This situation, more than any so far, blatantly exposes the true motives of the RIAA. They never intended for any of these cases to actually go to trial. The whole effort is a shakedown, a scare tactic to quickly extort some cash through intimidation and fear and hopefully provide a deterrent to others not to infringe. If they wanted to, they could build more solid cases with more convincing evidence, but that would take far more time, effort, and expense than they are willing to put into it. Believe it or not, their legal eagles are probably involved in far weightier and more important matters than suing a handful of file sharers. To build a case that will hold up in court for each and every one of these people would be extremely cost-ineffective.
To me, this is very much like credit card companies or other creditors who threaten to sue for collection of very small debts. They don't want to actually go to court to get that couple of thousand bucks you owe -- they know that the expenses of doing so would far outweigh the debt. (And getting a judgement is one thing -- actually collecting the money is another.) They merely hope that having a deputy show up at your front door with some scary looking legal papers in hand will be intimidating enough to motivate you to somehow scrape up some dough to settle the case. Exactly. They never expect anyone to fight back, and they never expect a judge to take a critical look at their fake work product. They are in shock that a judge actually read their boilerplate complaint and realized what it was.
Here the judge was unable to find that the plaintiff had anything meriting any kind of hearing or trial. (Which probably gives the defendant good standing to file a counter suit, if they have not already done so.) This was a default judgment case.
Ms. Rodriguez probably doesn't even know she's been sued.
I think a more likely explanation is that you're simply not privy to their actual strategy. Just because you don't understand it doesn't mean it doesn't make sense.
Consider the evidence. The RIAA/MPAA have access to the finest legal minds money can buy, and have spent years of time and millions of dollars on this issue. You are likely not a lawyer, and likely have not spent years or any money at all on this issue. Is it more likely that you, in your brilliance, have seen something they have not, or is it more likely that you just don't know what they're doing? Clearly, it must serve some purpose which they deem worthy of the effort spent on this project. Assume they are fools at your own peril.
I have nothing against your personally, but many people share your view. It assumes that the RIAA is run by idiots, and this is unlikely. I think the RIAA/MPAA need to be destroyed, but we will almost certainly fail in this task if we continue to underestimate their intelligence. Conceptually it's helpful to seperate the record companies themselves from the lawyers.
The lawyers here are in the business of making money by doing legal work; the more hours they put in, the more they get paid. Clearly, the lawyers are -- from a business standpoint -- pretty smart. They are getting paid a lot for accomplishing nothing, and for actually causing their clients more harm than good.
The record companies, on the other hand, are in the business of selling music, building brands, creating goodwill among customers, bringing their product out through new technologies, and they're supposed to bring in more money than they spend. Clearly, the record companies are -- from a business standpoint -- pretty dumb.
The lawyers are smart businessmen; the record companies are, at least for the moment, being run by dumb businessmen.
As to having "access to the finest legal minds money can buy", yes they have "access" to the finest legal minds. But if you think they have the "finest legal minds" working with them..... as someone who has worked with and against some of the finest legal minds in our country, I beg to differ with you there. The "finest legal minds" would not even stoop to do the kind of garbage work these folks are doing.
BTW, Thanks for not only the work you do in this field (as Eivind said), but also a hearty thanks for you spending time on/. giving us your professional insight. It does make a difference to those of us that actually pay attention to this crap. (not to dis you, but this whole MPAA/RIAA extravaganza is crap a lot of the time-but not all)
Having worked in NYC, and having friends in Watertown, NY, I would not insult you inadvertently by abbreviating your UID as NYCLawyer!...instead I will use NY Country Lawyer if I feel the need to abbreviate.
Lawyers have a bad rep on/. , but you are (at least to me) the exception to the/. rule, and a credit to your profession.
I've kept track of your posts over the past several years here, and feel good about the fact that you are on *our* side. Thanks for your kind words, rts.
I notice a couple of people have asked me how can the RIAA lose money on these cases. I was referring to the gang of four that the RIAA represents, not the RIAA itself, when I referred to the losses on this litigation campaign.
The judge gave the plaintiffs 30 days to redo the complaint, but considering that it took them two years to come up with this abomination there is a good chance that they will let this case go. There is another reason to not refile - the judge made it known that he does not genuflect in front of the big business. Sorry to rain on your parade, tftp, but
1. they filed an amended complaint
2. Judge Brewster is retiring, and the case is being reassigned to another judge.
Perhaps you can explain why they aren't using (and I hear dropping) the "made available" argument. I have a selfish interest as the Canada's Parliament keeps suggesting they will pass legislation implementing the "make available" sections of WIPO. BTW, really, thank you for these articles and posts. I always read NewYorkCountrylawyer posts/articles first! You're good.
