Your comment is a textbook exercise in fallacious reasoning and is off-topic. You go on and on about things that are never mentioned in the motion . The post is about the motion . And the motion is not about Dr. Jacobson's personality or mine, it's not about my questioning him on the hard drive inspection or about my questioning about his refusal to admit he knows the words 'inculpate' and 'exculpate'. It is not about the statutory damages unconstitutionality defense, or any of the other red herrings you raised which are never mentioned, and are not part of, the motion. It is not about any "screwups" in his testimony.
If you were to actually read the motion you would see that it is not about the entire deposition, it is about one narrow aspect of the deposition: the witness's testimony establishing that, as a matter of law, his testimony cannot satisfy the "reliability" factors set forth in the Daubert case and Federal Rule of Evidence 702, which are a prerequisite to admissibility of expert testimony.
There is not a word in your very strange post on that subject.
You do not understand the law, or what the case was about, or what the deposition was about, or what the motion is about. The deposition was about what his methods were, and whether they were sufficiently "reliable" under the Daubert line of cases. His deposition testimony negated any possibility of his testimony being admissible at trial because he flunked all of the "reliability" standards.
Your comment makes no sense. He was not "supposed to investigate" anything; he was "supposed to" testify about the investigation that was done three (3) years earlier.
As to whether he was "out of his area", he probably was... but that's not my fault, that's his, for pretending to be something he's not, and it's the RIAA's, for inducing the man to pretend to be something he's not. While I may have been asking him things he couldn't answer, they were not irrelevant to his report and his proffered testimony; they were directly relevant to what he falsely claimed.
I'm sorry to have to tell you that your knowledge of law is quite limited. There is no "prosecution"; this is a civil case. There is no concept of "reasonable doubt" in a civil case.
Yes his testimony is helpful to defendant. But this is not a game; this is a federal trial where one side is suing someone for tens of thousands of dollars. Under clear standards of law his testimony is inadmissible and must be excluded. I would be a pretty dumb lawyer if I allowed the RIAA to bring this guy anywhere near a courtroom.
Surely the RIAA can't be the *only* underhanded "litigious bastards" out there!
As a matter of fact I'm not aware of anyone other than the RIAA who's ever pulled this stunt. I'm hoping one of the ISP's or one of the universities will take them on -- with some of the materials I've assembled -- and I'm sure any decent judge, upon seeing the legal reasons why the process is improper, will deny the discovery motion.
No there's no procedure that requires the judge to grant the motion, and there is strong caselaw to the effect that they should be denying the motion, for more than one reason.
Unfortunately it hasn't been that way. They've been docilely cooperative, unlike the ISP's who resisted the process in Canada and the Netherlands. Which is why they have these unfair lawsuits in the US but not in Canada or the Netherlands.
That's not fair play, that's sneaky behind-the-back play... And your casual description shows you don't understand the import. The ISP will get a subpoena and court order... that's it. The John Does will get a subpoena and court order... and that's it. They will have no meaningful opportunity to take action against a fait accompli. Read here for my description of how this ex parte thing works.
The courts should not be accepting these ex parte, one-sided, applications. They should be insisting that prior notice be given to the John Does through the ISP.
1. Of course not, now that they've got their order signed by the judge.
2. This is the first time I've ever seen a news article reporting on the fact that the RIAA got an ex parte order signed. Usually it does remain a secret except to the ISP who eventually learns of it
Under our American justice system, and the Federal Rules of Civil Procedure, there is a strong presumption in favor of giving notice prior to the Court's taking action , not after.
It is much harder to get a Court to take action to undo something it has done, then to get it not to take the action in the first place.
Having a couple of days to hurriedly (a) investigate what the case was based on, (b) investigate what the motion for discovery was based on, (c) engage your own witnesses, and experts, and do legal research, and prepare and serve and file papers, is not the same as having an opportunity to meet all that ahead of time.
The honorable and legally correct and professional way to seek this discovery would be to give the university notice prior to making the application, and give the university extra copies of the summons, the complaint, the motion papers, and the court rules, for distribution to the John Does, so that they would all have a meaningful opportunity to consult with legal counsel, and so that their counsel would have a meaningful opportunity to act.
The RIAA doesn't do thing the honorable, correct, or professional... it always opts for the sneakiest, most un-American, most unfair, way of doing everything.
Slashdot Mirror
It is I who am thankful for the outpouring of assistance we received from the tech community.
Then when I correct your misuse of legal terms, you say
You could've been nice and simply corrected me, but instead you attack my position based on nitpicking terminology.Sorry I'm not as
nice as you are.If you were to actually read the motion you would see that it is not about the entire deposition, it is about one narrow aspect of the deposition: the witness's testimony establishing that, as a matter of law, his testimony cannot satisfy the "reliability" factors set forth in the Daubert case and Federal Rule of Evidence 702, which are a prerequisite to admissibility of expert testimony.
