bunk" was merely an informal comment on your comment.
2. Long ago when I got involved in blogging about copyright cases, and visiting Slashdot, I had to develop protocols for myself, since my profession is trial lawyer, not blogger. One of those protocols is that I NEVER get into debate over legal issues WHICH I HAVE NOT YET LITIGATED, because it would disadvantage my clients to give the RIAA a preliminary free look at my thoughts. I never discuss any of the legal issues until after they have been formally and publicly argued. The only thing I have said to you about the law so far in this case, and the only thing I am going to say at this stage, is that, in my professional opinion, the authorities cited in Mr. Altman's briefs are correct, and the arguments Mr. Altman made are correct, while the arguments the RIAA made, and the decisions in the lower court, were incorrect.
Ray Beckerman +5 Insightful
Just wanted to report that the excellent p2pnet.net site, which is the source of the last link in the story, is back online! Welcome, Jon, glad you've put the server problem behind you! All the best.
Ray Beckerman +5 Insightful