Have some judges been incorrectly approving these ex parte subpoenas for the RIAA? Probably most have.
If such subpoenas are presented to colleges and ISPs they should be able to get them vacated on those grounds? The subpoena comes after the order. It's important for the colleges, ISP's, and John Does to fight it before the order is granted. The universities are in a position to force the RIAA's hand on the ex parte nature of the proceedings. See my Open Letter to Colleges and Universities.
I guarantee this is about selective enforcement, and it could just as easily be that they want to determine who has the most money available to pay them off, as much as concerns over someone's lawyer daddy. Obviously, a college kid with no money isn't worth the effort (other than the PR), but if you find some likely candidates and discover their assets you'll be better able to allocate legal resources. In any event, this seems to have become a money-making venture in its own right, and they'll probably want to prequalify their targets to maximize the take. Of course, it could be for some other reason entirely, and you'd have to be an RIAA lawyer to know what that would be. Based on my dealings with them it's the latter....
"some other reason entirely, and you'd have to be an RIAA lawyer to know what that would be" From what I've seen the most likely reason for the stuff the RIAA lawyers do is that it makes the RIAA lawyers money. If I could point to one golden thread that runs through everything, it is
Do whatever takes the most time and costs the most money in legal fees.
I think any judge should look at this stuff extremely carefully due to the ex parte nature of the proceedings; in fact, the more I think about it the more I'm convinced that there might be a legitimate bar grievance against the attorney who filed the motion, because of their failure to fully explain the pertinent statute and their omission of key elements.
I don't know about the bars in Texas, but around here in a non-adversarial proceeding it is the attorney's ethical obligation to inform the tribunal of every aspect of law that will impact their decision, even those aspects that will hurt their argument. I agree with you, nomadic. If I were a judge I would be pounding the RIAA's lawyers for their unethical tactics.
No question he did a good thing for all of us. There are some good judges there but the norm is as bad or worse than the rest of the country. Most of the things that happen in court or Congress on this subject is in the hands of staff because the Lawyers, Judges, and Congresscritters will not try to learn what any of it really means. That makes me cynical and a skeptic. I don't know what the "norm" is. I don't even know what the "norm" is in New York, where I practice, because there are so many judges and I get to appear before only some of the many.
All I know is.... -when something bad happens let's holler about it -when something good happens let's appreciate it and honor the judge for doing his homework, for being fair, for carrying out his or her sacred trust, and for standing up for the dignity of our judicial system.
Actually, I've talked with the head of IT, and was told that the (un)official policy is to ignore any requests from the RIAA that could potentially incriminate students, unless they're in the form of a legal subpoena. It will always be "in the form of a legal subpoena" unless either (a) the universities oppose the RIAA's ex parte motion for permission to issue a subupoena or (b) an astute and hardworking judge like Judge Kelley or Judge Garcia happens to be the judge across whose desk the application comes.
So their statement that they would not turn over the information without a subpoena is a non sequitur.
These days overrated seems to be used more for "I disagree with what you are saying but don't want to get metamoderated". Also you've become something of a celebrity on Slashdot, you don't have a whole lot to worry about getting modded down unless you go and flame someone out right or something like that. I was just kidding, I'm not really afraid of being attacked. If I were, I'd be in the wrong line of work.
Did you see my Slashdot interview, where I was mercilessly hacked apart by people complaining that I hadn't answered the questions, or that I had answered them curtly. I thoroughly enjoyed it.
But I will tell you, I've noticed my story submissions getting voted down very quickly in Firehose lately. Can't help but wonder if the RIAA troll(s) are at it again.
They're asking the judge to compel the university to do something, without having the university present to present objections. They know who the university is. Correct.
Plus, it would be an easy matter for the RIAA to furnish the university, and for the university to send to the John Does, copies of (a) the summons and complaint, (b) the motion papers, and (c) the judge's rules -- i.e. all the things the rules say one is supposed to get when one is sued, and motion is made against one's interests.
Nice post! It's refreshing to see people on/. actually post an intelligent summary of an interesting article. Please keep contributing. Cheers!
-sd I'd say "thank you", shdragon, but if I leave it at that, someone will mod me down as "overrated". Can I interest you in a link to something about some other galaxies, just to keep myself at +1?
Since the RIAA wants to do everything out of sight of the public we just need to keep exposing them to the light of day. Like vampires they can't function in the open, slimy creatures prefer the dark.
