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Papers Sealed In Class Action Against RIAA
NewYorkCountryLawyer writes "In Andersen v. Atlantic Recording, the Oregon class action brought by Tanya Anderson against the RIAA, MediaSentry, and others, the plaintiff's motion for class action certification has been sealed by the Court. Also, the Court conducted an 'in camera' conference with the defendants' attorneys — meaning the Judge met with the defendants' attorneys alone — in connection with a discovery motion, and the record of that conference has been sealed as well. The RIAA has made a motion to dismiss the class action; that has not been sealed. In case you're wondering what's going on here, so am I."
Ray Beckerman (NYCL) has graciously hosted a fully illustrated PDF of the plaintiff's brief for class action certification (the documents in question) on his site. Now, I'm not a lawyer but that's got a whole lot of lengthy legalese that no human could understand.
The documents are sealed in a plastic box, but you can buy them for only $15.95 at your local record store.
If you copy them, we'll sue you. And there's no refunds if you don't like the documents.
There's no -1 for "I don't get it."
otherwise one probably has to assume that the proceedings touch 'national security'.
CC.
TaijiQuan (Huang, 5 loosenings)
Oh fuck. It was bad enough when we had rank-and-file nerds asking for legal advice on slashdot.
Now we have a 'house lawyer', so to speak, and he's asking for legal information on slashdot.
The apocalypse is upon us! Run for the hills!*
IANAL. Even if I were a lawyer, I'd not be YOUR lawyer. This is not legal advice. By reading this footnote, you are agreeing to not hold Red Flayer liable for any damages sustained while running for the hills. For that matter, please walk, don't run -- and make sure to look both ways before crossing the street.
"Trolls they were, but filled with the evil will of their master: a fell race..." -- J.R.R. Tolkien on Olog-hai
But are there any plausible and non-nefarious explanations for this turn of events? I mean, is meeting with the defendant's attorneys privately, sealing the record of what went on there, and then sealing the plaintiff's motion a relatively normal thing? Or is it as weird and skeezy as it sounds?
Okay, the judge and the defense have met in private...? I get the impression that this is highly irregular. Is it improper enough to have this judge thrown off the case and reprimanded?
Why are they allowed to get all aspects of a court hearing "sealed"? This makes no sense, I realize they don't want the records made public, but why is the court going along with it?
I work for the Department of Redundancy Department.
I'm not a legal expert. Does sealed mean that during the course of the proceedings they won't be disclosed? Or does sealed mean that they will never be revealed, even after this is out of the courts?
maybe there's a clue in that the defendants want the case dismissed based on the Noerr Pennington doctrine.
RIAA Lawyer: Your Honor, we need to disclose our trade secrets to you, in private.
Judge: Okay, step into my chambers. Now, what's this big secret of yours?
RIAA Lawyer: (points)
Judge: Well that looks like a briefcase full of hundreds, a kilo of Peruvian Marching Powder, and a coupon book for 'Escorts R Us.'
RIAA Lawyer: Sssshhh! That's a trade secret!
- None can love freedom heartily, but good men; the rest love not freedom, but license. -- John Milton
From the linked pdf on NYCL's blog, it appears that the reasons cited for dismissing the case amount to a twisted interpretation of the Noerr Pennington doctrine roughly translated to:
1. IP addresses are fair game for probable cause because a previous case involving DirecTV successfully used the Noerr Pennington directive to challenge class action against people supposedly infringing on their signals by buying smart card readers.
2. Media Sentry not holding state investigative licenses is irrelevant because the information they gathered was publicly available.
3. That allegations of the impropriety of accessing publicly shared folders has no basis in law.
4. That any objection to the numerous 'Doe suites filed is countered by the successfulness of such proceedings. Also that such proceedings are not against the law.
5. That the case against Ms Andersen herself was not "objectively baseless" despite failure to link Ms Andersen to the accused infringing Kazaa user name due to flaws in the investigative process.
- IANAL
Still, pretty weak arguments imho. Certainly shouldn't be enough to dismiss the case.
As to the whole sealed shenanigans.. I guess we have to wait and see.
The **AA stumbled upon some sort of blackmail content (pictures or whatever) involving the judge and wanted to meet with him privately to give him the chance to toss the case before revealing said material. Hence the judge's willingness to seal everything going on. I would laugh at myself for the idea but am not sure its much of a joke these days....