I guess you read Canada's own p2pnet.net by Jon Newton.
Actually, I can only speculate what is going on in RIAA-land.
All I know is that, in the wake of the Interscope v. Rodriguez decision, which forced them to come up with an amended complaint, they filed an amended complaint which totally omitted the "making available" theory.
I'll be doing a post on the possible implications of this, but as to their reason, my guess is they did it because
1. they know that it's an invalid argument, having no basis in the statute, in caselaw, or in legal scholarship, and
Ah, cool, I'm glad to hear that. Thanks! (And thanks for the work you do around this; even though it isn't in my country, it is appreciated.) Thanks for your kind words, Eivind.
I hope your country remains free of this plague, but I will tell you it's an international thing.... they're certainly persecuting people throughout Europe, except for the Netherlands, where the courts astutely saw through their scam from the outset.
It's not clear that it is unprofitable. There's only a few boilerplate letters per "lawsuit", and most are settled at $3000 or so. That's a heck of a lot of money for a mailing few letters. Actually, Eivind,
-only about 20% of the cases result in settlements, and
the RIAA is losing millions of dollars on the litigations.
They make money on quick settlements; they lose money on default judgments; they lose a lot of money on cases that litigate for awhile and then settle; and they lose a fortune on cases where the defendant fights back.
I wouldn't get too enthusiastic about this being a way out from under these lawsuits. It's a good win, but it's on very technical grounds and easy for the RIAA to deal with if they have even a shred of a tenuous case. With all due respect, Todd, on this one you are dead wrong. The reason the RIAA hasn't drafted better pleadings isn't because their lawyers don't have enough competence to draft a pleading.... it's because they don't have any evidence that the defendant infringed their copyrights. This case goes to the very core of what is wrong with the RIAA's whole campaign. And this decision may well be the beginning of the end.
"Plaintiffs have presented no facts." This is exactly right, and can likely be far more broadly applied than just this case. I think the best argument most folks have is that it is very hard to tie an IP address to a specific user. And they think that just because they provide a screenshot with a list of songs on it that that is damning evidence. Hooray for this judge who has seen through the rhetoric. You've hit it right on the head, Bonewalker. The Emperor wears no clothes. And Judge Brewster had the courage to make the call.
Yes. I agree with you for the most part. It is definitely a good thing. Its not like a jury verdict against them will bar any suits in the future, but it might make them more leery of bringing these half-assed suits. Just the idea that they could lose and give defense attorney's a guide to winning these suits could be enough to dissuade most of their fishing expeditions. Its just that the idea that a jury verdict against them will somehow mean that the RIAA can no longer sue filesharers is ludicrous. And from a legal standpoint, it won't accomplish much.
As for collateral-estoppel, I'm not sure how useful that would be. I guess if they always sued based on the same songs being shared then that would work. But after trial, they could register the songs and then bring suit against people sharing the properly registered titles after the the registration date. It would only help those who are already being sued for sharing the same exact songs prior to the registration date. But if different songs are at issue, collateral estoppel won't prevent them from arguing that they were properly registered.
As for Noerr-Pennington, I know the anti-trust aspects of the case but am not familiar with the exceptions to it, or how the RIAA is trying to use it, so I won't comment on that. They use the same investigator in all the cases. They use the same expert witness in all the cases. They use the same software and hardware in all the cases. They operate all the cases under the same set of agreements. An adverse factual determination in one of the cases could cripple their litigation campaign.
An adverse determination on one of the copyrights wouldn't just be applicable to p2p cases against consumers, it would be available to any adverse party, and anyone who wants to infringe on it. And not all defects in title are curable.
From a tactical standpoint, getting Universal's people up on a stand to walk a jury through a byzantine recording contract to explain just how it is that they own the copyright and are owed a kajillion dollars in damages when the original artist gets a pittance is almost certain to dispose a jury toward the defendant. Except that's not what would happen. The RIAA legal team merely has to describe how, for example, when Mercury Records recorded "Hysteria" they were operating under the parent company Polygram, which was later bought by Seagrams, who then folded Mercury and all its assets into Universal. In short they're going to describe a rather straightforward transfer of property, and not mention the artists at all.
