Oh, man... corrected by the expert himself...
http://www.law.cornell.edu/rules/frcp/Rule11.htm [cornell.edu]
So, a Rule 11 motion simply means that the opponent may be sanctioned for breaking any other rule, if deemed appropriate, correct?
If so, what exactly was the sanction for, and if it goes through, what implications might it have outside of this case?
The Rule 11 motion was based on the deliberate false statements of fact contained in the RIAA's motion. My Declaration of Ray Beckerman in opposition enumerates, in detail, the false statements, and the true facts.
I am curious what NYCL thinks about "loser pays" though.
I'm not in favor of it. I think it ups the ante, and therefore makes it even harder for people without lots of money to have access to the courts. Copyright law in the US does, however, have a modified "loser pays" rule; the prevailing party may be entitled to attorneys fees.
Glad to hear NYCL. Whenever I want to find out what is up with the RIAA, I go to you first. You do a great job and please keep it up:)
Thank you, Tigersmind. Much appreciated. I notice that some of the readers are still believing what is in the article, instead of believing my report. The Rule 11 motion has not been ruled upon by Magistrate Levy.
...if you're not getting shot at, you're not doing your job right."
Seriously, I think it's great that the RIAA has decided that Mr. Beckerman is enough of a threat to where he needs to be silenced. Don't you? That means he's on to something. He's hit them in a sensitive spot. The enemy has let us know that something has hurt them. And that something is exposure and scrutiny. Enough of that and one day their racket will be over. That's what they fear. The Truth. They know it, and now we know it.
So keep it up NYCL! We're all rooting for you!
Thank you Weaselmancer, much appreciated. Damned right I'm "on to something". The truth, which, as you accurately observe, is what they fear. Like vampires & ghouls fear the light of day, the RIAA lawyers fear the truth.
Ray Beck[er]man has been fighting an uphill battle against the recording industry for years, and it's past time he got a bit more recognition for his efforts. A lot of people don't appreciate that every time one of the RIAA's outrageous tactics receives even limited support in a court of law, that tactic will inevitably make its way into normal corporate practice.
This struggle is about a lot more than alleged theft of music. It's about abuse of the legal system by corporations and individuals with deep pockets as they enforce their will on average people by threatening to bankrupt them in court if they dare to fight back against blatantly unfair practices.
I have great respect for Ray Beck[er]man. We need a thousand more like him.
For a more accurate and detailed article on the Magistrate Judge's decision I recommend my own Slashdot submission from last Friday, which Slashdot rejected: "RIAA's "Sanctions" Motion in Lindor Denied"
Not so. The Magistrate Judge recommended denial of the RIAA's motion for "discovery sanctions". He did not rule on Ms. Lindor's Rule 11 motion for sanctions against the RIAA lawyers. That motion is still pending.
I don't understand the statement that some "counterclaim" was dismissed.
The defendant did not have any counterclaims.
She did make a Rule 11 motion for sanctions against the RIAA's attorneys.
That motion is still pending.
If they stop winning, they won't keep throwing cash at the lawyers.
I wouldn't say they keep "winning". They've had 2 trials, in 1 of which the defendant admitted liability. In most contested cases they've discontinued the case, scurrying away with their tails between their legs.
When I said "no charge" I was humorously responding to his humorous statement "IANAL - nor can I afford one to answer this question". Sorry if you didn't get that we were both kidding.
I am not an lawyer either, but the concept between a "matter of law" and a "matter of fact" is pretty basic.
Matters of fact: "I didn't do it." "Yes you did."
Matters of law: "Of course I did it; it ain't against the law, bub!" "Yes it is".
In this case, the fact that internet radio stations were broadcasting copyrighted material (for which they had the proper licenses) was not in doubt. The question was one of law: is that an "interactive service" or not, which has additional restrictions on it?
In the context in which it was said in this case, it meant simply that there was no factual issue, that under the conceded undisputed facts, it was not interactive, no matter how you slice it.
The last line of the ruling says: The district court's judgment of May 16, 2007 in favor 15 of Appellee is hereby AFFIRMED with costs.
Does this mean the RIAA pays the victim's court costs?
In that context, it just referred to certain costs incurred in connection with the appeal. But under the Copyright Act the plaintiffs may indeed be liable for defendant's attorneys fees.