Figured it out? With a name like BJ_Covert_Action, I wouldn't be surprised if you were part of it!
Forget thrust, drag, lift and weight. Airplanes fly because of money.
Are you by chance a Vogon?
IANAL, but I do read a heck of a lot.
My guess is the Noerr-Pennington doctrine. I expect that Anderson tried to define "all recipients of demand letters" as a class, and RIAA argued that that can not constitute a class because it has immunity under Noerr-Pennington, per Sosa v. DIRECTV, Inc. 1684 (2006):
http://www.ca9.uscourts.gov/datastore/opinions/2006/02/14/0455036.pdf
Probably, the specific interpretation of BE&K Construction Co. v. NLRB, 536 U.S. 516, 525 (2002). The argument would be that if the lawsuit was able to impose RICO liability on RIAA for sending the demand letter, then it would burden RIAA's ability to settle legal claims short of filing a lawsuit. RICO specifically provides for private enforcement and treble damages.
This is all predicated on the demand letters being specifically for no more than treble actual damages, so it may not apply if RIAA was asking for statutory damages (which they were). There is also some question as to whether the demand letters were objectively baseless and thus fall within the doctrine's sham exception. So I see at least two ways to fight a dismissal on direct.
-- Terry
I similar set of events occurred during the big tobacco lawsuits. Some testimony was sealed and later opened, some remains sealed. Some of the former was from the tobacco comany researcher Dr. Jeffery Wigand. His story is the basis for the movie "The Insider". NYT has an archive of articles from throughout the course of the suits at: http://topics.nytimes.com/top/reference/timestopics/people/w/jeffrey_wigand/index.html
Some of the latter was from another tobacco company researcher named Pele, who worked out the biochemical mechanism of nicotine addiction. After his employer quashed news of the results, he leaked the details to a news magazine (either Time or Newsweek, I forget which), Subsequently all his testimony and work was sealed, he was fired and prevented from working in that field any more.
After these and similar testimonies that were greatly damaging to the companies' claims, the lawsuits suddenly sped up and concluded with the companies paying out US$280Bn. It was speculated that had the testimony been public and the suits based on the claims therein (ie. they themselves had the proof of nicotine addiction, something they'd denied existed), the companies would have been fined a great deal more, or possibly forced to sell out.
We can only hope that what's been sealed and discussed is so damaging to the RIAA that the judge is telling them to defend against it would require perjury, and he's giving them a chance to back off, settle before it gets a lot worse for them, and go lick their wounds.
One thing you can be sure of, and happened in the tobacco suits, if the companies lose and are fined, the amount they pay out will be made up by price increases. All buyers will end up paying the fine. And once they've covered the cost of the fines, they'll leave the price where it was moved up to, and rake in even more.
"I may be synthetic, but I'm not stupid." -- Bishop 341-B
There are two possibilities, that I can think of to posit:
1. The Judge has serious concerns with the RIAA's behaviour, has advised them in chambers that such behaviour won't work with her (i.e. privately, so as to not embarrass them or make them defensive, or lock them into a particular position), and she has given them some lee-way to govern themselves accordingly;
2. The Judge is not mindful of the RIAA's pattern of behaviour, and is having the wool pulled over her eyes.
I'm doubtful of #2. It is typically the tendency of the bench to assign higher calibre Judges to class actions. As well, the risk of some form of judicial review or appeal on the basis of bias or impropriety given ex parte in camera discussions (not to mention the appearance of impropriety among the Judge's peers), strikes me as something the Judge would be mindful of.
Only two types of experiences come to mind where Judges take counsel ex parte into chambers. One is getting statements without influence (i.e. getting statements of a child where potentially dominating or threatening people are otherwise present), which isn't the case here (is the RIAA showing up in Court to watch their lawyers?). The other is the Judge is talking at counsel.
Knowing the grounds for the RIAA's motion to dismiss the action would lend assistance to any analysis. I'd imagine they're claiming that the proposed representative plaintiffs are unsuitable, there's a lack of jurisdiction, there is a preferable procedure for resolving the dispute, there's no cause of action, the class can't be identified, or the issues aren't common to all members of the proposed class. None of these give rise to the need for ex parte discussions.