In order for the defendants to actually get in the entire "here's how we screw artists" thing, they're going to have to show that it's at least relevant to the case. Sadly, it's not. Yeah but the work you just described for the RIAA legal team is not "straightforward" at all. It's a complex subject, often littered with mistakes. It would require the plaintiffs to bring in witnesses from each record company. To Duluth, Minnesota.
If the only issue is in dispute is who owns own the copyrights what makes the story worth posting? In a thousand cases P2P how many times will that line of attack be worth pursuing? Hi westlake.
1. It's not the only issue in dispute. The whole case is in dispute. This defendant didn't do any file sharing.
2. The copyright ownership is a great issue to hammer them on. These arrogant vermin happen to be very sloppy about their copyright paperwork, and if they lose on 1 song the verdict could cost them millions of dollars.
Sure -- but it's standard practice to ask for summary judgment on reasonably undisputed facts. Except that this isn't a summary judgment motion! Their chance to make a summary judgment motion expired a while ago, and they had no basis for a summary judgment motion. It's a desparate panicky attempt to find some other way of stalling to avoid the upcoming trial date, and to their way of thinking anything that uses legal fees and causes more hardship to the defendant is a good thing.
The idea that the firm that won the trial on the Exxon Valdez case (Faegre & Benson)http://www.faegre.com/articles/article_751.aspx [faegre.com] is afraid of jury trials is silly. They are just trying to save the judge time, and the client money.M The lawyers aren't afraid. Why would they be? That's how they make a living.
This is wrong. A District Court decision is not binding on any court. No other court is required to follow that ruling. Other court may cite any decision reached by a judge as persuasive, but its not binding. And this only occurs when there is a decision by a judge either via pre-trial rulings or a bench trial.
Juries are only used in Federal District Court. When a jury renders a verdict, there is no decision. Therefore, there is nothing to cite as precedent. On appeal to the Appeals Court for a circuit, that decision is precedent. It is binding only on other district courts in that circuit - all other courts in other circuits are not required to follow that decision. It may be used as persuasive authority outside that circuit, but no court outside the jurisdiction of the appeals court rendering the decision is required to follow it.
Trust me on this - its what I do all day, and often all night long. No one cares what a jury does. It can't be cited. Juries decide facts, not law. Very few courts care what a district court judge says in any decision of law. And unless its 5th, 7th or 2nd Circuit, no other courts will care much about what a Court of Appeals says anyway. Its why things like circuit splits exist. I understand what you're saying, but you have to realize a few things that are different here.
There are 30,000 cases, and counting, all of which are virtually identical. And the whole litigation campaign isn't about any one case for the RIAA. Each case in and of itself is only worth from $5000 to $8000 for the RIAA. The cases are about creating a mass fear of using p2p file sharing, to help the record companies maintain monopoly power on the internet. Now given that as the backdrop, take these 3 things into account.
1. A fact finding against the record companies would -- under collateral estoppel -- be binding against the record companies for all time. E.g., let's say something small and innocuous -- such as a holding that 1 of the 12 songs being sued for, a song by Mariah Carey, was not validly copyrighted -- came down from that jury. It could cost the applicable record company millions. Now let's say the jury comes to a conclusion on something big -- such as the fact that the record companies have been engaged in illegal collusion in restraint of trade. That finding would be binding for all time, and would put the record companies out of business once the rest of the world got wind of it.
2. The events in the RIAA cases are now being publicized worldwide. If a jury came in with a general verdict against the RIAA, it would mean hundreds or thousands of future defendants -- who might otherwise have marched to the slaughter and written out the extortionate settlement payment check -- will now consider fighting back. And it means that some lawyers otherwise reluctant to jump into this fray will be jumping in.
3. The RIAA's primary defense to the copyright misuse counterclaims has been to try to hide behind the Noerr Pennington defense. Noerr Pennington doesn't protect sham lawsuits, which the RIAA lawsuits are. So the more trials they lose the easier it will be for those lawyers making the sham lawsuit argument.
