I think Richard truncated my blog post where he did (compare this with this) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation, which is a very important legal publisher.
Sorry LordPhantom, will try to do better next time.
I have a lot of pressure on me from a lot of directions.
One source is the RIAA, which has been scouring my internet writings and keeps trying to discredit me with the Judge. Just the other day, when I wrote to the Judge to submit the decision of the District Court of Utrecht in the Netherlands, and the independent expert report upon which it was partially based, they tried to "strike" my submission, and in support of their motion to "strike" sent the judge a page from my blog. It's all here.
Mainly, I've come to this decision: I'm under so much time pressure, I have to concentrate on what is the most important contribution I can make, and leave the rest to others. The most important contribution I can make is get accurate news and information out there. So I try to concentrate on that and let the rest of the world take care of the rest. Excellent commentators such as p2pnet.net, Ars Technica, TechDirt, Digital Music Web Log, Boing Boing, and others, can often make it more understandable. I got a laugh when Grant Robertson of Digital Music Weblog wrote that my article "How the RIAA Litigation Process Works" read like dry toast, and wrote his own version of it designed for non-lawyers.
It's good news, because the objection was just complaining about some language, and the judge was saying 'don't worry, the language doesn't mean what you feared it meant... and just to be sure, let me make it clear: the plaintiffs will have the burden of proving defendant actually shared files'.
I'm not aware of another decision, among the 25,000 or so cases that have been brought so far, where the Court has (a) laid out the standard of proof the RIAA will have to meet at trial, or (b) made it clear that the RIAA's theory -- that merely having a shared files folder is in and of itself a "distribution" -- won't cut it at trial.
If you or any other reader is aware of any such decision, please bring it to my attention. Thanks.
RareButSeriousSideEf said: "I guess it's because IANAL that I expect that which looks correct and just to prevail in court. At any rate, the Elektra v. Barker case will be interesting to watch; I'm especially interested in how high (or low) the "standard of evidence" bar ends up for the the RIAA going forward."
Well IAAL but I also "expect that which looks correct and just to prevail in court". Maybe I'm a slow learner.
In any event I hope Judge Karas does the right thing in Barker. It would go a long way toward clearing up the mess that is inundating the federal courts at the moment.
Of course the judge isn't going to stand in the way of the case being dismissed. But the judge, not the plaintiff, will decide whether it is "with prejudice" or "without prejudice". Fed. R. Civ. P. 41(a)(1) and (2). Please stop spreading misinformation here.
denebian devil said "It's their case, they instituted it, and they can end it."
Please stop making misleading statements. Once an answer has been served, it is no longer up to the plaintiff whether it can drop the case, and it is no longer up to the plaintiff whether any dismissal is "without prejudice" or "with prejudice". Fed. R. Civ. P. 41(a)(1) and (2).
I don't know why. I think the judge was just wrong.
Here are the briefs (called memoranda of law) and the Court's November 28, 2005, decision.
But all of the issues in that dismissal motion are on the table now in Elektra v. Barker, which is scheduled for oral argument on January 26, 2007, at 2:15 p.m., in Manhattan. Amicus briefs pro and con have been submitted in Barker by various organizations pro and con, and the real battle as to whether "making available" is, or is not, in and of itself, a copyright infringement, will be played out there.
freedom_india says:"I do sincerely hope the judge dismisses it with Prejudice and make RIAA pay the legal costs. But that would be a pittance."
It would be a 'pittance' only in the sense that whatever the number is, the RIAA can well afford to pay it for this particular case.
But in every other sense it would be huge. In view of how well publicized this case has been to date, and the even greater publicity such an award will receive, it would be a shot heard 'round the world.
In the first place the award itself probably wouldn't be miniscule; it is probably in the neighborhood of $100k.
Secondly, it would have a huge ripple effect among -defendants -defendant's lawyers -people who are thinking of fighting back but haven't decided -lawyers who are thinking of jumping into the fight but haven't yet done so -the thinking of the judges and -all future cases.
A healthy attorneys fee award here could be the beginning of the end of the RIAA's "driftnet" litigation juggernaut.
denebian devil said: "Not to try to disagree with a Real Lawyer..."
Then don't try to disagree with a Real Lawyer.
There are thousands of different types of litigations, actions, and proceedings, and thousands of different procedural contexts. I'm talking about this one.
