Methinks they should base the attorney's fees awarded on what the plaintiffs spent on attorney and court costs. I'm sure the defendant would have been happy to spend more (yes, she won, but she obviously couldn't have known that at the onset), and the plaintiffs have clearly indicated what they believe the case was worth to try and work through the courts... I agree with you. Certainly, if the RIAA makes the mistake of challenging the reasonableness of the legal fees incurred, the Court will find the RIAA's own fees to be highly relevant. See, e.g. March 15, 2007, Order and Decision in Capitol v. Foster.
Actually, this "court" doesn't set any precedent at all. Magistrate "judges" aren't actually judges: they're Article II employees, created by Congress, who serve at the whim of actual judges, i.e. Article III Judges.
Magistrate Judges cannot actually do anything: their entire power comes from their parent district court's approval. 1. They certainly are judges. They are not life tenure judges, but they are judges.
2. They do not serve at anybody's "whim".
3. Magistrate decisions are ctied all the time.
4. There are many instances in which they have binding authority in the matter before them.
5. As the underlying articlemakes perfectly clear, this was not a binding authority, but awaits approval by the District Judge.
6. I'm not saying it doesn't happen, but in 34 years of working in the litigation field I cannot recall ever having seen a District Judge reject the Magistrate Judge's findings. Usually Magistrate's "recommendations" -- like this 15-page decision -- are extremely thorough.
Lower court decisions, such as this one, do not set precendents in any court other than their own. 1. That is an overly simplistic view. Yes if there is an appellate decision in one circuit that is binding authority over all district court decisions within that circuit, and it is usually the only absolutely binding authority, other than Supreme Court decisions, on each district court within that circuit.
2. But it is very very rare that any case is ever determined on the basis of an absolutely binding higher court authority. Almost invariably, where there is such authority available, the attorneys have figured that out long ago and there is no litigation to "decide".
3. Most briefs that are submitted cite plenty of non-binding judicial authorities, and even where they are citing binding higher authority, it is usually based on vastly different sets of facts.
4. There are numerous issues in the RIAA cases that will be decided on the basis of the fact that the RIAA has both brought, and pressed, numerous frivolous cases, with no evidence that the defendant committed a copyright infringement, just as was done in the Andersen case. And in those cases it continues to try to extort a "settlement" from the defendant even though it knows it has no case against the defendant. And in those cases where the defendant hangs tough, and is willing to see the case through to its conclusion and a jury trial.... the RIAA drops the case, as it did here. See, e.g., Capitol v. Foster, Elektra v. Santangelo, and Elektra v. Wilke. This recurring phenomenon will be relevant to future attorneys fees decisions, to possible sanctions motions against the record companies and their attorneys, to the record companies' claims of a "Noerr Pennington" defense which is not applicable to "sham" litigations, to claims of copyright misuse, and numerous other issues, in all district courts across the country, and will be cited by appellate courts when these cases finally do get to the appellate courts -- an event the RIAA is trying to avoid.
So yes. This judge's recognition of the RIAA's tactics is a very important precedent.
Although I shouldn't respond to you - I will. This is nothing about Americans not paying their way. This is about cases being brought to court with inadequate evidence, or simply no significant evidence at all, in a hope that the case will either be settled by the defendants simply to avoid the expense of the case - but not as an admission of their guilt - or as a way of frightening others. If they had adequate evidence then the case should be in court, but they haven't. Well you're only saying that because you actually RTFA, as opposed to the ignoramus -- probably in the employ of the RIAA -- to whom you were responding.
As a recent grad from a major university in Boston, I can attest that universities are not charged with protecting or providing legal assistance for their students. Yes but they should not be jeopardizing and destroying their students' due process rights, either, as many of them are doing. This is what they should be, and in my view are legally obligated to be, doing.
Now if only our Comp. Sci. department could work on ways to protect UMass students from the MAFIAA. Like the Chairman of the Computer Science Department at Boston University going to bat for the BU students.
The RIAA are cowards. The problem is that university administrations by and large are bigger cowards still, hence they act too often as RIAA lapdogs.
The RIAA's growing college problem is that at least 4 groups of students at different universities are fighting back, and creating a info-store of litigation documents that can become a roadmap into defending against future suits. If everyone fought back against the invasions of privacy, and the lack of true evidence at the time the suits are filed, the RIAA couldn't handle the litigation load! Make that five. NC State students just jumped into the fray.
Bullies won't go after you if they are afraid that there's a chance of getting their nose bloodied. That is exactly what this is about. They don't like picking on people who can fight back.