So technically it might not be a "precedent", but in a generic sense it would be a huge "precedent".
they will move to voluntarily dismiss their own case, as they did in Capitol v. Foster, Interscope v. Leadbetter, Priority Records v. Candy Chan, Elektra v. Santangelo, and others. They should not be able to escape paying the attorney fees of the defendant, particularly if the case is dismissed by the judge with prejudice and the defendant should definitely make the case to the judge that the entire action brought by the RIAA was frivolous and deserves to be punished with an award of attorney fees. The RIAA should not be able to jerk people around for no cost other than their own attorney and court filing fees, especially not when their case is frivolous, and moving to dismiss your own action when you feel that the tide is turning against you should definitely be taken as strong evidence of frivolousness (i.e. the burden should be upon the plaintiff to prove that his withdrawal by moving for dismissal of his own case is not frivolous and that should be a heavy burden in order to deter frivolous actions which waste the court's time). I agree with you, but that's their usual strategy. They'll try to avoid the attorneys fees but may not succeed. In Capitol v. Foster they dismissed their own case, but the judge slammed them for $68,685.23 in attorneys fees.
From 34 years of experience in litigation, I don't think I've ever seen a judge say no to someone wanting to withdraw their own case.
I've read what he had to say before, and yes, he's someone to listen to. But moderation is not done on the reputation of the person, but on the post.
Read the comment. It WAS redundant. The guy already had a +1 karma mod for being him, that's all he should get. The post then ought to be modded as redundant. I know that's the first thing I thought when I clicked on the article and saw "Good Article" = +5 Insightful.
But what do I know. I'm new here (and just a caveman) I think it was fair for the moderator to mod me down, since I had nothing exciting to say. I can take it.
I dare say, seeing how this is slashdot, where most commentors don't seem to actually read the story, having a proven-knowledgable-about-the-subject-matter person tell you in a first post that the story is actually good is, indeed, worthy of modding "informative". It is most certainly NOT redundant, or troll, or offtopic, or flamebait. I'd say thank you, Net.... but I'd probably get modded down as being "offtopic".
But the fact is that, when you are metamodding you will only likely see:
"good story by ars technica"
Moded as: redundant.
The comment by itself certainly does not provide any insight and is no interesting. I admit it was an uninteresting comment. I was really just kind of trying to tell people I was going to be reading this thread, and couldn't resist the opportunity to put in the first comment.
But "redundant" is the wrong terminology; if it's the first post it couldn't be redundant.
But if I were the moderator I might have done the same thing -- there are only 4 negative moderation choices, "Troll" "Flamebait" "Redundant" and "Offtopic", and the comment was really none of those.
So I think, given the limited choices, the moderator did the right thing and I do not fault him or her in any way, even if it did hurt my feelings.
Ray Beckerman has the first post on a legal topic and it gets modded down as redundant? It may not be insightful enough to warrant being modded up... but modding an early post by an expert on the subject as redundant is just stupid. Good thing for metamodding.
To make this comment not a gripe in whole, it does seem quite possible that the RIAA could avoid the trial by jury silver bullet in this case, if the defendant was in fact file sharing and they have "good" proof. Not all the defendants are dead, children, or too old to own/know how to use a computer.
Still, the writing is on the wall. They won't get away with extortion forever. Thanks, Cowclops. I guess I brought it on myself, though. I was shocked that I happened to go to Slashdot, find a post linking to a story I'd just read last night, and find that the story just went "online". giving me probably the first chance I've had to be the first commenter. Unfortunately, I couldn't think of anything pithy to say, or any important links to throw in, since Eric's Ars Technica story had already linked to my story linking the court documents.... so I jumped in and said the only thing I could think of to say at that time in the morning (I hadn't had breakfast yet)....which was that it was a good story. So I deserved what I got.
Meanwhile, as for the RIAA.... they will NEVER go to a jury trial in any of these cases. The only reason there is a jury trial in civil cases is that there are CONTESTED issues of fact. There is no contested issue of fact that the RIAA will ever win. I would love to see this case get tried and see them get their butts handed to them, but they are cowards and will never go that route. If they can't get "summary adjudication" -- which I predict they can't because I think the judge is much too smart for that -- they will move to voluntarily dismiss their own case, as they did in Capitol v. Foster, Interscope v. Leadbetter, Priority Records v. Candy Chan, Elektra v. Santangelo, and others.
Slashdot Mirror
It does, however, have a few highly implausible new lies thrown in.
I'll be posting on that one shortly.
Ms. Rodriguez probably doesn't even know she's been sued.
The lawyers here are in the business of making money by doing legal work; the more hours they put in, the more they get paid. Clearly, the lawyers are -- from a business standpoint -- pretty smart. They are getting paid a lot for accomplishing nothing, and for actually causing their clients more harm than good.
The record companies, on the other hand, are in the business of selling music, building brands, creating goodwill among customers, bringing their product out through new technologies, and they're supposed to bring in more money than they spend. Clearly, the record companies are -- from a business standpoint -- pretty dumb.
