1. I commend you on reading the documents. That's impressive.
2. They accused her, in boilerplate, of downloading, distributing, and/or making available for distribution.
3. In fact all they had is a screenshot indicating that somebody using that dynamic IP address had a shared files folder, which the RIAA considers 'making available for distribution' or 'distributing'.
I do believe that they have had communications with the hard drive experts which they have never disclosed to their adversaries, which they were required to disclose. They have an erroneous conception of (a) what communications with their experts are "privileged" and (b) what it means for a communication to be privileged. They think anything they're afraid of getting out there is privileged; the law doesn't agree with that. They think that if they think something is privileged it doesn't have to be mentioned at all; the law is that even if you think a communication is privileged, you are supposed to disclose its existence in a privilege log, and let your adversary know about it, and let the Court decide if it's privileged or not.
In UMG v. Lindor, they were supposed to disclose all documents concerning MediaSentry's investigation. They turned over some printouts MediaSentry had made, and a privilege log falsely claiming privilege for three engagement agreements between the RIAA and MediaSentry. They never turned over a single memo, email, invoice, letter, or any other form of communication between MediaSentry and the RIAA or its counsel. Do you really believe that there was no such communication? I don't.
I have seen a great deal of sharp practice and frivolous conduct by the RIAA's lawyers, and I do expect it to start catching up with them, now that a handful of litigants are starting to push back.
Now that this ruling has occurred, and has been made available publicly, most defendants who are represented by lawyers won't be handing anything over without a similar protective order.
I think it doesn't side with either; it fairly balances the rights of both parties. But since the RIAA wants everything to be one-sided, and this is, instead, even-handed, I chalk it up as a win for the good guys.
Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance. I predict that this decision will be the gold standard for future hard drive analyses in the RIAA v. Consumer litigations, and that the RIAA is not at all happy with it, since the RIAA's ability to manipulate the results of the analysis is greatly diminished. These are not the kind of lawyers that are on a quest for the truth.
A similar, slightly more restrictive, decision was handed down awhile back in Atlantic v. Andersen in Oregon, but the RIAA fought it, kicking and screaming. The judge wound up letting the RIAA have the hard drive. They found nothing, but still haven't turned in their report and still haven't dropped the case either. Most likely they'll claim that Ms. Andersen, a disabled, impoverished woman who never even used file sharing in her life, switched the hard drives on them, as they're now claiming with Marie Lindor, a home health aide who has never even used a computer.
You have not read the rules correctly. It is nowhere limited to actual solicitation for services. It applies to all electronic communications which are "about a lawyer" and "by a lawyer", which would probably apply to all law firm web sites, internet and email newsletters, and to any legal blog where the lawyer actually identifies himself. If you think there is a section restricting the rules to "actual solicitation of services" please point to that section. Here are the rules:
In order to comply with the rules I would have to label every page an "advertisement", which they are not, and I would have to file copies of each and every page every day. I couldn't afford the time and money it would take.
Thank you. I agree that it is way over the top. I can see where big corporations -- who can pay top dollar for legal information -- would love to see the information become less available to the public. For example, how happy do you think the record labels would be to see my recording industry blog shut down?
Fortunately, though, the entire legal community in New York agrees with you as well, that it is way over the top. So I don't think the rules will go through in that overbroad format.
For those of you who haven't seen the rules, they're posted here.
I agree with you that there are huge First Amendment issues with the proposed rules. But if they were to go through in that format, most lawyers who need to make a living are not going to take a chance on violating the rules and then using the First Amendment as their defense.
I disagree. My blogs, and even my Slashdot profile, identify me and who I am. Under the proposed rules that could make the entire publication "an advertisement". No lawyer who wants to keep on being a lawyer is going to take a chance on that.
Fortunately, though, the various bar associations and other lawyer groups are very concerned about the rules, and are putting in detailed comments explaining how the proposed rules are too overbroad. And the Appellate Divisions have postponed the proposed effective dates, in order to give the legal community and the public at large more time to comment.
Arguably my entire membership in Slashdot would indeed count, since my profile identifies me. It would of course be impossible to comply with those rules, so I might just have to stop participating in Slashdot, which for me would be sad indeed. I have really come to enjoy it here.