What does "as a matter of law" really mean? How does it differ from "as a matter of fact"? IANAL - nor can I afford one to answer this question.
:) It means that there is no factual "issue" for the jury to resolve. I.e., that based upon the known facts, it is automatic that this is not "interactive" within the meaning of the statute.
1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.
Can those rules actually be followed? I mean the DOJ shouldn't be weighing in on a civil case in the first place but what would you do when you know you bosses have a certain position and they are refrained from acting for some reason outside their own? I mean you still report to them, you still rely on them for performance reviews, raises and so on to some extent. You still have to worry about the boss retaliating in some way, can you really isolate them?
I don't know. I can tell you that guy who signed the brief as the top leading signatory is a content industry lawyer.
Does anybody know if this woman is accepting contributions?
Maybe the proper way to fight this BS could be to put our money where our mouth is. I would certainly send some money to support her.
I'm sure you could send the contribution to her attorneys.
In my personal opinion, the best place to which to make contributions to fight the RIAA scourge is to make a tax deductible contribution to the Expert Witness Defense Fund managed by the Free Software Foundation. All the proceeds of the contributions will go to helping RIAA defendants retain the help of tech experts and tech consultants. They made a $3000 grant to Ms. Thomas to enable her to hire an expert witness.
The story seems to suggest that the DOJ said that a $1.92 million was perfectly constitutional. My interpretation of the brief seems that the DOJ did not specifically say that.
While you are correct that it did not specifically say that, it did say that the verdict passes constitutional muster. When it said this:
This discussion is not to suggest an answer of whether an award should be remitted in this particular case, but rather to suggest an answer to such a question should precede any resolution of Ms. Thomas' constitutional arguments.
it was referring to a non-constitutional, "common law", ground for setting aside the verdict. It did specifically say that if the Court does not find a "common law" ground for setting the verdict aside, it should let the verdict stand, which is tantamount to saying that the verdict passes constitutional muster, which any honest lawyer knows it does not.
Confirmation that trolls cannot read. Please quote where NYCL said the proper fine was $.99 per song.
:) Thanks. I have no problem with the concept of statutory damages; I have been working with it for 35 years.
Thing is, as a matter of copyright law, the courts have consistently held that the statutory damages awarded must bear a reasonable relationship to the actual damages, must be "woven from the same bolt of cloth", and cannot be divorced from economic reality. Under that principle the judge should not have allowed the jury to come back with a verdict exceeding the statutory minimum of $750 per infringed "work". [p.s. 3 songs from 1 album = 1 work].
Then, as a matter of constitutional law, the verdict should have been struck down further to a number, consistent with the US Supreme Court's "due process" jurisprudence, which was less than 10 times the amount of the actual damages. Under that jurisprudence, UMG Recordings recently argued -- when it was a defendant in a Tennessee case -- that 10 times actual damage was unconstitional, and the Court agreed, concluding that the verdict could not exceed 2 times the actual damage.
This really is a terrible stance by the DOJ. Punitive rulings are blatantly unconstitutional, and effectively punish a person for what others might do. It's also completely pointless. Few, if any, regular people have anywhere near that kind of money. All that will happen if this stands is a time in bankruptcy court, which accomplishes absolutely nothing. They might as well raise the damages to fifty billion dollars under the same logic... considering: if one large amount will deter others, then an even larger amount is even better, right?
I honestly don't understand where this is going.
1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.
Can those rules actually be followed? I mean the DOJ shouldn't be weighing in on a civil case in the first place but what would you do when you know you bosses have a certain position and they are refrained from acting for some reason outside their own? I mean you still report to them, you still rely on them for performance reviews, raises and so on to some extent. You still have to worry about the boss retaliating in some way, can you really isolate them?
I suppose this is what happens when you appoint a half-dozen ex-RIAA attorneys to top spots in the Justice Department. President Obama assured us that rules were put into place to prevent this sort of activity, but apparently that doesn't matter. Not that I'm the least bit surprised by that. Frankly, I think the Justice Department should have better things to occupy their time than civil lawsuits. That kind of bias ought to be considered malfeasance in office, or something else worthy of immediate dismissal.