I am surprised that a New Mexico judge figured it out. I spent 35 of my first 40 years there and the honesty and common sense level of judges and politicians is much lower than normal. The population is so low for that land area I knew half of them in the 80's and 90's and close to 3/4s in the 70's. I've heard from other sources that Judge Garcia is well known to be a great judge, and his decision proves it, in my book. His action speaks well for the federal court in New Mexico, so let's keep an open mind. As far as I'm concerned the whole country owes that court a debt of gratitude.
I think UW made the wrong decision, but in their defense they're not releasing any student information, just forwarding the settlement letters. If the RIAA did sue and ask for the info, they very well might fight it. The RIAA undoubtedly has sued, and has asked the judge for an ex parte order, and UW has probably done absolutely nothing to make sure the students had notice and an opportunity to oppose the motion, and UW has probably done absolutely nothing to bring to the judge's attention the legal impropriety of the RIAA's actions. And probably the judge won't be as alert as Judges Garcia and Kelley.
UW didn't "cave," at least not yet. They forwarded RIAA settlement letters to students, but specifically said that they were not forwarding the students' information on to the RIAA. Sure they're not going to turn over the information to the RIAA without a court order. But if they do nothing, and the judge in Washington isn't as alert as Judges Kelley and Garcia have been, the order will be granted ex parte. That's why I'm asking university administrators and legal counsel to please wake up and protect their students' due process rights.
Actually, W & M likely would have caved in as well, but they didn't have to because the judge caught it before it came to that... You may be right, Kazoo. We'll never know.
But thank goodness for an alert judge, who actually read the law.
UW had to give in so easily why now...? Because they were lazy and cowardly. Had they lifted a finger to fight it, they would have knocked the RIAA out of the box.
This is definitely one where people should read TFA. The judge tears their motion apart, and stops just short of saying, "I award you no points, and may god have mercy upon your soul." You're right.
He's saying, in so many words, "the whole statutory basis for your motion is nonexistent.... why didn't you read the statute before citing it?" and "why didn't you mention the real statute for this kind of thing, which DOESN'T allow this kind of motion against a COLLEGE?"
It is most gratifying to see a Judge deny an ex parte application like that. I.e., only the RIAA was in court. No one else -- not the students, not even the university -- knew about it or had a chance to say anything.
This is an example of a good judge doing his homework and actually reading the statutes, and not being impressed by pounds of paper and doubletalk.
I am very happy to see judges like Judge Kelley and Judge Garcia taking a close look, and saying to the RIAA thugs : "Wait a minute, this is still a court of law, not a schoolyard where bullies can just do whatever they want to defenseless people. We have a rule of law, here, buddy."
Interesting that you should make that analogy, as the RIAA's last firm -- Shook Hardy and Bacon -- were lawyers for "big tobacco".
That is interesting. Do their business cards say "specializing in defending outdated business models by abusing the legal system?":) No. They say "we will do anything for a buck".
I think a lot of Slashdotters are unfamiliar with the way large cases like this play out. This is the same reason why there are not very many lawyers that would take on big tobacco. You have to have a law firm that is staffed and willing to go several millions into the red on billable hours just to compete with the RIAA's defense team, who will surely go farther into the red on billable hours to avoid a precedent setting outcome. Interesting that you should make that analogy, as the RIAA's last firm -- Shook Hardy and Bacon -- were lawyers for "big tobacco".
The same law that says you can get sued if you put a swimming pool in your back yard without putting a fence around it and somebody falls in.
I suspect that the same principles would apply to companies that sell things like wireless access points with the security features turned off by default. That sure sounds like negligence to me. I'm actually surprised the RIAA hasn't latched on to that target, yet. They could probably make money on that lawsuit. You would be wrong. This is a copyright infringement case. It's controlled by the Copyright Act.
Read MGM v. Grokster (pdf) if you want to know under what circumstances someone could be liable for copyright infringement by another person.
By the way, your description of the law regarding swimming pool access is wrong, too.
Ok, I admit, I'm not familiar with the situation in the US. Here, no money exchanges hands (besides the initial payment, which is nominal and usually less than 500 bucks) before the case is settled. Furthermore, we have a rather simple "loser pays all" system, where whoever loses the trial gets to pay for everything. His lawyer, his opponent's lawyer, court cost. The whole bill is footed by the party that doesn't win the trial. In case they reach an agreement, that bill is usually split somewhere (most of the time in the middle), but we're talking trials here that are already won.
