I'm just annoyed at NYCL's rude summary comments - "incompetent-apparently they don't teach [competence] at Harvard law school." I don't care if NYCL is the foremost authority on copyright cases, because I still consider it unprofessional. And juvenile. Just like I said in my first post.
I agree. The fact is, the file-sharing cases that actually make it to trial are pretty much loser cases for the defendants. It doesn't matter how competent your lawyer is if the facts are against you. (Actually, and sadly, an incompetent/unethical lawyer who helps make a mess of discovery may provide an edge compared with a competent/ethical lawyer who simply tries to provide the best defense possible).
Would it have made any difference in this case if Tenenbaum's lawyers had objected to the question about liability? Probably not. It was really just a follow-up to questions that showed that yes, he was liable. The judge still could have (and probably would have) removed the question of liability from the table given the evidence against Tenenbaum.
Even if the judge had given the question of liability over to the jury, it seems inconceivable that this jury, which found Tenenbaum liable for much more than the minimum amount, would have found him innocent.
NYCL's commentary regarding the competent of Tenenbaum's counsel is inconsiderate, unnecessary, and unproductive.
>>>Juries that ignore the facts can easily create injustices too.
Yes that's true, but I'd rather see 10 guilty persons go free, than even one innocent person go to jail. Better to exercise caution, otherwise we'll have more cases like the one in Maryland where a guy was jailed for 20+ years for a murder he never committed. (DNA testing proved his blood did not match the killer's blood found at the scene, so he was let go.)
I shouldn't have tacked this at the end of a paragraph, it's too important a point:
Remember, these are civil cases, not criminal cases. Big judgments can be hard to collect and may evaporate in bankruptcy, while a prison sentence is definitely not at stake.
And in a civil case, it's not about guilt versus innocent. It's about the exercise of individual rights.
Pretend that this was a jury that was very sympathetic to file-sharers (this one wasn't, otherwise they would have found him liable for the absolute minimum). If they had refused to find Joel Tenenbaum liable for copyright infringement, it wouldn't have been a finding of innocence. Instead, it would have been a deprivation of the right of the owners of the copyrights to protect their property. Even with recording companies, these owners are real people (although collectively through intermediate organizations).
Given that civil cases are about individuals versus individuals, not individuals versus the state, it is reasonable to disallow jurors from depriving one set of individuals their rights because they find another set of individuals more sympathetic. If the rights being argued are flawed, then the law needs to change, not be ignored.
It's clear that the game is rigged. Here, with the defenses all tossed out before the case even got to the jury. Worldwide, as the Pirate Bay trial with the judge being the next best thing to a card-carrying member of the copyright cartel. All your presence does is legitimize the system by making it look like something other than the RIAA and its allies steamrolling over those without the resources (including paid-off legislators and fellow-traveler judges) to fight them.
File-sharing. A strange game. The only winning move is not to play. How about downloading a song through iTunes?
a judge can eliminate issues for a jury if no reasonable juror could come to anything but one conclusion based on the facts.
That really sucks.
No it doesn't. Jurors are supposed to find the facts, not make them up. In a civil trial, where a fact is determined by preponderance of evidence (i.e., whether it is more likely than not, even by just a little), why is it unfair to restrict jurors to finding facts that can be reasonably disputed?
A judge should not be able to do that, because a jury could decide that the person is guilty, but the law is unjust, and simply nullify the conviction. That's one of the reasons the jury trial was invented - to weaken the power of the State by giving the People an opportunity to "void" wrongful arrests. It's somewhat similar to what the U.S. Supreme Court does, but from the bottom up.
The RIAA, the companies that associate with each other through the RIAA, and the shareholders who own the companies that associate with each other through the RIAA are not the State. The recording companies have not been nationalized, so these cases are ultimately about disputes amongst individuals, not disputes with the sovereign. Remember, these are civil cases, not criminal cases. Big judgments can be hard to collect and may evaporate in bankruptcy, while a prison sentence is definitely not at stake.
I'm not explaining that too well, so just read more here - "Historical examples of nullification include American revolutionaries who refused to convict under English law,[3] juries who refuse to convict due to perceived injustice of a law in general,[4] or the perceived injustice of the way the law is applied in particular cases..." - http://en.wikipedia.org/wiki/Jury_nullification
Don't forget jury nullification by all white juries in the South to acquit white defendants accused of murdering African Americans (see that same Wikipedia article). Juries that ignore the facts can easily create injustices too.
Attorneys have a number of ethical duties, and many of these submissions either contain outright false statements or other distortions of the very same caliber complained against in those very same submissions. . ..