I'm sure plaintiff's counsel has their heart in their throat, but based on virtually no information whatsoever, I'm hopeful for a positive outcome.
If RIAA discloses their super-secret methods, the terrorists win!
In what way are the RIAA, MPAA not terrorists? All this stuff is supposedly about scaring people into giving them what they want: $$$$$$$$$$$$$
Seriously, this Star Chamber stuff seems like a cause for great concern.(1) What's next the RIAA, MPAA, and BSA get to waterboard defendants? After all, it's supposedly not torture, and it seems like the natural progression of the corporate welfare state, that is a state dedicated solely to welfare of large corporations regardless of the effect on its citizens--at least on the "proles"
(1) Ironically, the original Star Chamber was set up "to ensure the fair enforcement of laws against prominent people, those so powerful that ordinary courts could never convict them of their crimes." Star Chamber. We may expect that the new Star Chambers will be set up for the opposite purpose: to insure the immunity of the powerful and oppress the rest of us. To paraphrase John W. Campbell, power does not corrupt, if it did, God would be the ultimate in corruption; immunity corrupts, and absolute immunity corrupts absolutely. Politicians and corporations are already virtually immune to meaningful sanctions, woe unto us if they are allowed to become absolutely immune.
If you want your life to be different, live it differently.
Is it just me or is the RIAA becoming more and more like Scientology all the time?
Now that we've got the obligatory "is it real" crap out of the way, on to the important question:
How much did the MafiAA pay the judge to seal the records? And why would the transcript of talks held between the judge and MafiAA be sealed, if not that they reveal something that ought to make the now MafiAA-paid judge step down?
I must admit, at first glance, I was concerned since I only knew about recordingindustryvspeople.blogspot.com [blogspot.com], but beckermanlegal.com [beckermanlegal.com] is in TFS, so I would imagine it too is genuine Ray Beckerman
Yes, both are mine. I haven't had any trouble opening the *pdf.
Ray Beckerman +5 Insightful
Moderators -- please bother to check if a link is valid. That may change over time. That initial one has varied today from -1 troll to +5 , but all I see is a one-page pdf that says the doc is sealed. Which the summary already says. Maybe it used to contain the actual sealed document. But it doesn't now. All clicking on it will do is make people feel stupid. Not +5 material. BTW, I use foxit not adobe for pdf reading, in case that matters.
However, an actual copy of the petition appears on ilrweb:
http://www.ilrweb.com/viewILRPDFfull.asp?filename=andersen_atlantic_080314SecondAmendedComplaint
The best reason I can see for the court sealing it is that it lays out the whole case for how the RIAA has been screwing innocent people out of thousands of dollars for years (we knew that), and that the federal courts have been stupid patsies in letting themselves totally be the tools by which this is accomplished (we knew that too). But maybe for the first time a courts sees it clearly enough to be as horribly embarassed as they should be.
No inside knowledge; just cynicism about our "check your conscience at the door, merciful judge just means activist judge, the prosecution can deliberately fake evidence without affecting a jury verdict so no retrial for you, Martha" federal judiciary. Covering its exposed, very ugly, ass.
Wouldn't it be great if the RICO statute allowed for damages against the stupid judges who helped make this "several thousand dollars per innocent person" shakedown possible?
Hide all sigs: Click HELP+Prefs (top), VIEWING (last on right), DISABLE SIGS (3rd on left) and SAVE (hidden at bottom).
The far more interesting question is not "how" but "why". Why is the RIAA so concerned to keep a public trial from being public?
We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
We here on Slashdot may have no love for the RIAA. But in general, defendants shouldn't be forced into exposing sensitive information, like trade secrets or business strategies, as a means to blackmail them into settling.
You mean like the RIAA does in every single one of their cases? Turning over all computer in the house probably with privilege information all over it as well as the only way these defendants have to contact and organize a defense.
Excellent observation, LORAX.
Actually the real reason the RIAA presses for secrecy of its own information in every case is that it seeks to increase the litigation costs for the defendants in other cases. The more information a defendant's lawyer can obtain online, from other cases, the less work he or she has to do in the case at hand.
Ray Beckerman +5 Insightful