I'd expect the decision to hinge on whether the arguments might have to expose some information that should be under seal.
And I fail to see how anything like that might come up in a constitutionality-of-statutory-damages argument.
But IANAL.
There is no way anything like that might come up. The RIAA lawyers just don't want the public to see what goes on in these cases, and don't want the defendants' lawyers in other cases to have access to the information.
Uhmmm... yes.. forgot.... the Oppenheim effect....
It will be interesting effect to observe when Professor Nesson's team finally get their opportunity to cross examine Matthew Oppenheim.
Yes well in that case, the Oppenheim theorem will probably be of little use to you.
You will need to substitute the Great Wall theorem:
When questions are asked, no answers are given.
As you can see, the applicability of the Great Wall theorem renders the Oppenheim theorem useless in such situations.
I can see you have much to learn about the RIAA litigation process.
.... its only been a few weeks and you seem to have forgotten a key reason why there is no need for these defendants to be heard before a judge.
Come on Ray... you know the RIAA aren't filing any more lawsuits, right? They told us so!!
Yes but you fail to take into account the Oppenheim theorem; I'm surprised at your lack of mathematical knowledge. The Oppenheim theorem, named after the RIAA's 'prince of darkness' Matthew Oppenheim, is as follows:
1. The opposite of anything said by an RIAA spokesman = the Truth. 2. An RIAA spokesman said to congressional committees "we discontinued initiating new lawsuits in August". 3. Therefore the Truth must be that hundreds of new cases have been commenced since August, and cases are even being commenced this month.
(I cheated and did some independent investigation, just to see if it does work. I am proud to say the theorem continues to serve its purpose, which is to enable us to learn the Truth. The real value of this theorem is its practical application which is to save time. Instead of looking things up, researching, investigating, doing depositions, etc., we can just find out the Truth with this simple equation. And its success rate is astounding.)
Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.
Didn't some federal judge tell them not to do that?
Yes. (I like it when people do their homework; good work Thinboy.) The judges in Austin Texas in 2004 told them to cease and desist from that practice. They've been ignoring it ever since. In those rare instances when a "John Doe" is lucky enough to get legal representation, the judges usually sever as to the improperly joined John Does. But NO judge should be allowing it, whether the Does have lawyers or not.
When forced to go back to Austin, Texas, and face those same judges, they dropped the case against that ISP; I guess they didn't like the idea of winding up in a Texas federal jail.
Alright, it's time to shut up with the frigging questions already. Does this look like an AskSlashdot or Ask So-And-So story? No. So ixnay with the on-topic banter already, so the funny yet completely irrelevant posts can get some well deserved mod points. If Taco sees the completely skewed ratio of Funny to Interesting posts for this story he'll have to start deleting crap, and then all your typing will be for naught. I'm already starting to have dirty voyeur feelings like I've hacked into NewYorkCountryLawyer's gmail account. So enough already.
I think you're wrong about this. If there were a minimum Funny-to-Interesting ratio, I'd have been banned from Slashdot quite a while ago.
But since we're on the suing individual uploaders path, lets examine that:
1) laughable standards of evidence gathering. Infringement notices sent to network printers, or even people sharing their own work with a vaguely similar name to something else.
2) Arguably illegal methods of evidence gathering, certainly unlicenced investigators
3) abuse of due process to get default judgements before the defendent even knows they're being sued
4) going after innocent people when it's clear they're innocent; grannies sued for the use of windows software on her mac
5) going after people, no matter the method. Suing dead people, or after losing the case against the parent, refile against the under-age kids
6) extortion; pay a fine now to our settlement centre, or face huge court costs regardless of your innocence
7) blatant lies in court, with technical 'experts' not even considering alternative explanations (unsecured wireless etc), the misrepresentation of 'making available', etc etc
8) going after alleged infringers for huge fines; civil cases are supposedly about making good the plaintiff's losses, instead they want judgements running to hundreds of thousands times their actual losses
9) other abuses of the political and legal system, like root-kits, lobbying for the right to destroy alledged infringers computers remotely, or the three-strikes laws with no evidence required to cut people off the internet at will,
ever increasing retroactive copyright terms, destroying the public domain.
10) doing everything in their power to destroy or limit legitimate alternatives to their current system; hulu/boxee, raising the prices on itunes, DRM, massive rate hikes for online radio, the PRS and google music videos, the list goes on and on.
11) still treating the actual artists like crap, screwing them out of even the small amounts they're contracted to pay for say, online radio
arkhan, you have been doing your reading, haven't you? Nice.
It says in TFA that SUNY told the students they were intending to comply with the motion to identify
That's AFTER the motion had already been granted. I.e., the RIAA made a motion; no copies were served on anybody; it was just the RIAA and the judge; the judge let them get away with that, and signed the order granting the motion for discovery and ordering the students' identities to be divulged.