There is not a word in your very strange post on that subject.
Your comment makes no sense. He was not "supposed to investigate" anything; he was "supposed to" testify about the investigation that was done three (3) years earlier.
As to whether he was "out of his area", he probably was... but that's not my fault, that's his, for pretending to be something he's not, and it's the RIAA's, for inducing the man to pretend to be something he's not. While I may have been asking him things he couldn't answer, they were not irrelevant to his report and his proffered testimony; they were directly relevant to what he falsely claimed.
I'm sorry to have to tell you that your knowledge of law is quite limited. There is no "prosecution"; this is a civil case. There is no concept of "reasonable doubt" in a civil case.
Yes his testimony is helpful to defendant. But this is not a game; this is a federal trial where one side is suing someone for tens of thousands of dollars. Under clear standards of law his testimony is inadmissible and must be excluded. I would be a pretty dumb lawyer if I allowed the RIAA to bring this guy anywhere near a courtroom.
I don't understand the complaint about there being too many links. You don't have to click them all if you don't want to.
1. The designation of "foe" was by mistake.
2. I don't know what the heck you are talking about with "revenge" and "sock puppets".
If this court makes this ruling (and while IANAL, I would grant this motion!), could this be grounds for challanging all future MAFIAA supenas?
1.Yes.
2. Yes.
As a matter of fact I'm not aware of anyone other than the RIAA who's ever pulled this stunt. I'm hoping one of the ISP's or one of the universities will take them on -- with some of the materials I've assembled -- and I'm sure any decent judge, upon seeing the legal reasons why the process is improper, will deny the discovery motion.
By the way, the RIAA's so-called expert Dr. Doug is being deposed Monday in Atlantic v. Andersen. We've moved to exclude him from testifying at the trial in UMG v. Lindor.
No there's no procedure that requires the judge to grant the motion, and there is strong caselaw to the effect that they should be denying the motion, for more than one reason.
But you are right on when you say
The first question the judge should be asking is where the affected parties are and why they aren't at the court.You have an interesting history. On every RIAA story you seem to see it from the RIAA's point of view. I wonder who you work for.
Unfortunately it hasn't been that way. They've been docilely cooperative, unlike the ISP's who resisted the process in Canada and the Netherlands. Which is why they have these unfair lawsuits in the US but not in Canada or the Netherlands.
That's not fair play, that's sneaky behind-the-back play... And your casual description shows you don't understand the import. The ISP will get a subpoena and court order... that's it. The John Does will get a subpoena and court order... and that's it. They will have no meaningful opportunity to take action against a fait accompli. Read here for my description of how this ex parte thing works.
You're the one doing a disservice spouting nonsense.
I can answer that, marcosdumay:
The courts should not be accepting these ex parte, one-sided, applications. They should be insisting that prior notice be given to the John Does through the ISP.
You're starting to sound like an RIAA troll to me.
And I'm guessing he had something to do with getting the decision published in Internet Law & Regulation, which is where I learned of it.
2. This is the first time I've ever seen a news article reporting on the fact that the RIAA got an ex parte order signed. Usually it does remain a secret except to the ISP who eventually learns of it
after it's already been accomplished .
Under our American justice system, and the Federal Rules of Civil Procedure, there is a strong presumption in favor of giving notice prior to the Court's taking action , not after.
It is much harder to get a Court to take action to undo something it has done, then to get it not to take the action in the first place.
Having a couple of days to hurriedly (a) investigate what the case was based on, (b) investigate what the motion for discovery was based on, (c) engage your own witnesses, and experts, and do legal research, and prepare and serve and file papers, is not the same as having an opportunity to meet all that ahead of time.
The honorable and legally correct and professional way to seek this discovery would be to give the university notice prior to making the application, and give the university extra copies of the summons, the complaint, the motion papers, and the court rules, for distribution to the John Does, so that they would all have a meaningful opportunity to consult with legal counsel, and so that their counsel would have a meaningful opportunity to act.
The RIAA doesn't do thing the honorable, correct, or professional... it always opts for the sneakiest, most un-American, most unfair, way of doing everything.
Thank you, Kokuyo.
Excellent point, phooka.de.
They were probably not served with the papers. Therefore they would have had no opportunity to oppose it.
It was an ex parte proceeding. It was not a "win". There was no one else in court. No one to oppose it.
It was not against University of Wisconsin. It's against the "John Does".
Thank you, multisync.
In this particular case the 7 year old didn't do anything either. The case is a crock.