The lawyers are smart businessmen; the record companies are, at least for the moment, being run by dumb businessmen.
As to having "access to the finest legal minds money can buy", yes they have "access" to the finest legal minds. But if you think they have the "finest legal minds" working with them..... as someone who has worked with and against some of the finest legal minds in our country, I beg to differ with you there. The "finest legal minds" would not even stoop to do the kind of garbage work these folks are doing.
I notice a couple of people have asked me how can the RIAA lose money on these cases. I was referring to the gang of four that the RIAA represents, not the RIAA itself, when I referred to the losses on this litigation campaign.
1. they filed an amended complaint
2. Judge Brewster is retiring, and the case is being reassigned to another judge.
I guess you read Canada's own p2pnet.net by Jon Newton.
Actually, I can only speculate what is going on in RIAA-land.
All I know is that, in the wake of the Interscope v. Rodriguez decision, which forced them to come up with an amended complaint, they filed an amended complaint which totally omitted the "making available" theory.
I'll be doing a post on the possible implications of this, but as to their reason, my guess is they did it because
1. they know that it's an invalid argument, having no basis in the statute, in caselaw, or in legal scholarship, and
2. the Bell Atlantic v. Twombly decision gives them a way to back down gracefully.
I hope your country remains free of this plague, but I will tell you it's an international thing.... they're certainly persecuting people throughout Europe, except for the Netherlands, where the courts astutely saw through their scam from the outset.
-only about 20% of the cases result in settlements, and
the RIAA is losing millions of dollars on the litigations.
They make money on quick settlements; they lose money on default judgments; they lose a lot of money on cases that litigate for awhile and then settle; and they lose a fortune on cases where the defendant fights back.
These cases do not have to do with downloading. The RIAA does not know of any downloading.
An adverse determination on one of the copyrights wouldn't just be applicable to p2p cases against consumers, it would be available to any adverse party, and anyone who wants to infringe on it. And not all defects in title are curable.
1. It's not the only issue in dispute. The whole case is in dispute. This defendant didn't do any file sharing.
2. The copyright ownership is a great issue to hammer them on. These arrogant vermin happen to be very sloppy about their copyright paperwork, and if they lose on 1 song the verdict could cost them millions of dollars.
The RIAA is afraid because they will lose.
There are 30,000 cases, and counting, all of which are virtually identical. And the whole litigation campaign isn't about any one case for the RIAA. Each case in and of itself is only worth from $5000 to $8000 for the RIAA. The cases are about creating a mass fear of using p2p file sharing, to help the record companies maintain monopoly power on the internet. Now given that as the backdrop, take these 3 things into account.
1. A fact finding against the record companies would -- under collateral estoppel -- be binding against the record companies for all time. E.g., let's say something small and innocuous -- such as a holding that 1 of the 12 songs being sued for, a song by Mariah Carey, was not validly copyrighted -- came down from that jury. It could cost the applicable record company millions. Now let's say the jury comes to a conclusion on something big -- such as the fact that the record companies have been engaged in illegal collusion in restraint of trade. That finding would be binding for all time, and would put the record companies out of business once the rest of the world got wind of it.
2. The events in the RIAA cases are now being publicized worldwide. If a jury came in with a general verdict against the RIAA, it would mean hundreds or thousands of future defendants -- who might otherwise have marched to the slaughter and written out the extortionate settlement payment check -- will now consider fighting back. And it means that some lawyers otherwise reluctant to jump into this fray will be jumping in.
3. The RIAA's primary defense to the copyright misuse counterclaims has been to try to hide behind the Noerr Pennington defense. Noerr Pennington doesn't protect sham lawsuits, which the RIAA lawsuits are. So the more trials they lose the easier it will be for those lawyers making the sham lawsuit argument.
So technically it might not be a "precedent", but in a generic sense it would be a huge "precedent".
From 34 years of experience in litigation, I don't think I've ever seen a judge say no to someone wanting to withdraw their own case.
But "redundant" is the wrong terminology; if it's the first post it couldn't be redundant.
But if I were the moderator I might have done the same thing -- there are only 4 negative moderation choices, "Troll" "Flamebait" "Redundant" and "Offtopic", and the comment was really none of those.
So I think, given the limited choices, the moderator did the right thing and I do not fault him or her in any way, even if it did hurt my feelings.
Good story by Ars Technica.