So far I thought it's the same in the US? Here it is totally different.
General rule: each side pays his or her own fees.
Generally lawyer gets paid by the hour.
Lawyer works for "contingent" fee usually only in certain specialized, well-understood areas of the law. E.g., personal injury, tax certiorari, workers compensation, collections.
"Malicious prosecution" cases don't arise until after the earlier case was won by the defendant, which would take years. The malicious prosecution case would then take a number of additional years to play out. Any lawyer who tried to make a living defending cases and doing "malicious prosecution" cases after winning them would be bankrupt very quickly.
Basically I wonder why there ain't more lawyers jumping that train. It's a tremendous economic sacrifice and risk for any lawyer to take on the defense of any of these cases. You have no understanding of the economics at all. If you did, you'd understand why "there ain't hardly any lawyers jumping on that train". The RIAA will pay its lawyers hundreds of thousands of dollars on any given case. How many of the defendants have the means and ability to pay their lawyers that kind of money?
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"bconway" is definitely an RIAA troll.
He keeps repeating the same off-topic comment, word for word, on every RIAA article that gets posted.
at least you would think he could come up with something new.
I would wager that he works for the record industry.
All I know is....
-when something bad happens let's holler about it
-when something good happens let's appreciate it and honor the judge for doing his homework, for being fair, for carrying out his or her sacred trust, and for standing up for the dignity of our judicial system.
So their statement that they would not turn over the information without a subpoena is a non sequitur.
Did you see my Slashdot interview, where I was mercilessly hacked apart by people complaining that I hadn't answered the questions, or that I had answered them curtly. I thoroughly enjoyed it.
But I will tell you, I've noticed my story submissions getting voted down very quickly in Firehose lately. Can't help but wonder if the RIAA troll(s) are at it again.
Plus, it would be an easy matter for the RIAA to furnish the university, and for the university to send to the John Does, copies of (a) the summons and complaint, (b) the motion papers, and (c) the judge's rules -- i.e. all the things the rules say one is supposed to get when one is sued, and motion is made against one's interests.
PS. Are you really Slashdot member #1797? Wow.
I hope I'm wrong.
But thank goodness for an alert judge, who actually read the law.
If I was a parent of a UW student I'd be mad.
He's saying, in so many words, "the whole statutory basis for your motion is nonexistent.... why didn't you read the statute before citing it?" and "why didn't you mention the real statute for this kind of thing, which DOESN'T allow this kind of motion against a COLLEGE?"
Yep, the RIAA prefers to do everything the sneaky way.
They find it inconvenient if someone else shows up to tell the judges the truth.
Of course, as Judge Garcia was kind enough to point out, their "ex parte" tactics are illegal. Just a minor detail.
It is most gratifying to see a Judge deny an ex parte application like that. I.e., only the RIAA was in court. No one else -- not the students, not even the university -- knew about it or had a chance to say anything.
This is an example of a good judge doing his homework and actually reading the statutes, and not being impressed by pounds of paper and doubletalk.
I am very happy to see judges like Judge Kelley and Judge Garcia taking a close look, and saying to the RIAA thugs : "Wait a minute, this is still a court of law, not a schoolyard where bullies can just do whatever they want to defenseless people. We have a rule of law, here, buddy."
1. This 1-1-1 decision (pdf) is just on technical grounds -- plaintiffs' lack of standing.
2. In view of the concurring and dissenting opinions, and the importance of the subject matter, it is likely to receive Supreme Court review.
Read MGM v. Grokster (pdf) if you want to know under what circumstances someone could be liable for copyright infringement by another person.
By the way, your description of the law regarding swimming pool access is wrong, too.
General rule: each side pays his or her own fees.
Generally lawyer gets paid by the hour.
Lawyer works for "contingent" fee usually only in certain specialized, well-understood areas of the law. E.g., personal injury, tax certiorari, workers compensation, collections.
"Malicious prosecution" cases don't arise until after the earlier case was won by the defendant, which would take years. The malicious prosecution case would then take a number of additional years to play out. Any lawyer who tried to make a living defending cases and doing "malicious prosecution" cases after winning them would be bankrupt very quickly.