If you're that concerned that he's crossed the line from just spinning to acting unethically (say under Rule 8.4(c) or (d) of the Model Rules of Professional Conduct), then draft a complaint to the New York Bar. If you don't think the case against him is strong enough for that, then it is probably best to argue that the stories are sensationalist rather than arguing that the submitter is unprofessional. Arguing the former is tactful, arguing the latter is personal.
NYCL and a lot of/. posters often seem to attack the lawyers representing recording companies and the executives of those recording companies rather than just their arguments and decisions. Do you really want to be part of the crowd that is quick to attack people and motives?
What's uncalled for is the blind devotion and defense of a local "celebrity" just because he lends his voice to a popular viewpoint.
Blind devotion isn't a good thing. People should think. But blind antithapy isn't a good thing either. If you argue that NYCL is erroneous in an instance, is it fair to assume that you support the RIAA? If someone argues that NYCL is not erroneous in an instance (or that accusations of unprofessionality are too hostile), is it fair to assume that said someone is blindly devoted to NYCL?
In the summary itself, it indicates that their motion was "denied". It wasn't. It was granted in part and denied in part, which is a common outcome. In fact, reviewing the order, you see that they in fact got just about everything they argued for. They didn't get the freebie they put in the proposed order. That's hardly surprising, and it's certainly not a denial of their request.
Sure, I read the motion, the proposed order, the summary, and the actual order. But consider this: if you treat the motion as an omnibus motion consisting of a motion to protect revenues and a motion to protect agreements, then the actual order could be treated as an omnibus order denying the motion to protect revenues and granting the motion to protect agreements. Is the summary misleading? Sure. Does it reach a level of "unprofessional" deception. Maybe, maybe not. Is arguing it going to be persuasive of anything significant? Probably not.
[Original post] The RIAA offered a proposed order that was greater in scope than what they had argued for. Had the judge and her clerks read only the moving papers and then just signed the order, the RIAA would have had that order amended upon discovery of the inconsistency.
[Reply post]They should have vetted it before submitting it to avoid any appearance of deceptive behavior.
[Reply-to-reply post] It very likely was vetted. Proposed orders are just that: proposed. You don't get more than you ask for, and it's not uncommon for litigators to ask for more than they could support in their argument.
Perhaps it should be uncommon. If the argument in the moving papers appears to characterize a proposed order's scope as being small, but the proposed order's scope is large, it looks like the the lawyers were trying to pull something on the court. A lawyer definitely should not deliberately submit a proposed order that, if the judge were to sign off on it without modification, the lawyer would need to have amended. Of course, accidental inconsistencies between arguments and proposed order are more likely when drafting is shared among a team of lawyers.
To put it in perspective: the RIAA submitted a motion in court that incorrectly summarized a proposed protective order while NYCL submitted a story to/. that incorrectly summarized a court order. Neither of these acts looks good, but neither act is really worth wrestling in the mud over.
Moreover, the summary is again biased and sensationalized, part of a pattern that shows increasingly unprofessional conduct on the part of the submitter. The RIAA offered a proposed order that was greater in scope than what they had argued for. Had the judge and her clerks read only the moving papers and then just signed the order, the RIAA would have had that order amended upon discovery of the inconsistency. The RIAA actually got the protective order it had argued for--it just didn't get the overbroad proposal they submitted.
Be nice. NYCL has a viewpoint and he likes to express it loud and clear, but accusations regarding professionality are uncalled for. He's not representing anyone in the case or publishing information that one couldn't get through PACER.
It isn't any use arguing what the RIAA would have done had the judge signed off on their prosed protective order. They should have vetted it before submitting it to avoid any appearance of deceptive behavior. Since they didn't, then they deserve a little nose tweaking.
And no, they did not get everything they wanted. The judge refused to protect the revenue information of the plaintiffs. They did seem to get what they wanted with regards to the non-revenue information.
Slashdot Mirror
I agree. The fact is, the file-sharing cases that actually make it to trial are pretty much loser cases for the defendants. It doesn't matter how competent your lawyer is if the facts are against you. (Actually, and sadly, an incompetent/unethical lawyer who helps make a mess of discovery may provide an edge compared with a competent/ethical lawyer who simply tries to provide the best defense possible).
Would it have made any difference in this case if Tenenbaum's lawyers had objected to the question about liability? Probably not. It was really just a follow-up to questions that showed that yes, he was liable. The judge still could have (and probably would have) removed the question of liability from the table given the evidence against Tenenbaum.
Even if the judge had given the question of liability over to the jury, it seems inconceivable that this jury, which found Tenenbaum liable for much more than the minimum amount, would have found him innocent.
