like all bullies they shy away from those who put up a good fight and pick on the more defenseless. Why risk a bloody nose when there are so many who see little choice but to just hand over their lunch money? Fortunately there are people like Ray and others who are demonstrating how to deal with them.
1. Thanks.
2. You've got their number. They are bullies, and like all bullies, are cowards.
Re: Sid Leach, the attorney who filed the motion:
I've personally worked closely with Sid on a case several years back where I was a technical consultant for the company I worked for on an IP case. Sid totally changed my opinion of lawyers for the better, and I seriously considered going to law school after my experience working with him. He's a super nice guy, and extremely smart.
We would meet late in the evening the night before a court appearance, and the next morning he would have a amazingly well written brief he stayed up all night writing based on the meeting the night before. If I ever need an IP attorney I would hire him in a second (If I could afford him). It's great to see him doing such important work.
I'm not surprised to hear that, Kevin. He is someone to be admired.
Good to know that in order to be eligible for Comcast service, you you must submit to the laws of China, North Korea, Iran, and the orders of every other petty dictator on the planet....
You forgot to mention the laws of the Intergalactic Federation under His Grand Emporer Malicon IX.
I for one welcome the total control of our totalitarian overlords.
Oh, I most certainly DO NOT believe anything the RIAA puts out for public relations. And, yes, I agree anything that goes counter to RIAA's wishes is great. My question, though, regards the treaty. If that treaty is signed, the courts will have very little to say, regarding enforcement.
The whole treaty thing comes up every time the RIAA lawyers make their frivolous "making available" argument, because there is a treaty that uses the term. Thing is, treaties don't supersede statutes.
True, there will be no sanctions. It does show that there's enough question in the RIAA's minds (or at least their lawyer's minds) that they are unwilling to have a judge look at sanctions for them. They had to know their reaction would tip their hand to other defendants, so they must have been particularly afraid that the judge would agree that their practices have been unethical.
Yes they knew. The case had been written up earlier, when Mr. Leach first came into the case to take over the representation of the defendant, who had been representing herself at first.
would it now be possible to put together a boilerplate response kit
A "boilerplate response kit"? No. A growing library of helpful materials to which the practitioner can refer? Yes. And the motion, discovery responses, discovery notices, and expert's report prepared by defendant's lawyer make an excellent contribution to that library.
which would vastly reduce the cost and time of putting up said credible resistance?
The library does indeed reduce the cost and time of defense, and increases the efficiency and effectiveness of our efforts.
Also, will the repeated threat of section 11 judgements affect the credibility of the RIAA's lawyers?
Their "credibility"? No. But an order awarding Rule 11 sanctions would have an effect on their credibility.
I guess you believed the RIAA's press release that they had stopped bringing new cases last August. In fact they've brought hundreds and hundreds of new cases and are continuing to prosecute cases with the same ruthlessness they've exhibited in the past. That, for me, is the relevancy. Anything that helps in the fight against these lawsuits is good news and, to me, at least, highly "relevant".
While it certainly would be nice to say, "Hold on there! Not so fast," and then slap the RIAA around a bit for being douchebags, I think that being served with Rule 11 papers will have some significant effects. Now that one person has done it, just watch as everyone else starts to do it, too. Perhaps the defendant's lawyer has found the RIAA's "kryptonite". (Or at least a big enough stick to fend them off.)
I wouldn't put it quite that dramatically, but I am sure that all lawyers representing defendants will take a page from the book of this outstanding attorney, not only in respect of the Rule 11 motion, but also his discovery notices, discovery responses, and expert's reports, links to all of which are provided in the article.
This by far the largest imbalance in the legal system.
If a big company/corporation/MAFIAA starts a lawsuit against an individual, it can easily bankrupt an individual in a short time period while being a drop in the bucket to the company/corporation.
The defendants in most of these cases loose considerably even if they have the lawsuit dropped somewhere in the process. They have almost no means to win, as the MAFIAA does everything it can to avoid paying out a cent while fleecing individuals.
So, just to get this straight, the RIAA pursued a questionable case that has already cost the defendant money to prepare for, and as soon as credible resistance emerges they quickly run and do it again to someone else - without sanctions?
Or did I miss something?
A few questions for anyone who might know:
1. Does voluntarily dismissing the case with prejudice prevent them from getting sanctioned?
Yes so long as they do it within the 21-day "safe harbor" period, which they did.
2. Independent of #1, what happens if you are sanctioned under Rule 11?
There are many possible penalties, from nominal to crushing... but for any attorney it's a huge black mark on his or her record.
3. How often is a party sanctioned this way?
Rarely. Rule 11 motions are rarely made. It is an extreme thing. I've only made a couple in my 30 years as a lawyer. One of them was against the RIAA lawyers.