Blogs by lawyers are a pretty new thing, but I think they have made a significant contribution. I think it would be a shame if we had to stop blogging just because we're lawyers.
I don't think the proposed rules will be passed in that form, so I'm not too worried.
For those of you who haven't seen the proposed rules, they're posted here.
But to tell you the truth, I'd rather not do it, because (a) when I'm here I'm not practicing law, i.e. I'm not representing any client and I'm not giving anyone legal advice, (b) if anyone doesn't want to listen to me, that's their perogative, (c) being a lawyer doesn't give my words any added weight, a lawyer can be just as wrong as anybody else, and (d) if people want to disagree with me, or dump on me, that's fine, so long as they can back it up. Maybe they'll teach me something.
Apparently so. The idea that they would have one side of the dispute, in a disputed area of the law, dictate to impressionable kids what the law is, is astonishing, and certainly would count as a lesson in mindlessness and a textbook case of teaching them "not thinking independently".
In copyright infringement cases the Court does have discretion to award the winner legal fees. In this case we don't know what the settlement was since there was probably a settlement agreement, and we haven't seen what the settlement agreement says.
No I think it was not helpful at all to the RIAA, for the Government to seek to distance itself from the RIAA's main (indeed only) argument for the merit of its case.
I agree that a class action would be good. Am hopeful that the class action bar will take this up.
Slashdot Mirror
They claim it's the first time a judge didn't let them have their way on this issue.
1. I commend you on reading the documents. That's impressive.
2. They accused her, in boilerplate, of downloading, distributing, and/or making available for distribution.
3. In fact all they had is a screenshot indicating that somebody using that dynamic IP address had a shared files folder, which the RIAA considers 'making available for distribution' or 'distributing'.
I do believe that they have had communications with the hard drive experts which they have never disclosed to their adversaries, which they were required to disclose. They have an erroneous conception of (a) what communications with their experts are "privileged" and (b) what it means for a communication to be privileged. They think anything they're afraid of getting out there is privileged; the law doesn't agree with that. They think that if they think something is privileged it doesn't have to be mentioned at all; the law is that even if you think a communication is privileged, you are supposed to disclose its existence in a privilege log, and let your adversary know about it, and let the Court decide if it's privileged or not.
In UMG v. Lindor, they were supposed to disclose all documents concerning MediaSentry's investigation. They turned over some printouts MediaSentry had made, and a privilege log falsely claiming privilege for three engagement agreements between the RIAA and MediaSentry. They never turned over a single memo, email, invoice, letter, or any other form of communication between MediaSentry and the RIAA or its counsel. Do you really believe that there was no such communication? I don't.
I have seen a great deal of sharp practice and frivolous conduct by the RIAA's lawyers, and I do expect it to start catching up with them, now that a handful of litigants are starting to push back.
Now that this ruling has occurred, and has been made available publicly, most defendants who are represented by lawyers won't be handing anything over without a similar protective order.
I think it doesn't side with either; it fairly balances the rights of both parties. But since the RIAA wants everything to be one-sided, and this is, instead, even-handed, I chalk it up as a win for the good guys.
Yes, but the RIAA says this is the very first time this has happened to them. So I wouldn't diminish its significance. I predict that this decision will be the gold standard for future hard drive analyses in the RIAA v. Consumer litigations, and that the RIAA is not at all happy with it, since the RIAA's ability to manipulate the results of the analysis is greatly diminished. These are not the kind of lawyers that are on a quest for the truth.
A similar, slightly more restrictive, decision was handed down awhile back in Atlantic v. Andersen in Oregon, but the RIAA fought it, kicking and screaming. The judge wound up letting the RIAA have the hard drive. They found nothing, but still haven't turned in their report and still haven't dropped the case either. Most likely they'll claim that Ms. Andersen, a disabled, impoverished woman who never even used file sharing in her life, switched the hard drives on them, as they're now claiming with Marie Lindor, a home health aide who has never even used a computer.
The rule also applies to out of state lawyers.
The Association of the Bar of the City of New York has pointed out the First Amendment problems with the proposed rules and suggested detailed changes (pdf file) in them.
These are the rules you would be referring to. Proposed amendments to Ruless html
1200-1
1200-5-a
1200-6
1200-7
1200-8
http://www.nycourts.gov/rules/proposedamendments.