Only AFTER losing a motion they never even knew existed, were the students advised they'd lost. Then, on probably a couple of days notice, they had to get a lawyer to step in and make a motion to vacate. But getting a judge to change his or her mind after he or she has already ruled on something is much different than getting a judge not to go in that direction in the first place.
There is no reason in the world why the RIAA could not have made the motion on notice. If it wanted to sue 16 John Does it could have given the university 16 copies of the motion papers and supporting documents to distribute to them. The judge should have insisted on that. Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.
Personally, I'd have no problem with the RIAA if the damages sought were in any way related to any plausible cost. $2.97 per song shared. Assume that each file represents a lost sale and get triple damages because it's wilful infringement.
If you read up on all the procedural unfairness about the way they go about it, or all of the sloppiness in their methods, and their lack of concern for whether the defendant is innocent or not, I think you would have a "problem" -- even if the measure of damages they sought was rational instead of absurd.
http://interviews.slashdot.org/article.pl?sid=06/09/13/1627205 [slashdot.org] There is the interview. It is getting a little old, but you may find it interesting. I see Ray already responded to you.
Gets a little old? I remember it like it was yesterday. The wounds still haven't healed.
Mr. Beckerman: I'm a law student (graduating this year, economy be damned). I still cant figure out how exactly the Doe D's are able to respond if the initial pleading doesn't identify them. Is it up to the service provider to pass through notice to the Does? Once a Doe receives notice, assuming he does before default judgment is entered, how does the Doe respond without identifying himself or entering an "appearance" and basically waiving jurisdiction? I'm sure I'm missing something procedurally here, hope you can point me in the right direction.
You're not missing anything. The RIAA lawyers have been missing something. And unfortunately many of the judges have been missing something.
As you have learned in law school, it is of the essence of the American judicial system that BEFORE JUDICIAL ACTION IS TAKEN AGAINST SOMEONE THEY MUST BE GIVEN NOTICE, AND AN OPPORTUNITY TO BE HEARD.
Do you think there's any chance at all the 2nd Circuit Appeals court will actually rule on some of the other issues at hand
And why wouldn't they? -The issues are squarely presented. -After 40,000 cases, there is ZERO appellate authority. -The 2nd Circuit is considered by many to be the leading copyright court in the country.
Late 2004 or early 2005. I heard about these RIAA cases from the Electronic Frontier Foundation, knew they were BS procedurally and substantively, thought to myself 'I'm a litigator, I'm a copyright lawyer, and I hate bullies... maybe I can help some of these folks.' Next thing I knew I was up to my neck in it.
And I'm especially pleased that the defendant's lawyer is Richard Altman, because he is an excellent attorney; he was actually working against the RIAA's madness even before I got into the fight. He is a brilliant, and highly principled, guy.
With all of the chatter about the merits and viability of the tax credit, I'm surprised at the lack of comment on the preamble. Regardless whether the proposed legislation makes it, as a resident of NYS, I'm really encouraged to hear that the Assembly "Gets It" when it comes to *using* OSS. That's not "proposed" -- they've already made OSS a significant part of how they get things done. This is a *huge* win in mindset, and will have positive effects (even indirect ones) beyond any small tax credit.
Excellent point, Outlaw. It demonstrates an understanding of some of the important contributions that are being made by open source.
By the way, for those of you anxious to know the background of how an Assemblyman named Jonathan Bing got into this issue, I should mention that
(a) the guy with the idea behind this bill was "open government", "open access to court records", "open source", "open everything" activist Carl Malamud, who was most recently in the news when Congressmen and Senators started picking up his thread about making PACER -- i.e. court records -- free (as in beer); and
(b) the guy who helped usher this through, and put together the details, and get the Assemblymen to put their backs behind this, in the halls of government, is a very dynamic young geek and Slashdotter named Benjamin Kallos (like myself a Bronx High School of Science grad) who until recently was working for Assemblyman Bing but is now running for City Council in Manhattan.
Slashdot Mirror
I'd expect the decision to hinge on whether the arguments might have to expose some information that should be under seal.
And I fail to see how anything like that might come up in a constitutionality-of-statutory-damages argument. But IANAL.
There is no way anything like that might come up. The RIAA lawyers just don't want the public to see what goes on in these cases, and don't want the defendants' lawyers in other cases to have access to the information.
Uhmmm ... yes .. forgot .... the Oppenheim effect ....
It will be interesting effect to observe when Professor Nesson's team finally get their opportunity to cross examine Matthew Oppenheim.
Yes well in that case, the Oppenheim theorem will probably be of little use to you.
You will need to substitute the Great Wall theorem:
When questions are asked, no answers are given.