If you are aware of a federal court copyright case, which has been heavily litigated, has gone through and completed extensive pretrial discovery, and is on the ready trial calendar, in which a plaintiff submitted a 'voluntary dismissal order' which the judge rubber stamped, tell us about it. Otherwise, don't say things which other readers might be misled by were they to give you any credibility.
I notice that one naive soul has already modded your incorrect statement "Interesting".
One thing that amazes me about Slashdot is that some members who know nothing about the law will act as though they are experts. I wonder why they do that.
This will not be rubber stamped. No one is going to question the dismissal, but the judge is very unlikely to allow a case which has been this heavily litigated to be dismissed "without prejudice".
Harin_Teb wrote: "Any time a plaintiff drops a suit (for the first time) it is dropped without prejudice."
Sorry, Harin, you're wrong about that. If they had sought to drop the case prior to the defendant's service of an answer, that would be correct. After service of an answer, it can only be "without prejudice" if the judge allows them to dismiss "without prejudice". It would be highly unusual and irregular for that to happen in a case which has already been so heavily litigated as this one.
The plaintiffs knew even before they'd brought the case that the defendant was not liable. There's no way the judge is just going to let them get away with what they did here.
You are exactly right. The author and Slashdot are incorrect. Only the court can dismiss.
What actually happened is the RIAA has made a motion to dismiss without prejudice.
No doubt Ms. Santangelo's lawyer will be responding to the motion by pointing out to the judge that -- after over a year and a half of complex grueling litigation -- the dismissal should be "with prejudice", not "without prejudice". Assuming the judge agrees with Ms. Santangelo, which is highly likely, then Ms. Santangelo will be a "prevailing party" and eligible for an attorneys fees award. See Capitol v. Foster, July 13th Order and Decision.
I agree with you. I was appalled at the stupidity shown here. This quote from William Beebe says it all:
The beauty and genius of a work of art may be reconceived, though its first material expression be destroyed; a vanished harmony may yet again inspire the composer; but when the last individual of a race of living things breathes no more, another heaven and another earth must pass before such a one can be again.
~ William Beebe, The Bird, It's Form and Function (1906).
Well if you want to have some fun with it why don't you start imagining all the possible p2p sharing behaviors, analogizing to what people do in the real world with song files that are on a cd? And then when you've done that, see if you can add a few more that are behaviors which one can do on the internet that one cannot do with physical cd's. I can think of quite a few such behaviors, but each time I start thinking of them, I start thinking of different factual wrinkles, and then a few more.... and I'm one of the least creative people I know.
And then once you're convinced you've reached your magic number, finite, total universe of such behaviors, since you seem to want to believe along with the GGGGGP that there is such a number, start thinking of all the possible defenses for each factual scenarios.
Wouldn't that be more constructive than debating with me as to whether there is a magic number of "3" or "7" or "66" or "144"?
I never said that their lawyers were of a "higher caliber". You did.
As to the specific reason you gave in support of your opinion, posit the question to any experienced litigation lawyer whether your 'debating' suggestion is sound litigation behavior, and I predict that you'll get first a broad smile, then a no, then an avuncular lecture. But you're entitled to your opinion; that's what Slashdot is all about.
I do not wish you "ill luck in [your] career." I wish you good luck in your career. And I certainly hope that you can find honest work, something the RIAA's lawyers have failed to achieve.
If you're going to be an armchair quarterback at least do your job.
Read the legal documents:
my October 28th letter to the judge; the RIAA's November 1st response; my December 1st response; the judge's decision; my December 7th letter to the court with attachments.
The October 28th-December 4th documents are listed here and the December 7th document is here.
Then let me know what you think I omitted, or did wrong, so as to lead you to the conclusion that I am "not of the same caliber as the RIAA's attack dogs".
Slashdot Mirror
Dear Alter_Fritz:
Thanks for your suggestions.
I think Richard truncated my blog post where he did (compare this with this) because he didn't want Judge Levy to see that the litigation documents were being hosted by Pike & Fischer's Internet Law & Regulation, which is a very important legal publisher.
I think it was much more important, in my response, to call attention to the decision of the Amsterdam Court of Appeals, affirming the District Court decision and agreeing with the report of Prof. Sips and Dr. Pouwelse, than to sink to Richard's level and waste the Magistrate's time with a debate over the merits of my humble blog.
Don't you?
No, I think the decision specifically negates the first possibility.