Duh! Everyone knows this. It is just that most people have second thoughts when they are facing the dripping fang vampire all alone. Harvard just let the students know they would not be alone. The other schools are willing to throw the students under a bus. Not surprising, really... One interesting note on that point is that the Chairman of the Computer Science Department at Boston University is acting as an expert witness on behalf of the students.
...And the fact that one of the defendants was dead, or a grandmother, or a single mother of three is also meaningless as far as the law is concerned. I can understand being a grandmother or a single mother of three being irrelevant to a case, but death? Last I checked, you can't sue a dead person, and if my reading of the constitution is right, the family of the decedent is immune to litigation that arose because of said decedent's alleged acts. IANAL. That's ok, the RIAA lawyers ANL (are not lawyers) either.
But if you think the RIAA doesn't pursue dead people, you don't know theseghouls.
Keep in mind that in most cases the RIAA is suing an IP address with no knowledge of the person. How sure is anyone of that? Uh. The RIAA's own expert witness was pretty sure.
I'd guess they have a 95+% accuracy on determining the offending ip.
As for offending computer, I'd put it at 50% and offending person even lower.
The number of wireless access points and NAT devices out there really calls into question their ability to bring a case against an individual.
From my house, I have 8 different wireless access points I can use. I highly doubt that the people using these access points are always using their own. On what basis do you guess that they have 95% accuracy on determining the "offending IP address" (whatever that is)? They themselves have stated that they are getting incorrect information from the ISP's.
The last two sentences of the article have nothing to do with the main point of the story Than why include it? Clearly it's a distraction that has no relevence to the case. Interesting, but highly dishonest, technique, you used there. You deleted the sentence which came after the snippet you quoted. Just in case you want to know why I'm designating you a "foe", it's because you are a foe to reasoned debate and to honest discussion. Had you quoted me correctly people would have seen the answer to your dumb question. This is what I actually wrote:
The last two sentences of the article have nothing to do with the main point of the story, which is defendant's attack on the insufficiency of the RIAA's boilerplate complaint, which is the first such attack of which I am aware since the Interscope decision was handed down. Those last two sentences are merely background to give you a point of reference to which of the RIAA's 30,000 cases this happens to be.
A deceptive person like you might be able to find employment with the RIAA or the RIAA's lawyers. Or perhaps you are already working for them.
I suggest you stick with comments that reach a positive moderation regardless of whether they are friend or foe.
http://en.wikipedia.org/wiki/Groupthink
I've never used friend or foe moderation. Some of the comments criticizing my positions have been painful to read (most of the time because I was wrong having spoken to casually- some of the time because the people were spiteful). 1. One thing I am not capable of, and have never been accused of, is Groupthink.
2. I disagree with you on the moderation question. I don't use other peoples' moderation as a basis for screening comments; that would increase the likelihood of being subjected to Groupthink. I screen on the basis of my own appraisal of a person's demeanor.
3. I do not designate someone as a "foe" because he or she disagrees with me; I love a good argument. I designate someone as a "foe" if I think the person is (a) a shill or troll posing as something else, or (b) the personality type that always has to have the last word and does not have an open mind. And, as I said, I am adding a new category of "foe" -- people who have no heart. I have enough exposure to that kind of person when I'm dealing with the RIAA's lawyers. I don't need to come to Slashdot to spend even more time exposing myself to that sort.
These are exceptional cases with unique details, i don't think that this sort of logic will prevail in the 'standard' cases they are bringing.
One can hope, but don't get too exited. Wrong, these are not exceptional cases. All the cases are basically the same. All built on a foundation of hot air.
Thank you very much for the clarification. I hope I am not "foe'd" yet, so I can clarify what I was trying to say. I said I haven't "foe'd" people for heartlessness in the past, that I'm just going to do it going forward.
1. I'm not a PR person, I'm a lawyer.
2. I'm a simple man.
3. The article is about the RIAA's standard complaint -- which it has used in 30,000 cases, mostly uncontested -- being insufficient.
4. Ms. Schwartz's MS is not relevant to that issue, so it is in my view "offtopic".
5. Ms. Schwartz's MS is relevant to the brutality and immorality and moral impoverishment of the freaks and ghouls pursuing her with their frivolous litigation, which is likewise "offtopic".
Those of you who are suggesting that the focus of the article is the defendant's Multiple Sclerosis haven't read the article very carefully. The mention to MS is in the very last sentence.