As you can see, the applicability of the Great Wall theorem renders the Oppenheim theorem useless in such situations.
I can see you have much to learn about the RIAA litigation process.
.... its only been a few weeks and you seem to have forgotten a key reason why there is no need for these defendants to be heard before a judge. Come on Ray ... you know the RIAA aren't filing any more lawsuits, right? They told us so!!
Yes but you fail to take into account the Oppenheim theorem; I'm surprised at your lack of mathematical knowledge. The Oppenheim theorem, named after the RIAA's 'prince of darkness' Matthew Oppenheim, is as follows:
1. The opposite of anything said by an RIAA spokesman = the Truth.
2. An RIAA spokesman said to congressional committees "we discontinued initiating new lawsuits in August".
3. Therefore the Truth must be that hundreds of new cases have been commenced since August, and cases are even being commenced this month.
(I cheated and did some independent investigation, just to see if it does work. I am proud to say the theorem continues to serve its purpose, which is to enable us to learn the Truth. The real value of this theorem is its practical application which is to save time. Instead of looking things up, researching, investigating, doing depositions, etc., we can just find out the Truth with this simple equation. And its success rate is astounding.)
Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.
Didn't some federal judge tell them not to do that?
Yes. (I like it when people do their homework; good work Thinboy.) The judges in Austin Texas in 2004 told them to cease and desist from that practice. They've been ignoring it ever since. In those rare instances when a "John Doe" is lucky enough to get legal representation, the judges usually sever as to the improperly joined John Does. But NO judge should be allowing it, whether the Does have lawyers or not.
When forced to go back to Austin, Texas, and face those same judges, they dropped the case against that ISP; I guess they didn't like the idea of winding up in a Texas federal jail.
Alright, it's time to shut up with the frigging questions already. Does this look like an AskSlashdot or Ask So-And-So story? No. So ixnay with the on-topic banter already, so the funny yet completely irrelevant posts can get some well deserved mod points. If Taco sees the completely skewed ratio of Funny to Interesting posts for this story he'll have to start deleting crap, and then all your typing will be for naught. I'm already starting to have dirty voyeur feelings like I've hacked into NewYorkCountryLawyer's gmail account. So enough already.
I think you're wrong about this. If there were a minimum Funny-to-Interesting ratio, I'd have been banned from Slashdot quite a while ago.
But since we're on the suing individual uploaders path, lets examine that: 1) laughable standards of evidence gathering. Infringement notices sent to network printers, or even people sharing their own work with a vaguely similar name to something else. 2) Arguably illegal methods of evidence gathering, certainly unlicenced investigators 3) abuse of due process to get default judgements before the defendent even knows they're being sued 4) going after innocent people when it's clear they're innocent; grannies sued for the use of windows software on her mac 5) going after people, no matter the method. Suing dead people, or after losing the case against the parent, refile against the under-age kids 6) extortion; pay a fine now to our settlement centre, or face huge court costs regardless of your innocence 7) blatant lies in court, with technical 'experts' not even considering alternative explanations (unsecured wireless etc), the misrepresentation of 'making available', etc etc 8) going after alleged infringers for huge fines; civil cases are supposedly about making good the plaintiff's losses, instead they want judgements running to hundreds of thousands times their actual losses 9) other abuses of the political and legal system, like root-kits, lobbying for the right to destroy alledged infringers computers remotely, or the three-strikes laws with no evidence required to cut people off the internet at will, ever increasing retroactive copyright terms, destroying the public domain. 10) doing everything in their power to destroy or limit legitimate alternatives to their current system; hulu/boxee, raising the prices on itunes, DRM, massive rate hikes for online radio, the PRS and google music videos, the list goes on and on. 11) still treating the actual artists like crap, screwing them out of even the small amounts they're contracted to pay for say, online radio
arkhan, you have been doing your reading, haven't you? Nice.
It says in TFA that SUNY told the students they were intending to comply with the motion to identify
That's AFTER the motion had already been granted. I.e., the RIAA made a motion; no copies were served on anybody; it was just the RIAA and the judge; the judge let them get away with that, and signed the order granting the motion for discovery and ordering the students' identities to be divulged.
Only AFTER losing a motion they never even knew existed, were the students advised they'd lost. Then, on probably a couple of days notice, they had to get a lawyer to step in and make a motion to vacate. But getting a judge to change his or her mind after he or she has already ruled on something is much different than getting a judge not to go in that direction in the first place.
There is no reason in the world why the RIAA could not have made the motion on notice. If it wanted to sue 16 John Does it could have given the university 16 copies of the motion papers and supporting documents to distribute to them. The judge should have insisted on that. Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.