We complained that Magistrate's report implied that merely have a shared files folder on the internet would be a copyright infringement.
Judge said "no, it doesn't say that, it means that the RIAA will have to prove that defendant actually did share files".
Sorry LordPhantom, will try to do better next time.
I have a lot of pressure on me from a lot of directions.
One source is the RIAA, which has been scouring my internet writings and keeps trying to discredit me with the Judge. Just the other day, when I wrote to the Judge to submit the decision of the District Court of Utrecht in the Netherlands, and the independent expert report upon which it was partially based, they tried to "strike" my submission, and in support of their motion to "strike" sent the judge a page from my blog. It's all here.
Mainly, I've come to this decision: I'm under so much time pressure, I have to concentrate on what is the most important contribution I can make, and leave the rest to others. The most important contribution I can make is get accurate news and information out there. So I try to concentrate on that and let the rest of the world take care of the rest. Excellent commentators such as p2pnet.net, Ars Technica, TechDirt, Digital Music Web Log, Boing Boing, and others, can often make it more understandable. I got a laugh when Grant Robertson of Digital Music Weblog wrote that my article "How the RIAA Litigation Process Works" read like dry toast, and wrote his own version of it designed for non-lawyers.
It's all in there. First read the magistrate's report. Then read the objection to the magistrate's report. Then read Judge Trager's decision.
If you want to go back further, read the motion papers for the preclusion motion in UMG v. Lindor.
It's good news, because the objection was just complaining about some language, and the judge was saying 'don't worry, the language doesn't mean what you feared it meant... and just to be sure, let me make it clear: the plaintiffs will have the burden of proving defendant actually shared files'.
I think it's actually quite significant.
I'm not aware of another decision, among the 25,000 or so cases that have been brought so far, where the Court has (a) laid out the standard of proof the RIAA will have to meet at trial, or (b) made it clear that the RIAA's theory -- that merely having a shared files folder is in and of itself a "distribution" -- won't cut it at trial.
If you or any other reader is aware of any such decision, please bring it to my attention. Thanks.
RareButSeriousSideEf said: "I guess it's because IANAL that I expect that which looks correct and just to prevail in court. At any rate, the Elektra v. Barker case will be interesting to watch; I'm especially interested in how high (or low) the "standard of evidence" bar ends up for the the RIAA going forward."
Well IAAL but I also "expect that which looks correct and just to prevail in court". Maybe I'm a slow learner.
In any event I hope Judge Karas does the right thing in Barker. It would go a long way toward clearing up the mess that is inundating the federal courts at the moment.
Of course the judge isn't going to stand in the way of the case being dismissed. But the judge, not the plaintiff, will decide whether it is "with prejudice" or "without prejudice". Fed. R. Civ. P. 41(a)(1) and (2). Please stop spreading misinformation here.
denebian devil said "It's their case, they instituted it, and they can end it."
Please stop making misleading statements. Once an answer has been served, it is no longer up to the plaintiff whether it can drop the case, and it is no longer up to the plaintiff whether any dismissal is "without prejudice" or "with prejudice". Fed. R. Civ. P. 41(a)(1) and (2).
Please stop spreading misinformation.
I don't know why. I think the judge was just wrong.
Here are the briefs (called memoranda of law) and the Court's November 28, 2005, decision.
But all of the issues in that dismissal motion are on the table now in Elektra v. Barker, which is scheduled for oral argument on January 26, 2007, at 2:15 p.m., in Manhattan. Amicus briefs pro and con have been submitted in Barker by various organizations pro and con, and the real battle as to whether "making available" is, or is not, in and of itself, a copyright infringement, will be played out there.
freedom_india says:"I do sincerely hope the judge dismisses it with Prejudice and make RIAA pay the legal costs. But that would be a pittance."
It would be a 'pittance' only in the sense that whatever the number is, the RIAA can well afford to pay it for this particular case.
But in every other sense it would be huge. In view of how well publicized this case has been to date, and the even greater publicity such an award will receive, it would be a shot heard 'round the world.
In the first place the award itself probably wouldn't be miniscule; it is probably in the neighborhood of $100k.
Secondly, it would have a huge ripple effect among
-defendants
-defendant's lawyers
-people who are thinking of fighting back but haven't decided
-lawyers who are thinking of jumping into the fight but haven't yet done so
-the thinking of the judges and
-all future cases.
