It was an ex parte motion.... i.e. no one other than the RIAA knew of its existence.
The judge rejected it, realizing that there was no reason in the world for the motion to be ex parte rather than on notice.
I.e., the judge was looking out for people who weren't even aware the case was going on... he was doing exactly what a judge is supposed to be doing in such a situation.
Since the judge ordered the RIAA to confer with the University of New Mexico, that's how the order came to their attention.
You're obviously one of those people who thinks he knows it all, so what can I possibly add to "all"?
And you are obviously a big talker and a do-nothing, who prefers to backstab, second guess, and malign others, than to actually do anything.
And you're obviously someone who hates lawyers, and thinks lawyers are supposed to (a) work for free and (b) spend their days having "discussions.... within professional circles".
And you are someone who is too lazy to read about the things he talks about, because if you had read you would know there has not been a more vocal critic of the RIAA lawyers' antics than I.
You reside in a complete dream world of your own creation, which you have designed to keep yourself ignorant of reality, which I guess is some folks' way of staying comfortable and safe. I personally pity folks like that, and would prefer the discomfort that comes from being aware of reality and from trying to make it better. You can go back to sleep now. Sorry I tried to wake you from your nap, Mr. Coward.
Just another reminder to geeks with bucks, please donate to The EFF who filed am amicus brief on this subject. This group does a great job of educating these judges, and without them the government would likely stomp all over the constitution without opposition. I second that e-motion.
I strongly recommend that you accompany your work on case defence with action within the ranks of the profession against the practices of those lawyers. Without that, you appear as an unintentional *beneficiary* of those RIAA predations, and that's less than nice.
The ethical position here would be to work within the profession to get those RIAA lawyers' practices censured. You've documented their methods well, but it's not *us* to whom you should be preaching. Letters to the 50 or so bars would be a good start. Dear AC,
1. Until the judges start slamming the RIAA lawyers, any disciplinary proceedings against the lawyers would be futile.
2. In order for the judges to start slamming the RIAA lawyers, more defendants are going to have be fighting back hard, with strong legal representation.
3. Instead of telling me what I should do, in addition to what I am already doing, you should be looking at yourself and asking yourself what you should be doing, what things you could be doing to help RIAA defendants vigorously defend their cases... such as helping to set up and support one or more legal defense funds.
'm actually aware there are 50 separate state bars, but haven't there also been multiple cases in some states? And to further demonstrate my admitted naivete of legal matters I have more questions.
I thought many of these cases had been brought in federal courts? I'm aware of there being separate jurisdictions, but I would hope courts also aren't unaware of decisions that occur in other jurisdictions. My question is why the courts haven't seemed to notice the recurring pattern of behavior that you describe in your blog in How the RIAA Litigation Process Works [riaalawsuits.us].
At least to people like myself who only see a small fraction of the high profile cases that get posted on sites like Slashdot, it's a little dumbfounding that behaviors such as the John Doe cases and ex parte discovery motions (with little supporting evidence) are even being entertained let alone granted. 1. Yes there are multiple cases but almost no victories on either side.
2. They are all in federal court.
3. What decisions? I'm not aware of any decisions. I do not know of a single fully contested case that has been decided either way.
4. Courts deal with the case that is before them; they do not look for trends.
5. It is dumbfounding to me as well that the ex parte discovery motions have been granted, since they are clearly insufficient legally. It may be that some such motions have been denied... but I have no way of knowing where or when.
6. Keep an eye on Elektra v. Barker; if they get bounced there, they are going to start getting bounced everywhere.
Instead of pontificating about why the "bar" hasn't done something, you guys should be out there doing something to help the defendants fight these cases. I don't see anyone setting up a legal defense fund, do you? That's what's needed.