Personally, I'd have no problem with the RIAA if the damages sought were in any way related to any plausible cost. $2.97 per song shared. Assume that each file represents a lost sale and get triple damages because it's wilful infringement.
If you read up on all the procedural unfairness about the way they go about it, or all of the sloppiness in their methods, and their lack of concern for whether the defendant is innocent or not, I think you would have a "problem" -- even if the measure of damages they sought was rational instead of absurd.
http://interviews.slashdot.org/article.pl?sid=06/09/13/1627205 [slashdot.org] There is the interview. It is getting a little old, but you may find it interesting. I see Ray already responded to you.
Gets a little old? I remember it like it was yesterday. The wounds still haven't healed.
Boy Slashdot is a tough town.
Oh come on Ray, you know you just did it for that sweet Slashdot cred!
Yeah. That's it. The kharma.
icebike, my advice is not to waste your breath on that AC troll.
Mr. Beckerman: I'm a law student (graduating this year, economy be damned). I still cant figure out how exactly the Doe D's are able to respond if the initial pleading doesn't identify them. Is it up to the service provider to pass through notice to the Does? Once a Doe receives notice, assuming he does before default judgment is entered, how does the Doe respond without identifying himself or entering an "appearance" and basically waiving jurisdiction? I'm sure I'm missing something procedurally here, hope you can point me in the right direction.
You're not missing anything. The RIAA lawyers have been missing something. And unfortunately many of the judges have been missing something.
As you have learned in law school, it is of the essence of the American judicial system that BEFORE JUDICIAL ACTION IS TAKEN AGAINST SOMEONE THEY MUST BE GIVEN NOTICE, AND AN OPPORTUNITY TO BE HEARD.
Do you think there's any chance at all the 2nd Circuit Appeals court will actually rule on some of the other issues at hand
And why wouldn't they?
-The issues are squarely presented.
-After 40,000 cases, there is ZERO appellate authority.
-The 2nd Circuit is considered by many to be the leading copyright court in the country.
I haven't been able to find is a succinct explanation of what particular legal approach the RIAA takes is unconventional
They're too numerous to enumerate but I've highlighted a small sampling of some of them here and here.
When and how did you get involved in the RIAA?
Late 2004 or early 2005. I heard about these RIAA cases from the Electronic Frontier Foundation, knew they were BS procedurally and substantively, thought to myself 'I'm a litigator, I'm a copyright lawyer, and I hate bullies... maybe I can help some of these folks.' Next thing I knew I was up to my neck in it.
And I'm especially pleased that the defendant's lawyer is Richard Altman, because he is an excellent attorney; he was actually working against the RIAA's madness even before I got into the fight. He is a brilliant, and highly principled, guy.
This could be the first time we will have appellate review of the RIAA's wacky, un-American, "ex parte", "John Doe" procedures.
I didn't say they're not real. They're just not good for anything.
As a software developer, I'd be as genuine as a 3 dollar bill.
Here's the quickest way to getting that -1 you've always wanted: vi or emacs?
Actually I still haven't perfected my skills programming a Vic 20.
With all of the chatter about the merits and viability of the tax credit, I'm surprised at the lack of comment on the preamble. Regardless whether the proposed legislation makes it, as a resident of NYS, I'm really encouraged to hear that the Assembly "Gets It" when it comes to *using* OSS. That's not "proposed" -- they've already made OSS a significant part of how they get things done. This is a *huge* win in mindset, and will have positive effects (even indirect ones) beyond any small tax credit.
Excellent point, Outlaw. It demonstrates an understanding of some of the important contributions that are being made by open source.
It's also one of the oldest jokes on /., so I can't really take credit, except maybe for good taste in cliches. :)
Well I'm always down for learning a Slashdot "meme". I for one welcome the teachings of our more ancient and wise overlords.
I guess that was one of the funniest posts I've ever read here.
As a lawyer I'm genuine.
As a software developer, I'd be as genuine as a 3 dollar bill.
By the way, for those of you anxious to know the background of how an Assemblyman named Jonathan Bing got into this issue, I should mention that
(a) the guy with the idea behind this bill was "open government", "open access to court records", "open source", "open everything" activist Carl Malamud, who was most recently in the news when Congressmen and Senators started picking up his thread about making PACER -- i.e. court records -- free (as in beer); and
(b) the guy who helped usher this through, and put together the details, and get the Assemblymen to put their backs behind this, in the halls of government, is a very dynamic young geek and Slashdotter named Benjamin Kallos (like myself a Bronx High School of Science grad) who until recently was working for Assemblyman Bing but is now running for City Council in Manhattan.
The idea sounds excellent in principle, but how do you tell a true open source developer apart from a poser looking to abuse this program?
Slashdot post history?
True. If they've never been modded to "-1 Flamebait" you know they're not genuine.