A healthy attorneys fee award here could be the beginning of the end of the RIAA's "driftnet" litigation juggernaut.
denebian devil said: "Not to try to disagree with a Real Lawyer..."
Then don't try to disagree with a Real Lawyer.
There are thousands of different types of litigations, actions, and proceedings, and thousands of different procedural contexts. I'm talking about this one.
If you are aware of a federal court copyright case, which has been heavily litigated, has gone through and completed extensive pretrial discovery, and is on the ready trial calendar, in which a plaintiff submitted a 'voluntary dismissal order' which the judge rubber stamped, tell us about it. Otherwise, don't say things which other readers might be misled by were they to give you any credibility.
I notice that one naive soul has already modded your incorrect statement "Interesting".
Doc Ruby said: "....my own parents raised me right...."
My parents raised me not to sing my own praises.
Thank you John.
One thing that amazes me about Slashdot is that some members who know nothing about the law will act as though they are experts. I wonder why they do that.
This will not be rubber stamped. No one is going to question the dismissal, but the judge is very unlikely to allow a case which has been this heavily litigated to be dismissed "without prejudice".
It would be highly unusual to permit a case to be dismissed "without prejudice" when this much water has gone under the bridge.
The article contains a link to an old Slashdot article which has an incorrect link to the transcript of Ms. Santangelo's appearance before Judge McMahon. Here's the correct link to the transcript: http://info.riaalawsuits.us/elektra_santangelo/tra nscript050506.txt
Harin_Teb wrote: "Any time a plaintiff drops a suit (for the first time) it is dropped without prejudice."
Sorry, Harin, you're wrong about that. If they had sought to drop the case prior to the defendant's service of an answer, that would be correct. After service of an answer, it can only be "without prejudice" if the judge allows them to dismiss "without prejudice". It would be highly unusual and irregular for that to happen in a case which has already been so heavily litigated as this one.
The plaintiffs knew even before they'd brought the case that the defendant was not liable. There's no way the judge is just going to let them get away with what they did here.
You are exactly right. The author and Slashdot are incorrect. Only the court can dismiss.
What actually happened is the RIAA has made a motion to dismiss without prejudice.
No doubt Ms. Santangelo's lawyer will be responding to the motion by pointing out to the judge that -- after over a year and a half of complex grueling litigation -- the dismissal should be "with prejudice", not "without prejudice". Assuming the judge agrees with Ms. Santangelo, which is highly likely, then Ms. Santangelo will be a "prevailing party" and eligible for an attorneys fees award. See Capitol v. Foster, July 13th Order and Decision.
Well if you want to have some fun with it why don't you start imagining all the possible p2p sharing behaviors, analogizing to what people do in the real world with song files that are on a cd? And then when you've done that, see if you can add a few more that are behaviors which one can do on the internet that one cannot do with physical cd's. I can think of quite a few such behaviors, but each time I start thinking of them, I start thinking of different factual wrinkles, and then a few more.... and I'm one of the least creative people I know.
And then once you're convinced you've reached your magic number, finite, total universe of such behaviors, since you seem to want to believe along with the GGGGGP that there is such a number, start thinking of all the possible defenses for each factual scenarios.
Wouldn't that be more constructive than debating with me as to whether there is a magic number of "3" or "7" or "66" or "144"?
I have never asked anyone to accept anything I say as gospel.
The GGGP said there are only 3 possible arguments.
I responded that there are many more than 3.
If you want to believe that there are only 3 possible arguments, that's your prerogative.
I never said that their lawyers were of a "higher caliber". You did.
As to the specific reason you gave in support of your opinion, posit the question to any experienced litigation lawyer whether your 'debating' suggestion is sound litigation behavior, and I predict that you'll get first a broad smile, then a no, then an avuncular lecture. But you're entitled to your opinion; that's what Slashdot is all about.
I do not wish you "ill luck in [your] career." I wish you good luck in your career. And I certainly hope that you can find honest work, something the RIAA's lawyers have failed to achieve.
If you're going to be an armchair quarterback at least do your job.
Read the legal documents:
my October 28th letter to the judge;
the RIAA's November 1st response;
my December 1st response;
the judge's decision;
my December 7th letter to the court with attachments.
The October 28th-December 4th documents are listed here and the December 7th document is here.
Then let me know what you think I omitted, or did wrong, so as to lead you to the conclusion that I am "not of the same caliber as the RIAA's attack dogs".