NYCL's commentary regarding the competent of Tenenbaum's counsel is inconsiderate, unnecessary, and unproductive.
I shouldn't have tacked this at the end of a paragraph, it's too important a point:
Remember, these are civil cases, not criminal cases. Big judgments can be hard to collect and may evaporate in bankruptcy, while a prison sentence is definitely not at stake.
And in a civil case, it's not about guilt versus innocent. It's about the exercise of individual rights.
Pretend that this was a jury that was very sympathetic to file-sharers (this one wasn't, otherwise they would have found him liable for the absolute minimum). If they had refused to find Joel Tenenbaum liable for copyright infringement, it wouldn't have been a finding of innocence. Instead, it would have been a deprivation of the right of the owners of the copyrights to protect their property. Even with recording companies, these owners are real people (although collectively through intermediate organizations).
Given that civil cases are about individuals versus individuals, not individuals versus the state, it is reasonable to disallow jurors from depriving one set of individuals their rights because they find another set of individuals more sympathetic. If the rights being argued are flawed, then the law needs to change, not be ignored.
File-sharing. A strange game. The only winning move is not to play. How about downloading a song through iTunes?
No it doesn't. Jurors are supposed to find the facts, not make them up. In a civil trial, where a fact is determined by preponderance of evidence (i.e., whether it is more likely than not, even by just a little), why is it unfair to restrict jurors to finding facts that can be reasonably disputed?
The RIAA, the companies that associate with each other through the RIAA, and the shareholders who own the companies that associate with each other through the RIAA are not the State. The recording companies have not been nationalized, so these cases are ultimately about disputes amongst individuals, not disputes with the sovereign. Remember, these are civil cases, not criminal cases. Big judgments can be hard to collect and may evaporate in bankruptcy, while a prison sentence is definitely not at stake.
Don't forget jury nullification by all white juries in the South to acquit white defendants accused of murdering African Americans (see that same Wikipedia article). Juries that ignore the facts can easily create injustices too.
If you're that concerned that he's crossed the line from just spinning to acting unethically (say under Rule 8.4(c) or (d) of the Model Rules of Professional Conduct), then draft a complaint to the New York Bar. If you don't think the case against him is strong enough for that, then it is probably best to argue that the stories are sensationalist rather than arguing that the submitter is unprofessional. Arguing the former is tactful, arguing the latter is personal.
NYCL and a lot of /. posters often seem to attack the lawyers representing recording companies and the executives of those recording companies rather than just their arguments and decisions. Do you really want to be part of the crowd that is quick to attack people and motives?
Blind devotion isn't a good thing. People should think. But blind antithapy isn't a good thing either. If you argue that NYCL is erroneous in an instance, is it fair to assume that you support the RIAA? If someone argues that NYCL is not erroneous in an instance (or that accusations of unprofessionality are too hostile), is it fair to assume that said someone is blindly devoted to NYCL?
Sure, I read the motion, the proposed order, the summary, and the actual order. But consider this: if you treat the motion as an omnibus motion consisting of a motion to protect revenues and a motion to protect agreements, then the actual order could be treated as an omnibus order denying the motion to protect revenues and granting the motion to protect agreements. Is the summary misleading? Sure. Does it reach a level of "unprofessional" deception. Maybe, maybe not. Is arguing it going to be persuasive of anything significant? Probably not.
Perhaps it should be uncommon. If the argument in the moving papers appears to characterize a proposed order's scope as being small, but the proposed order's scope is large, it looks like the the lawyers were trying to pull something on the court. A lawyer definitely should not deliberately submit a proposed order that, if the judge were to sign off on it without modification, the lawyer would need to have amended. Of course, accidental inconsistencies between arguments and proposed order are more likely when drafting is shared among a team of lawyers.
To put it in perspective: the RIAA submitted a motion in court that incorrectly summarized a proposed protective order while NYCL submitted a story to /. that incorrectly summarized a court order. Neither of these acts looks good, but neither act is really worth wrestling in the mud over.
Be nice. NYCL has a viewpoint and he likes to express it loud and clear, but accusations regarding professionality are uncalled for. He's not representing anyone in the case or publishing information that one couldn't get through PACER.
It isn't any use arguing what the RIAA would have done had the judge signed off on their prosed protective order. They should have vetted it before submitting it to avoid any appearance of deceptive behavior. Since they didn't, then they deserve a little nose tweaking.
And no, they did not get everything they wanted. The judge refused to protect the revenue information of the plaintiffs. They did seem to get what they wanted with regards to the non-revenue information.