I suspect the real question is why the bar itself hasn't taken action against these lawyers. Surely it seems that if the same lawyers are continuously bringing meritless lawsuits on behalf of the RIAA and dismissing them when it becomes clear the defendant won't settle and the plaintiff's case is sorely lacking evidence that their professional conduct is at least questionable and worthy of investigation. It's my understanding the courts generally don't like to have their time wasted with nonsense where the plaintiff is clearly lacking a credible case and it's in the bar's interest to reprimand the lawyers involved in perpetuating this behavior. You guys are showing a little naivete.
1. There is no single "bar". There are 50 different state bars.
2. Until the RIAA lawyers start getting slammed by judges, no one is going to assume that their conduct is frivolous or unethical (as you and I know them to be). Keep an eye on Capitol v. Foster where the Court has slammed them hard. But there are going to have to be a lot more cases like that.
I see that even you yourself hesitate to censure your legal brethren, while being perfectly happy to target their client.
I'm afraid that's not good enough. I'm afraid that your reading is not good enough, as I have never hesitated to censure the RIAA's lawyers for their misconduct.
Being my adversary and fighting hard doesn't make one a bad guy.
Conducting onesself improperly and in violation of legal ethics and ordinary standards of morality does make one a bad guy.
I have never hesitated to point out to many instances in which the RIAA lawyers have shown themselves to be bad guys.
My post suggested that they will be ostracized by the legal profession.
I don't think the concept of terrorism can be applied when there's no shocking violence involved. That's what the very core of terrorist means is all about. Otherwise we would have to invent another word. I mean, how else would you distinguish something like a terrorist attack from something like what RIAA is doing? So unless you feel like there's no point in distinguishing real terrorist events from something else, I'd suggest to drop that concept regarding this article. I think an appropriate definition of terrorism might be "to attack (a) broadly rather than in a targeted manner, (b) randomly rather than rationally, and (c) with savage and disproportionate, rather than measured, force, all in order to achieve widespread fear among a class of people rather than to accomplish clearly defined strategic objectives".
The RIAA's litigation campaign is clearly terrorism under that definition.
Yes it is a metaphor, in the sense that it usually involves economic rather than physical violence, but the RIAA's thugs have suggested to defendants that if they do not pay the settlement they could be subject to imprisonment, to ruin of their credit ratings, and to public humiliation in newspapers and otherwise.... these are more than merely economic threats.
What has susprised me however is that the RIAA lawyers have not been utterly disowned by the rest of the legal profession. It is precisely their kind of behaviour that has caused the status of lawyers to plummet from respected professionals to something really appalling that I don't even want to name here. I'm sure that you've felt that taint/stigma yourself too, despite all your great work in recent years --- you cannot be happy that professional "colleagues" at the RIAA are doing what they are doing.
So why is there no movement in legal circles to lance that particularly nasty infection in the body legal? It's not the only example of lawyers losing their sense of proportion, but it has to be one of the most putrid and hateful, and certainly the one with the highest profile.
Aren't the RIAA lawyers subject to any ethical, moral or social standards at all? Doesn't the profession have any standards of conduct of its own, beyond mere adherence to the letter of the law? Does nothing else matter? Am I the only person to find the lack of professional censure of RIAA lawyers nothing short of incredible? Lots of questions. I wish I knew the answer. I do believe that once they are dumped by their client, these lawyers will have a tough time trying to reenter the legal profession.
I can see why the RIAA/IFPI/et al think that threatening his uni might work and that anyone working for a uni doesn't have a right to speake against corporations (particularly protection rackets).
I seem to recall that universities in the US have run away scared and offered money when threatened by the RIAA and not protected their students and staff (or even helped the RIAA sue them) even the innocent ones. Also, academic research is increasingly run for the benefit of corporations in the style of a protection racket with academia rolling over to any corporate demands. Didn't universities co-operate on stopping mathematicians discussing illegal primes too? Even closer to home are the RIAA's unlawful, ex parte, "John Doe" proceedings which have been brought to get the names of the universities' students. I have yet to see a university even attempt to fight one in court. Instead, to date, they have been quiescently (a) waiving their students' due process rights, and (b) turning over their students' confidential information.