1.92 million dollars for copyright violations by an individual? Now that's Justice for you. Personally, I've never believed that the law should be used to make examples out of people, no matter how distasteful their crimes. That simply breeds more disrespect for the law, which is something the RIAA is apparently unable to understand. They will continue to reap the rewards of that lack of understanding, regardless of what ultimately happens to Jammie Thomas.
What really goes on at DOJ, I can't say, but I will point out the following:
1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.
2. The brief's arguments are not dissimilar to the arguments made by the Bush administration when they filed their brief on this issue (pdf) in 2007.
Also interesting in the DOJ's brief is that it totally ignores the actual wording and reasoning of the Supreme Court's "due process" jurisprudence concerning "punitive awards", which we have pointed out in the past. Presumably Ms. Thomas-Rasset's lawyers will bring this to the Court's attention.
When I'm practicing law, my appraisal of the mistakes of my adversary is not something I would discuss; I am there to point out the law and the facts and to advocate on the basis of the law and the facts. If my adversary has made a mistake, so be it, but there is not much to be gained in pointing out to the Court that the other side has inferior representation.
When, on the other hand, I am a blogger or other commentator writing about legal events, it comes up from time to time -- more so in this case than in any other case upon which I have reported -- to mention omissions or mistakes by counsel and/or by judges. Were I to exercise a "professional courtesy" and refrain from pointing them out, I would be betraying the trust of my readers.
If you really care to understand, you need to separate the practice of law from the practice of journalism.
I have one frequent critic who loves to disingenuously cross the line between the two in mounting his attacks; I hope you are not he.
Slashdot Mirror
Oh, man... corrected by the expert himself... http://www.law.cornell.edu/rules/frcp/Rule11.htm [cornell.edu] So, a Rule 11 motion simply means that the opponent may be sanctioned for breaking any other rule, if deemed appropriate, correct? If so, what exactly was the sanction for, and if it goes through, what implications might it have outside of this case?
The Rule 11 motion was based on the deliberate false statements of fact contained in the RIAA's motion. My Declaration of Ray Beckerman in opposition enumerates, in detail, the false statements, and the true facts.
I am curious what NYCL thinks about "loser pays" though.
I'm not in favor of it. I think it ups the ante, and therefore makes it even harder for people without lots of money to have access to the courts. Copyright law in the US does, however, have a modified "loser pays" rule; the prevailing party may be entitled to attorneys fees.
Glad to hear NYCL. Whenever I want to find out what is up with the RIAA, I go to you first. You do a great job and please keep it up :)
Thank you, Tigersmind. Much appreciated. I notice that some of the readers are still believing what is in the article, instead of believing my report. The Rule 11 motion has not been ruled upon by Magistrate Levy.
...if you're not getting shot at, you're not doing your job right." Seriously, I think it's great that the RIAA has decided that Mr. Beckerman is enough of a threat to where he needs to be silenced. Don't you? That means he's on to something. He's hit them in a sensitive spot. The enemy has let us know that something has hurt them. And that something is exposure and scrutiny. Enough of that and one day their racket will be over. That's what they fear. The Truth. They know it, and now we know it. So keep it up NYCL! We're all rooting for you!
Thank you Weaselmancer, much appreciated. Damned right I'm "on to something". The truth, which, as you accurately observe, is what they fear. Like vampires & ghouls fear the light of day, the RIAA lawyers fear the truth.
Ray Beck[er]man has been fighting an uphill battle against the recording industry for years, and it's past time he got a bit more recognition for his efforts. A lot of people don't appreciate that every time one of the RIAA's outrageous tactics receives even limited support in a court of law, that tactic will inevitably make its way into normal corporate practice. This struggle is about a lot more than alleged theft of music. It's about abuse of the legal system by corporations and individuals with deep pockets as they enforce their will on average people by threatening to bankrupt them in court if they dare to fight back against blatantly unfair practices. I have great respect for Ray Beck[er]man. We need a thousand more like him.
Thank you, hyades1. Much appreciated. You are so right about this being an "abuse of the legal system by corporations... with deep pockets". I wrote an article for the ABA's Judges Journal, last year, about that very subject : "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations". I am so grateful for the fine lawyers who have joined me in this struggle, fighting for principle.