The last two sentences of the article have nothing to do with the main point of the story, which is defendant's attack on the insufficiency of the RIAA's boilerplate complaint, which is the first such attack of which I am aware since the Interscope decision was handed down. Those last two sentences are merely background to give you a point of reference to which of the RIAA's 30,000 cases this happens to be. The next to last sentence describes a lie the RIAA told last year in this case to the Judge -- that, too, has nothing to do with the sufficiency of the RIAA's complaint, but none of you have singled that out or suggested that the article emphasizes that.
So it's baloney to say the author is relying on the defendant's MS for anything. I.e., it's intellectually dishonest to suggest that this article emphasizes the defendant's MS.
******************
Now a digression.
Had I chosen to emphasize her disease, as I might have, I don't see that there would have been anything wrong with that. And to those of you who think it's okay to bring nonsensical litigation like this against children, stroke victims, hurricane victims, MS sufferers, disabled people on welfare, and others.... to you I can only say that your value system is not unlike that of my opponents, who likewise see nothing wrong with what they are doing.
As I have previously mentioned, I use the "friends" and "foes" feature in Slashdot for the purpose of managing my reading load. Although I haven't in the past, going forward I am going to mark as a "foe" -- and therefore be spared reading the comments of -- any user ID who says that it is irrelevant that the defendant is disabled, or impoverished, or a child, or one of the other categories of disadvantaged and/or defenseless victims. Anyone who feels that way is not my kind of people.
Stress accelerate[s] the development of this disease.
But of course insensitive clods like you don't care about quality of life. Thank you, bidule. Comforted to see a little humanity here. Yes it is absolutely true that stress has a very bad effect on MS, and in this case her brain lesions and other problems have been exacerbated by the litigation.
Meanwhile, this is a person who never even heard of, let alone participated in, file sharing, let alone used file sharing to infringe plaintiffs' copyrights.
"Ms. Schwartz suffers from Multiple Sclerosis, but the RIAA has pressed the case against her." Does anyone else get tired of all the "Joe Schmoe is 72 years old, has a goiter and an infected big toenail, but the RIAA still presses on!" sensationalism?
It seems as if every defendant in these cases has to be painted as a victim not only of the RIAA, but life itself. How about focusing on the fact that the RIAA has no proof, or legal grounds, and leave it at that! I've got a better idea.
How about focusing on both?
Both the fact that they have no case, and the fact that they inflict their frivolous cases on the most helpless and most defenseless people in our society.
Although it may be true that Interscope v. Rodriguez may be valid in the jurisdiction for which it was issued, there's no obligation upon any other jurisdiction to follow it..... Except that the Interscope decision is based on Bell Atlantic v. Twombly, which is a decision of the United States Supreme Court, and binding on every court. And it is clear that the RIAA's standard complaint does not satisfy the 'plausibility' standard of Twombly.
If you cannot explain a term to someone who does not understand that term, then you yourself don't understand that term (and all of its dependencies until you reach a level that person does understand). In this case, I'm fairly certain the judge knows both the difference between a computer and a person, and the difference between distribution and potential distribution. If I understand you correctly, what you're saying is that they're simplifying to make up for the judge's lack of technical understanding. That's incorrect, however. Given the ease with which the correct simplification could be made, provided that the RIAA lawyers or their technical advisors do understand the concepts of an IP address and uploading and difference between a person and computer and the meaning of the word potential, the only remaining possible purpose of their simplification is not to inform, but to mislead the judge. It's clear that the only purpose is to mislead the judge. It's not a simplification to say you detected "an individual" when you didn't. It's a lie.
Slashdot Mirror
I don't think it does. The RIAA is doing what it does for no reason other than money.
2. They do not serve at anybody's "whim".
3. Magistrate decisions are ctied all the time.
4. There are many instances in which they have binding authority in the matter before them.
5. As the underlying article makes perfectly clear, this was not a binding authority, but awaits approval by the District Judge.
6. I'm not saying it doesn't happen, but in 34 years of working in the litigation field I cannot recall ever having seen a District Judge reject the Magistrate Judge's findings. Usually Magistrate's "recommendations" -- like this 15-page decision -- are extremely thorough.
2. But it is very very rare that any case is ever determined on the basis of an absolutely binding higher court authority. Almost invariably, where there is such authority available, the attorneys have figured that out long ago and there is no litigation to "decide".
3. Most briefs that are submitted cite plenty of non-binding judicial authorities, and even where they are citing binding higher authority, it is usually based on vastly different sets of facts.