First to NewYorkCountryLawyer, thanks from all of us for fighting the good fight!
Thanks. And thank you for your support.
And a question, what is the impact of these sanctions?
Sanctions weren't awarded; the motion was withdrawn because the RIAA, rather than risk sanctions, withdrew the case within the "safe harbor" period.
Could this cost the RIAA enough to really act as a deterrent?
Absolutely. There is nothing a lawyer should fear more than a sanctions ruling.
Also, if at all how is this relevant in future cases?
Highly relevant. This incident will encourage other defendant's lawyers to make early Rule 11 motions. And the attorney, veteran IP litigator Sid Leach, prepared excellent discovery documents and motion papers, which the rest of us will be able to consult and borrow from in the future.
The question should definitely be referred to a lawyer.
As a non-lawyer, I despise that answer.
Sorry, Rob_the_Bold, that is reality. If you don't like reality, don't shoot the messenger. If you think getting a consensus opinion on Slashdot is a smart way to proceed, I refer you to another comment I made in response to this story the other day.
1. Start a law practice, hang up a shingle. 2. Advertise that your practice is limited to handling litigations for people who got their legal advice by following the consensus opinion of comments modded "+3" or higher on Slashdot. 3. ??????? 4. Profit!
Your question is a purely legal question. You should be addressing it to your company's lawyer. And you need to provide that lawyer with all the materials.
If 300 members of Slashdot tell you you're in the right, and they all get modded up to "+5", that doesn't mean you're in the clear.
I think Obama is a pretty good guy but I'm puzzled why his number two and number three Department of Justice lawyers are ex-RIAA thugs.
I feel the same way. I don't know that these particular guys are "thugs", but my understanding is that Mr. Perrelli is the one who unleashed this reign of terror against working people, and I know that Mr. Verrilli went to Duluth to advance the frivolous "making available" theory.
If you challenge to the constitutional validity of a federal law, you can hardly feign surprise when the administration makes a submission to the contrary.
When did I purport to be surprised? I was not in the least bit surprised and have not "feigned" anything.
I find this to be one of the most unnerving acts of the current Administration. I absolutely do not want anyone who is on a first-name basis with the rest of the RIAA crowd anywhere near the Justice Department. People have to understand that influence can be subtle. A handshake, a phone call, a word put in the right ear... I don't care what rules Obama puts in place, these two attorneys should never have been appointed. The potential for corruption and malfeasance is too great. Why Obama couldn't see that is beyond me.
I'm presuming that this is some form of political payback. After all, there are plenty of other deserving attorneys who would have been better candidates, and I can see no other reason why ex-members of the RIAA (of all organizations) would have been selected. This really does not smell right to me at all.
Screwmaster, I know you know how I feel about the RIAA and its running dogs, and Mr. Perrelli was their chief running dog. From what I have read, he is actually the guy who started this madness, pitching it to the "Big 4" or the "RIAA" on behalf of Jenner & Block. And I know you know that I was disappointed that the Government sought to intervene on behalf of the RIAA's patently unconstitutional "statutory damages" theory. And I have no clue what goes on behind closed doors. But just to give the picture some balance, maybe playing "devil's advocate", let me just point out: -the brief is no different than what the Bush Administration DOJ would have filed, no better, and no worse; -Perrelli was a law school classmate of Obama, and was the coordinator of his transition team; it is highly unlikely that he was chosen BECAUSE he represented the RIAA; -Verrilli was Perrelli's partner, and was probably chosen because Perrelli wanted him, not because he represented the RIAA; and -the brief did ask the judge not to rule on the issue at all, but to wait and see if there was a way to avoid the constitutional question, since the constitutional question really only arises if and when a jury returns a verdict against the defendant, and does award plaintiffs 'statutory damages' (there is a very real possibility that the RIAA could win, but not be entitled to statutory damages, in which case there is no constitutional question at all, or that the RIAA could recover a total of $750 in statutory damages for the whole infringement case, in which there is a constitutional question but one of less import than a $10,000 verdict might invoke).
Slashdot Mirror
The **AA will wait for facebook to generate that ever elusive revenue before it tries to sue them...
That would be their style. Set the trap. Sit back. Wait a bit. Smile. Let the promotional value run its course. Then spring it.
I wonder what NewYorkCountryLawyer would say about this..
NewYorkCountryLawyer? He ain't sayin' nuttin'.
like all bullies they shy away from those who put up a good fight and pick on the more defenseless. Why risk a bloody nose when there are so many who see little choice but to just hand over their lunch money? Fortunately there are people like Ray and others who are demonstrating how to deal with them.
1. Thanks.
2. You've got their number. They are bullies, and like all bullies, are cowards.
The Obama DOJ has now filed a similar brief in another RIAA case.