For a more accurate and detailed article on the Magistrate Judge's decision I recommend my own Slashdot submission from last Friday, which Slashdot rejected: "RIAA's "Sanctions" Motion in Lindor Denied"
He outed himself a long time ago as I recall. All of his posts have his webpage in his signature line. His webpage has his name on it.
Correct. I have never been anonymous on Slashdot.
the judge dismissed both sides' complaints
Not so. The Magistrate Judge recommended denial of the RIAA's motion for "discovery sanctions". He did not rule on Ms. Lindor's Rule 11 motion for sanctions against the RIAA lawyers. That motion is still pending.
I don't understand the statement that some "counterclaim" was dismissed. The defendant did not have any counterclaims. She did make a Rule 11 motion for sanctions against the RIAA's attorneys. That motion is still pending.
If they stop winning, they won't keep throwing cash at the lawyers.
I wouldn't say they keep "winning". They've had 2 trials, in 1 of which the defendant admitted liability. In most contested cases they've discontinued the case, scurrying away with their tails between their legs.
When I said "no charge" I was humorously responding to his humorous statement "IANAL - nor can I afford one to answer this question". Sorry if you didn't get that we were both kidding.
I am not an lawyer either, but the concept between a "matter of law" and a "matter of fact" is pretty basic. Matters of fact: "I didn't do it." "Yes you did." Matters of law: "Of course I did it; it ain't against the law, bub!" "Yes it is". In this case, the fact that internet radio stations were broadcasting copyrighted material (for which they had the proper licenses) was not in doubt. The question was one of law: is that an "interactive service" or not, which has additional restrictions on it?
In the context in which it was said in this case, it meant simply that there was no factual issue, that under the conceded undisputed facts, it was not interactive, no matter how you slice it.
The last line of the ruling says: The district court's judgment of May 16, 2007 in favor 15 of Appellee is hereby AFFIRMED with costs. Does this mean the RIAA pays the victim's court costs?
In that context, it just referred to certain costs incurred in connection with the appeal. But under the Copyright Act the plaintiffs may indeed be liable for defendant's attorneys fees.
What does "as a matter of law" really mean?
How does it differ from "as a matter of fact"?
IANAL - nor can I afford one to answer this question.
:) It means that there is no factual "issue" for the jury to resolve. I.e., that based upon the known facts, it is automatic that this is not "interactive" within the meaning of the statute.
No charge.
1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.
Can those rules actually be followed? I mean the DOJ shouldn't be weighing in on a civil case in the first place but what would you do when you know you bosses have a certain position and they are refrained from acting for some reason outside their own? I mean you still report to them, you still rely on them for performance reviews, raises and so on to some extent. You still have to worry about the boss retaliating in some way, can you really isolate them?
I don't know. I can tell you that guy who signed the brief as the top leading signatory is a content industry lawyer.
Does anybody know if this woman is accepting contributions? Maybe the proper way to fight this BS could be to put our money where our mouth is. I would certainly send some money to support her.
I'm sure you could send the contribution to her attorneys.
In my personal opinion, the best place to which to make contributions to fight the RIAA scourge is to make a tax deductible contribution to the Expert Witness Defense Fund managed by the Free Software Foundation. All the proceeds of the contributions will go to helping RIAA defendants retain the help of tech experts and tech consultants. They made a $3000 grant to Ms. Thomas to enable her to hire an expert witness.
The story seems to suggest that the DOJ said that a $1.92 million was perfectly constitutional. My interpretation of the brief seems that the DOJ did not specifically say that.
While you are correct that it did not specifically say that, it did say that the verdict passes constitutional muster. When it said this:
This discussion is not to suggest an answer of whether an award should be remitted in this particular case, but rather to suggest an answer to such a question should precede any resolution of Ms. Thomas' constitutional arguments.
it was referring to a non-constitutional, "common law", ground for setting aside the verdict. It did specifically say that if the Court does not find a "common law" ground for setting the verdict aside, it should let the verdict stand, which is tantamount to saying that the verdict passes constitutional muster, which any honest lawyer knows it does not.
Don't give the DoJ shit for upholding the act as it's written.
That's not what they were doing. They were also upholding the verdict "as applied". They didn't have to do that.
Confirmation that trolls cannot read. Please quote where NYCL said the proper fine was $.99 per song.
:) Thanks. I have no problem with the concept of statutory damages; I have been working with it for 35 years.