Is anyone else flabbergasted by the BPI chief's statement that "allowing indiscriminate criticism of the RIAA is inappropriate for a Government funded institution"?
Surely in terms of editorial integrity at least, it should be case that it would be wholly appropriate - if not actually desirable - to criticise a private company if you are being funded by the government?
Paul Birch of Revolver Records is probably not alone in seeing the government as being simply a tool of corporate influence. This just shows how bad things have got - that people like him now need to make no secret of the fact that they expect governments to work exclusively for commercial interests. I mean, we know that the military industrial complex is now one and the same as democratically elected government in the West, but to flaunt is like this is just staggering I think. Yes I was totally shocked by it. And offended. And outraged. These are some evil people.
Apparently the RIAA is very sensitive about this counterclaim issue, and has issued threats against a blog author who referred to and and linked to Download Squad's article on the subject.
Like I said you can't just use the word, you have to use the word as it is defined in the statute, 17 USC 106(3). To be guilty of copyright infringement by infringing one's distribution rights one must have
"distribute[d] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
The following is a list of the record company plaintiffs in Arista v. Does 1-21:
Arista Records LLC
Warner Bros Records Inc.
Atlantic Recording Corporation
Virgin Records America, Inc.
UMG Recordings, Inc.
BMG Music, Inc.
Capitol Records, Inc.
SONY BMG Music Entertainment
Motown Record Company, LLP
Maverick Recording Company
Elektra Entertainment Group Inc.
LaFace Records LLC
Interscope Records
Please pass it along so people will know which record companies not to patronize.
It is the same principle... up here in Canada at least! You're not the first to make this argument. Canadian Federal Judge Konrad von Finckenstein came to exactly the same conclusion way back in 2004:
http://news.com.com/2100-1027_3-5182641.html
The case this student is making in the U.S. today has been precedent in Canada for over three years now. Not to mention that it's also precedent in the Netherlands as well. See Foundation v. UPC Nederland
Studies have shown that people with Kazaa were mostly unaware (a) that they were sharing files and (b) which files on their computer they were sharing; in fact the studies found many people sharing all the files on their computer, totally oblivious to that fact. See, e.g., exhibit B to Answer in Atlantic v. DeMassi.
What you described is probably not distribution. Distribution isn't just a word. It's a term defined in 17 USC 106(3). What you described wouldn't fit the definition.
1. As to your argument about the WIPO treaty, the RIAA made the same stupid argument in their brief in Elektra v. Barker. When the judge called them on it, they backed down immediately. Please read the transcript.
2. Nobody disputes that "distributing" as defined in 17 USC 106(3) is actionable. Thing is, the RIAA has no evidence of any such distributing taking place.
Slashdot Mirror
It was an ex parte motion.... i.e. no one other than the RIAA knew of its existence.
The judge rejected it, realizing that there was no reason in the world for the motion to be ex parte rather than on notice.
I.e., the judge was looking out for people who weren't even aware the case was going on... he was doing exactly what a judge is supposed to be doing in such a situation.
Since the judge ordered the RIAA to confer with the University of New Mexico, that's how the order came to their attention.
.. finally a judge that is requiring the RIAA to follow the law and due process. One more nail in the RIAA's coffin - Yes, this was a good one.You're obviously one of those people who thinks he knows it all, so what can I possibly add to "all"?
And you are obviously a big talker and a do-nothing, who prefers to backstab, second guess, and malign others, than to actually do anything.
And you're obviously someone who hates lawyers, and thinks lawyers are supposed to (a) work for free and (b) spend their days having "discussions.... within professional circles".
And you are someone who is too lazy to read about the things he talks about, because if you had read you would know there has not been a more vocal critic of the RIAA lawyers' antics than I.
You reside in a complete dream world of your own creation, which you have designed to keep yourself ignorant of reality, which I guess is some folks' way of staying comfortable and safe. I personally pity folks like that, and would prefer the discomfort that comes from being aware of reality and from trying to make it better. You can go back to sleep now. Sorry I tried to wake you from your nap, Mr. Coward.