Re: Sid Leach, the attorney who filed the motion: I've personally worked closely with Sid on a case several years back where I was a technical consultant for the company I worked for on an IP case. Sid totally changed my opinion of lawyers for the better, and I seriously considered going to law school after my experience working with him. He's a super nice guy, and extremely smart. We would meet late in the evening the night before a court appearance, and the next morning he would have a amazingly well written brief he stayed up all night writing based on the meeting the night before. If I ever need an IP attorney I would hire him in a second (If I could afford him). It's great to see him doing such important work.
I'm not surprised to hear that, Kevin. He is someone to be admired.
Good to know that in order to be eligible for Comcast service, you you must submit to the laws of China, North Korea, Iran, and the orders of every other petty dictator on the planet....
You forgot to mention the laws of the Intergalactic Federation under His Grand Emporer Malicon IX.
I for one welcome the total control of our totalitarian overlords.
Oh, I most certainly DO NOT believe anything the RIAA puts out for public relations. And, yes, I agree anything that goes counter to RIAA's wishes is great. My question, though, regards the treaty. If that treaty is signed, the courts will have very little to say, regarding enforcement.
The whole treaty thing comes up every time the RIAA lawyers make their frivolous "making available" argument, because there is a treaty that uses the term. Thing is, treaties don't supersede statutes.
True, there will be no sanctions. It does show that there's enough question in the RIAA's minds (or at least their lawyer's minds) that they are unwilling to have a judge look at sanctions for them. They had to know their reaction would tip their hand to other defendants, so they must have been particularly afraid that the judge would agree that their practices have been unethical.
Yes they knew. The case had been written up earlier, when Mr. Leach first came into the case to take over the representation of the defendant, who had been representing herself at first.
would it now be possible to put together a boilerplate response kit
A "boilerplate response kit"? No.
A growing library of helpful materials to which the practitioner can refer? Yes. And the motion, discovery responses, discovery notices, and expert's report prepared by defendant's lawyer make an excellent contribution to that library.
which would vastly reduce the cost and time of putting up said credible resistance?
The library does indeed reduce the cost and time of defense, and increases the efficiency and effectiveness of our efforts.
Also, will the repeated threat of section 11 judgements affect the credibility of the RIAA's lawyers?
Their "credibility"? No. But an order awarding Rule 11 sanctions would have an effect on their credibility.
I question the relevancy, NYCL.
I guess you believed the RIAA's press release that they had stopped bringing new cases last August. In fact they've brought hundreds and hundreds of new cases and are continuing to prosecute cases with the same ruthlessness they've exhibited in the past. That, for me, is the relevancy. Anything that helps in the fight against these lawsuits is good news and, to me, at least, highly "relevant".
While it certainly would be nice to say, "Hold on there! Not so fast," and then slap the RIAA around a bit for being douchebags, I think that being served with Rule 11 papers will have some significant effects. Now that one person has done it, just watch as everyone else starts to do it, too. Perhaps the defendant's lawyer has found the RIAA's "kryptonite". (Or at least a big enough stick to fend them off.)
I wouldn't put it quite that dramatically, but I am sure that all lawyers representing defendants will take a page from the book of this outstanding attorney, not only in respect of the Rule 11 motion, but also his discovery notices, discovery responses, and expert's reports, links to all of which are provided in the article.
RIAA radar is your friend. Look for the labels not on the MAFIAA's payroll and support them for doing something right.
You are so right esocid. I consult that site every day.
This by far the largest imbalance in the legal system. If a big company/corporation/MAFIAA starts a lawsuit against an individual, it can easily bankrupt an individual in a short time period while being a drop in the bucket to the company/corporation. The defendants in most of these cases loose considerably even if they have the lawsuit dropped somewhere in the process. They have almost no means to win, as the MAFIAA does everything it can to avoid paying out a cent while fleecing individuals.
You are exactly right. I discuss the economic imbalance problem, and the mischief it has caused, in detail, in the 'equal access to justice' issue of The Judges Journal, published by the American Bar Association, in my article, "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations".
This is my question to NYCL. Can a judge modify the order to require the plaintiff to pay for the defendants costs?
No.
If not, then the defendant is out the legal costs
Correct.
and this is really no victory what so ever
That's a matter of opinion.
because the RIAA can still use this case as leverage for their extortion scheme (pay us $5000 now or you will pay $20,000 whether you win or lose).
They would never use that terminology.
If I were a defendant in this situation, I would fight the motion for dismissal on those grounds.
Maybe. Maybe not.
I hope you never have to find out.
So, just to get this straight, the RIAA pursued a questionable case that has already cost the defendant money to prepare for, and as soon as credible resistance emerges they quickly run and do it again to someone else - without sanctions? Or did I miss something?
No you didn't miss anything.
I'd be curious to know if you have any wisdom to share regarding the new direction that RIAA seems to be taking.