You have not read the rules correctly. It is nowhere limited to actual solicitation for services. It applies to all electronic communications which are "about a lawyer" and "by a lawyer", which would probably apply to all law firm web sites, internet and email newsletters, and to any legal blog where the lawyer actually identifies himself. If you think there is a section restricting the rules to "actual solicitation of services" please point to that section. Here are the rules:
s html
http://www.nycourts.gov/rules/proposedamendments.
Either that, or a more well-drafted rule, which I think would be easier to put together than the scenario you have posited.
If I didn't identify where it was coming from, it might be misleading.
Thanks,Jaysyn.
Actually for me personally it would probably be a blessing, since I spend far too much time on this already.
But the people I'm trying to help would be out their primary resource for fighting back against the RIAA.
In order to comply with the rules I would have to label every page an "advertisement", which they are not, and I would have to file copies of each and every page every day. I couldn't afford the time and money it would take.
Thank you. I agree that it is way over the top. I can see where big corporations -- who can pay top dollar for legal information -- would love to see the information become less available to the public. For example, how happy do you think the record labels would be to see my recording industry blog shut down?
Fortunately, though, the entire legal community in New York agrees with you as well, that it is way over the top. So I don't think the rules will go through in that overbroad format.
For those of you who haven't seen the rules, they're posted here.
The proposed rules are posted here.
Yes these would be binding rules imposed on all lawyers in New York.
I agree with you that there are huge First Amendment issues with the proposed rules. But if they were to go through in that format, most lawyers who need to make a living are not going to take a chance on violating the rules and then using the First Amendment as their defense.
I disagree. My blogs, and even my Slashdot profile, identify me and who I am. Under the proposed rules that could make the entire publication "an advertisement". No lawyer who wants to keep on being a lawyer is going to take a chance on that.
tddoog wrote:
"Too bad for Newyorkcountrylawyer and his blog. I wonder if slashdot interviews would count?"
If those rules go into effect, both of my blogs, Recording Industry vs. The People, and Ohio Election Fraud (formerly "Fairness"), along with my web sites, info.riaalawsuits.us and Ohio Election 2004 would be taken down, as it would be far too costly and time consuming to comply with the new rules. See my collection of articles on New York's rules and the impact they would have on lawyer blogs herej.
Fortunately, though, the various bar associations and other lawyer groups are very concerned about the rules, and are putting in detailed comments explaining how the proposed rules are too overbroad. And the Appellate Divisions have postponed the proposed effective dates, in order to give the legal community and the public at large more time to comment.
Arguably my entire membership in Slashdot would indeed count, since my profile identifies me. It would of course be impossible to comply with those rules, so I might just have to stop participating in Slashdot, which for me would be sad indeed. I have really come to enjoy it here.
Blogs by lawyers are a pretty new thing, but I think they have made a significant contribution. I think it would be a shame if we had to stop blogging just because we're lawyers.
I don't think the proposed rules will be passed in that form, so I'm not too worried.
For those of you who haven't seen the proposed rules, they're posted here.
The link is to the evaluation report, not to the news of the moratorium or ban.... Anyone have a link to that?
Thanks, zacronos.
Appreciate the good advice.
But to tell you the truth, I'd rather not do it, because (a) when I'm here I'm not practicing law, i.e. I'm not representing any client and I'm not giving anyone legal advice, (b) if anyone doesn't want to listen to me, that's their perogative, (c) being a lawyer doesn't give my words any added weight, a lawyer can be just as wrong as anybody else, and (d) if people want to disagree with me, or dump on me, that's fine, so long as they can back it up. Maybe they'll teach me something.
Apparently so. The idea that they would have one side of the dispute, in a disputed area of the law, dictate to impressionable kids what the law is, is astonishing, and certainly would count as a lesson in mindlessness and a textbook case of teaching them "not thinking independently".
In copyright infringement cases the Court does have discretion to award the winner legal fees. In this case we don't know what the settlement was since there was probably a settlement agreement, and we haven't seen what the settlement agreement says.
No I think it was not helpful at all to the RIAA, for the Government to seek to distance itself from the RIAA's main (indeed only) argument for the merit of its case.
I agree that a class action would be good. Am hopeful that the class action bar will take this up.