Thing is, as a matter of copyright law, the courts have consistently held that the statutory damages awarded must bear a reasonable relationship to the actual damages, must be "woven from the same bolt of cloth", and cannot be divorced from economic reality. Under that principle the judge should not have allowed the jury to come back with a verdict exceeding the statutory minimum of $750 per infringed "work". [p.s. 3 songs from 1 album = 1 work].
Then, as a matter of constitutional law, the verdict should have been struck down further to a number, consistent with the US Supreme Court's "due process" jurisprudence, which was less than 10 times the amount of the actual damages. Under that jurisprudence, UMG Recordings recently argued -- when it was a defendant in a Tennessee case -- that 10 times actual damage was unconstitional, and the Court agreed, concluding that the verdict could not exceed 2 times the actual damage.
This really is a terrible stance by the DOJ. Punitive rulings are blatantly unconstitutional, and effectively punish a person for what others might do. It's also completely pointless. Few, if any, regular people have anywhere near that kind of money. All that will happen if this stands is a time in bankruptcy court, which accomplishes absolutely nothing. They might as well raise the damages to fifty billion dollars under the same logic... considering: if one large amount will deter others, then an even larger amount is even better, right? I honestly don't understand where this is going.
Maybe this guy can tell us.
1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.
Can those rules actually be followed? I mean the DOJ shouldn't be weighing in on a civil case in the first place but what would you do when you know you bosses have a certain position and they are refrained from acting for some reason outside their own? I mean you still report to them, you still rely on them for performance reviews, raises and so on to some extent. You still have to worry about the boss retaliating in some way, can you really isolate them?
I don't know. I just discovered this
I just learned that the lead signatory on the DOJ's brief has a content industry background and recently recused himself in another case.
I suppose this is what happens when you appoint a half-dozen ex-RIAA attorneys to top spots in the Justice Department. President Obama assured us that rules were put into place to prevent this sort of activity, but apparently that doesn't matter. Not that I'm the least bit surprised by that. Frankly, I think the Justice Department should have better things to occupy their time than civil lawsuits. That kind of bias ought to be considered malfeasance in office, or something else worthy of immediate dismissal. 1.92 million dollars for copyright violations by an individual? Now that's Justice for you. Personally, I've never believed that the law should be used to make examples out of people, no matter how distasteful their crimes. That simply breeds more disrespect for the law, which is something the RIAA is apparently unable to understand. They will continue to reap the rewards of that lack of understanding, regardless of what ultimately happens to Jammie Thomas.
What really goes on at DOJ, I can't say, but I will point out the following:
1. If President Obama's rules are being applied, the six or more ex-RIAA attorneys were recused from dealing with this case, and had nothing to do with the brief.
2. The brief's arguments are not dissimilar to the arguments made by the Bush administration when they filed their brief on this issue (pdf) in 2007.
3. In the important Cartoon Networks v. CSC Holdings case, the Solicitor General filed a brief which directly contravened the positions the RIAA's lawyers had taken in that very case. (See Slashdot discussion.)
Interestingly, the DOJ brief asks the Court not to decide the constitutional question, requesting the Court to instead decide the issue on "common law" grounds, i.e. whether the award "shocks the conscience".
Also interesting in the DOJ's brief is that it totally ignores the actual wording and reasoning of the Supreme Court's "due process" jurisprudence concerning "punitive awards", which we have pointed out in the past. Presumably Ms. Thomas-Rasset's lawyers will bring this to the Court's attention.
When I'm practicing law, my appraisal of the mistakes of my adversary is not something I would discuss; I am there to point out the law and the facts and to advocate on the basis of the law and the facts. If my adversary has made a mistake, so be it, but there is not much to be gained in pointing out to the Court that the other side has inferior representation.
When, on the other hand, I am a blogger or other commentator writing about legal events, it comes up from time to time -- more so in this case than in any other case upon which I have reported -- to mention omissions or mistakes by counsel and/or by judges. Were I to exercise a "professional courtesy" and refrain from pointing them out, I would be betraying the trust of my readers.
If you really care to understand, you need to separate the practice of law from the practice of journalism.
I have one frequent critic who loves to disingenuously cross the line between the two in mounting his attacks; I hope you are not he.