The only wisdom I have to share at this point is : if you find out your ISP is in league with the RIAA, change ISP's, and let them know why you left.
A few questions for anyone who might know: 1. Does voluntarily dismissing the case with prejudice prevent them from getting sanctioned?
Yes so long as they do it within the 21-day "safe harbor" period, which they did.
2. Independent of #1, what happens if you are sanctioned under Rule 11?
There are many possible penalties, from nominal to crushing... but for any attorney it's a huge black mark on his or her record.
3. How often is a party sanctioned this way?
Rarely. Rule 11 motions are rarely made. It is an extreme thing. I've only made a couple in my 30 years as a lawyer. One of them was against the RIAA lawyers.
First to NewYorkCountryLawyer, thanks from all of us for fighting the good fight!
Thanks. And thank you for your support.
And a question, what is the impact of these sanctions?
Sanctions weren't awarded; the motion was withdrawn because the RIAA, rather than risk sanctions, withdrew the case within the "safe harbor" period.
Could this cost the RIAA enough to really act as a deterrent?
Absolutely. There is nothing a lawyer should fear more than a sanctions ruling.
Also, if at all how is this relevant in future cases?
Highly relevant. This incident will encourage other defendant's lawyers to make early Rule 11 motions. And the attorney, veteran IP litigator Sid Leach, prepared excellent discovery documents and motion papers, which the rest of us will be able to consult and borrow from in the future.
The question should definitely be referred to a lawyer.
As a non-lawyer, I despise that answer.
Sorry, Rob_the_Bold, that is reality. If you don't like reality, don't shoot the messenger. If you think getting a consensus opinion on Slashdot is a smart way to proceed, I refer you to another comment I made in response to this story the other day.
1. Start a law practice, hang up a shingle.
2. Advertise that your practice is limited to handling litigations for people who got their legal advice by following the consensus opinion of comments modded "+3" or higher on Slashdot.
3. ???????
4. Profit!
Thanks, Jane Q. The question should definitely be referred to a lawyer.
Your question is a purely legal question. You should be addressing it to your company's lawyer. And you need to provide that lawyer with all the materials.
If 300 members of Slashdot tell you you're in the right, and they all get modded up to "+5", that doesn't mean you're in the clear.
I think Obama is a pretty good guy but I'm puzzled why his number two and number three Department of Justice lawyers are ex-RIAA thugs.
I feel the same way. I don't know that these particular guys are "thugs", but my understanding is that Mr. Perrelli is the one who unleashed this reign of terror against working people, and I know that Mr. Verrilli went to Duluth to advance the frivolous "making available" theory.
If you challenge to the constitutional validity of a federal law, you can hardly feign surprise when the administration makes a submission to the contrary.
When did I purport to be surprised? I was not in the least bit surprised and have not "feigned" anything.
I find this to be one of the most unnerving acts of the current Administration. I absolutely do not want anyone who is on a first-name basis with the rest of the RIAA crowd anywhere near the Justice Department. People have to understand that influence can be subtle. A handshake, a phone call, a word put in the right ear ... I don't care what rules Obama puts in place, these two attorneys should never have been appointed. The potential for corruption and malfeasance is too great. Why Obama couldn't see that is beyond me.
I'm presuming that this is some form of political payback. After all, there are plenty of other deserving attorneys who would have been better candidates, and I can see no other reason why ex-members of the RIAA (of all organizations) would have been selected. This really does not smell right to me at all.
Screwmaster, I know you know how I feel about the RIAA and its running dogs, and Mr. Perrelli was their chief running dog. From what I have read, he is actually the guy who started this madness, pitching it to the "Big 4" or the "RIAA" on behalf of Jenner & Block. And I know you know that I was disappointed that the Government sought to intervene on behalf of the RIAA's patently unconstitutional "statutory damages" theory. And I have no clue what goes on behind closed doors. But just to give the picture some balance, maybe playing "devil's advocate", let me just point out:
-the brief is no different than what the Bush Administration DOJ would have filed, no better, and no worse;
-Perrelli was a law school classmate of Obama, and was the coordinator of his transition team; it is highly unlikely that he was chosen BECAUSE he represented the RIAA;
-Verrilli was Perrelli's partner, and was probably chosen because Perrelli wanted him, not because he represented the RIAA; and
-the brief did ask the judge not to rule on the issue at all, but to wait and see if there was a way to avoid the constitutional question, since the constitutional question really only arises if and when a jury returns a verdict against the defendant, and does award plaintiffs 'statutory damages' (there is a very real possibility that the RIAA could win, but not be entitled to statutory damages, in which case there is no constitutional question at all, or that the RIAA could recover a total of $750 in statutory damages for the whole infringement case, in which there is a constitutional question but one of less import than a $10,000 verdict might invoke).