4. There are numerous issues in the RIAA cases that will be decided on the basis of the fact that the RIAA has both brought, and pressed, numerous frivolous cases, with no evidence that the defendant committed a copyright infringement, just as was done in the Andersen case. And in those cases it continues to try to extort a "settlement" from the defendant even though it knows it has no case against the defendant. And in those cases where the defendant hangs tough, and is willing to see the case through to its conclusion and a jury trial.... the RIAA drops the case, as it did here. See, e.g., Capitol v. Foster, Elektra v. Santangelo, and Elektra v. Wilke. This recurring phenomenon will be relevant to future attorneys fees decisions, to possible sanctions motions against the record companies and their attorneys, to the record companies' claims of a "Noerr Pennington" defense which is not applicable to "sham" litigations, to claims of copyright misuse, and numerous other issues, in all district courts across the country, and will be cited by appellate courts when these cases finally do get to the appellate courts -- an event the RIAA is trying to avoid.
So yes. This judge's recognition of the RIAA's tactics is a very important precedent.
...And the fact that one of the defendants was dead, or a grandmother, or a single mother of three is also meaningless as far as the law is concerned. I can understand being a grandmother or a single mother of three being irrelevant to a case, but death? Last I checked, you can't sue a dead person, and if my reading of the constitution is right, the family of the decedent is immune to litigation that arose because of said decedent's alleged acts. IANAL. That's ok, the RIAA lawyers ANL (are not lawyers) either.But if you think the RIAA doesn't pursue dead people, you don't know these ghouls.
2. I disagree with you on the moderation question. I don't use other peoples' moderation as a basis for screening comments; that would increase the likelihood of being subjected to Groupthink. I screen on the basis of my own appraisal of a person's demeanor.
3. I do not designate someone as a "foe" because he or she disagrees with me; I love a good argument. I designate someone as a "foe" if I think the person is (a) a shill or troll posing as something else, or (b) the personality type that always has to have the last word and does not have an open mind. And, as I said, I am adding a new category of "foe" -- people who have no heart. I have enough exposure to that kind of person when I'm dealing with the RIAA's lawyers. I don't need to come to Slashdot to spend even more time exposing myself to that sort.
1. I'm not a PR person, I'm a lawyer.
2. I'm a simple man.
3. The article is about the RIAA's standard complaint -- which it has used in 30,000 cases, mostly uncontested -- being insufficient.
4. Ms. Schwartz's MS is not relevant to that issue, so it is in my view "offtopic".
5. Ms. Schwartz's MS is relevant to the brutality and immorality and moral impoverishment of the freaks and ghouls pursuing her with their frivolous litigation, which is likewise "offtopic".
Those of you who are suggesting that the focus of the article is the defendant's Multiple Sclerosis haven't read the article very carefully. The mention to MS is in the very last sentence.
The last two sentences of the article have nothing to do with the main point of the story, which is defendant's attack on the insufficiency of the RIAA's boilerplate complaint, which is the first such attack of which I am aware since the Interscope decision was handed down. Those last two sentences are merely background to give you a point of reference to which of the RIAA's 30,000 cases this happens to be. The next to last sentence describes a lie the RIAA told last year in this case to the Judge -- that, too, has nothing to do with the sufficiency of the RIAA's complaint, but none of you have singled that out or suggested that the article emphasizes that.
So it's baloney to say the author is relying on the defendant's MS for anything. I.e., it's intellectually dishonest to suggest that this article emphasizes the defendant's MS.
******************
Now a digression.
Had I chosen to emphasize her disease, as I might have, I don't see that there would have been anything wrong with that. And to those of you who think it's okay to bring nonsensical litigation like this against children, stroke victims, hurricane victims, MS sufferers, disabled people on welfare, and others.... to you I can only say that your value system is not unlike that of my opponents, who likewise see nothing wrong with what they are doing.
As I have previously mentioned, I use the "friends" and "foes" feature in Slashdot for the purpose of managing my reading load. Although I haven't in the past, going forward I am going to mark as a "foe" -- and therefore be spared reading the comments of -- any user ID who says that it is irrelevant that the defendant is disabled, or impoverished, or a child, or one of the other categories of disadvantaged and/or defenseless victims. Anyone who feels that way is not my kind of people.
Meanwhile, this is a person who never even heard of, let alone participated in, file sharing, let alone used file sharing to infringe plaintiffs' copyrights.
How about focusing on both?
Both the fact that they have no case, and the fact that they inflict their frivolous cases on the most helpless and most defenseless people in our society.
If he grants the motion, then he's still a nice judge.