Great catch, natch!
1. Until the judges start slamming the RIAA lawyers, any disciplinary proceedings against the lawyers would be futile.
2. In order for the judges to start slamming the RIAA lawyers, more defendants are going to have be fighting back hard, with strong legal representation.
3. Instead of telling me what I should do, in addition to what I am already doing, you should be looking at yourself and asking yourself what you should be doing, what things you could be doing to help RIAA defendants vigorously defend their cases... such as helping to set up and support one or more legal defense funds.
2. They are all in federal court.
3. What decisions? I'm not aware of any decisions. I do not know of a single fully contested case that has been decided either way.
4. Courts deal with the case that is before them; they do not look for trends.
5. It is dumbfounding to me as well that the ex parte discovery motions have been granted, since they are clearly insufficient legally. It may be that some such motions have been denied... but I have no way of knowing where or when.
6. Keep an eye on Elektra v. Barker; if they get bounced there, they are going to start getting bounced everywhere.
Instead of pontificating about why the "bar" hasn't done something, you guys should be out there doing something to help the defendants fight these cases. I don't see anyone setting up a legal defense fund, do you? That's what's needed.
1. There is no single "bar". There are 50 different state bars.
2. Until the RIAA lawyers start getting slammed by judges, no one is going to assume that their conduct is frivolous or unethical (as you and I know them to be). Keep an eye on Capitol v. Foster where the Court has slammed them hard. But there are going to have to be a lot more cases like that.
Being my adversary and fighting hard doesn't make one a bad guy.
Conducting onesself improperly and in violation of legal ethics and ordinary standards of morality does make one a bad guy.
I have never hesitated to point out to many instances in which the RIAA lawyers have shown themselves to be bad guys.
My post suggested that they will be ostracized by the legal profession.
The RIAA's litigation campaign is clearly terrorism under that definition.
Yes it is a metaphor, in the sense that it usually involves economic rather than physical violence, but the RIAA's thugs have suggested to defendants that if they do not pay the settlement they could be subject to imprisonment, to ruin of their credit ratings, and to public humiliation in newspapers and otherwise.... these are more than merely economic threats.
Apparently the RIAA is very sensitive about this counterclaim issue, and has issued threats against a blog author who referred to and and linked to Download Squad's article on the subject.
On what do you base your statement that "it sure seems like they have a strong case here"?
"distribute[d]
copies or phonorecords
of the copyrighted work
to the public by
sale or other transfer of ownership,
or by rental, lease, or lending.
The following is a list of the record company plaintiffs in Arista v. Does 1-21:
Arista Records LLC
Warner Bros Records Inc.
Atlantic Recording Corporation
Virgin Records America, Inc.
UMG Recordings, Inc.
BMG Music, Inc.
Capitol Records, Inc.
SONY BMG Music Entertainment
Motown Record Company, LLP
Maverick Recording Company
Elektra Entertainment Group Inc.
LaFace Records LLC
Interscope Records
Please pass it along so people will know which record companies not to patronize.
Getting back to the real world.......
Studies have shown that people with Kazaa were mostly unaware (a) that they were sharing files and (b) which files on their computer they were sharing; in fact the studies found many people sharing all the files on their computer, totally oblivious to that fact. See, e.g., exhibit B to Answer in Atlantic v. DeMassi.
Actually the correct statute is 17 USC 106(3). But definitely the RIAA has no evidence of any "distribution" as it is defined in the Copyright Act.
What you described is probably not distribution. Distribution isn't just a word. It's a term defined in 17 USC 106(3). What you described wouldn't fit the definition.
1. As to your argument about the WIPO treaty, the RIAA made the same stupid argument in their brief in Elektra v. Barker. When the judge called them on it, they backed down immediately. Please read the transcript.
2. Nobody disputes that "distributing" as defined in 17 USC 106(3) is actionable. Thing is, the RIAA has no evidence of any such distributing taking place.