This person is actually the operator of a torrent site, not a peer. He's already received fines and prison time for the sharing others have done using his site. The RIAA/MPAA asked for restitution in addition, which is based on actual damages. (The typical sky-high figures are fines and statutory damages.)
Correct. And where this ruling becomes relevant to the statutory damages civil cases is that (a) the disproportion of the statutory damages being sought to the actual damages has been decried judicially and is the basis for a constitutional attack in several of the civil cases, such as Capitol Records v. Thomas, SONY BMG Music v. Tenenbaum, and others, and (b) the theories which the RIAA lawyers have used to justify the size of the statutory damages are the identical theories whose logic was just shot down by Judge Jones.
Anyone who thinks lawyers, unlike other people, can say things they do not believe, and get away with it, is completely naive about the process, and hence a fool.
A courtroom is a small place, and disingenuousness is obvious there, to all. It is much harder, rather than easier, to get away with falsehood in a courtroom than most other places in the world.
The most foolish consumers of legal services are those knaves who think they can hire an "attack dog" lawyer to defend the indefensible; in the end they are the ones who get bitten, after having paid hefty fees for the privilege.
the issue is not about whether copyright should exist at all but rather how best to stimulate creativity to promote the public good rather than the interests of corporations
In order to arrive at such a radical conclusion, you must have actually gone back and read the United States Constitution.
A lot of time and effort go into creating mathematics also. Yet, it is not copyrighted.
A lot of time and effort go into designing and building a house. Yet the bricklayers, plumbers, electricians, etc. don't keep receiving payments for a hundred years after their work has been completed.
Well spoken. Indeed, very few of us keep receiving payments for a hundred years after our work has been completed. Indeed, very few of us are around a hundred years after our work has been completed. The revenue from most of the copyrights of course goes to a few sociopathic corporations with perpetual life.
I find the idea that the record companies don't know any better, given their long-term historical record for machinations, to be a bit incredulous.
Take a look at the respective balance sheets of (a) the record companies and (b) their law firms. Then think again.
I'm not saying the record company managers have not authorized the stupidity that's going on. On the contrary, I'm sure they have. But it's the easiest thing in the world for a greedy lawyer to exploit, to the lawyer's benefit and the client's detriment, a client's excess testosterone. Any litigation lawyer out there knows exactly what I'm talking about. The easiest way to separate a client like that from his, her, or its money is to encourage their aggressive tendencies. And the easiest way to get an aggressive client like that to seek another law firm, is to advise them to stand down. A real lawyer is one who has the courage to tell the client "enough". The RIAA doesn't have real lawyers.
I disagree with all of your contentions. They have not followed the procedures for an interlocutory appeal; their notice of appeal is a nullity. Their application is for a writ of prohibition. It should be denied because there is no basis for a writ of prohibition.
The implication is that this whole RIAA thing is nothing more a bunch of sharks jacking a client who doesn't know any better, and milking them like a moo-cow.
Actually, what they don't want is hundreds of lawyers on the internet picking apart their case and e-mailing their findings to Harvard.... Because, even the RIAA can't stand a chance of an entire army of lawyers working pro bono.
Quite true. Thing is, in the entire world, the RIAA have no friends except those on their payroll. But as for enemies, well, most anyone who knows about these cases is on the side of the RIAA's victims.
If you are indeed human I think the most impor[t]ant work you can do is to prove that these other lawyers are highly evolved leeches that had absorbed human DNA.
If you want to make anti-lawyer jokes, well I can't stop you from that. But I must protest your attempt to insult leeches.
I have detected no signs of life, much less any human DNA, in my 'worthy opponents'.
RIAA and MPIAA are scum, but they are not genocidal dictators.
My original comment didn't compare them to genocidal dictators. It analogized their disingenuous statement that the reason for the litigations was "educating the public" to the disingenuous statement of the Nazis that the guiding principle of Auschwitz was that "arbeit macht frei".
Sounds like you are looking for an explanation from Matt "The Dentist" Oppenheim, who directs the HRO team and local counsel. Based on his demeanor in the Joel Tenenbaum deposition in this case, he appears to have gone from just plain nasty to borderline obsessive.
If the "writ of mandamus or prohibition" ever gets decided on the merits, it will be denied. The RIAA tries to read Rule 83.3 (the rule that governs recordings and broadcasts of a case) in a way to which it is not susceptible. Specifically,...
83.3(a) reads, "Except as specifically provided in these rules OR by order of the court..."
Rule 83.3(c) reads, "The court may permit..." followed by a list of certain types of proceedings.
The RIAA wants 83.3(c) to apply as a limitation to 83.3(a) "... by order of the court.." However, 83.3(c) is a rule, and as such it applies to 83.3(a) "specifically provided in these rules". For example, this rule permits a court to allow a recording of proceedings without the need to resort to an order.
Sorry folks, I have read too many SCO v. The World Court filings. The RIAA thinks just like SCO. Oh yes, SCO is now in bankruptcy.
Here is the Court filing:
http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf
Actually reading the rule? What a radical concept. How come no one told the RIAA lawyers about that?
As NYCL points out, you cannot appeal NONFINAL rulings of the trial court. Otherwise, people would be appealing EVERYTHING that happens in the trial courts, and the trial process would turn into an endless Dickensian jumble. A person has to wait until everything is over in the trial court before he or she can appeal. The RIAA didn't do that, so this "appeal" is doomed.
Right now, the RIAA's lawyers are looking stupid (even to themselves) and may be worried that their clients will be pissed at them for making such a silly procedural blunder. They'll seek to convert their appeal into an attempt at interlocutory review. The problem with interlocutory review is that it is EXTREMELY difficult to get (for the same reasons stated in the first paragraph). Very generally speaking, a person can only get interlocutory review if they can demonstrate that the trial court's decision was soooo bad that its consequence would screw up everything afterward. The appeals courts will bend over backward to uphold the trial court's use of its discretion. A motion for interlocutory review is a really bad in this case because it has virtually no chance of success.
This presents the really interesting question: Why is the RIAA acting so stupid? This appeal is a loser motion that will cost real money (and maybe elicit monetary sanctions) and will hurt the music company's public relations. Are the lawyers (not the client) making the decisions here? Is the client asleep at the wheel? Is the lawyer keeping the client in the loop so that the client can make informed decisions? Is the decisionmaker-client not any one person? Who is making the calls for the music company here?
Often rich ligitants seek to financially exhaust poor litigants by making tons of motions. That strategy doesn't make sense in this case, because Nesson's team is like the Borg. They'll eat that stuff up.
Generally, the strategic decisions are made by the clients and the tactical decisions are made by the lawyers. Maybe the lawyers reckoned that this is a tactical call that the lawyers get to make . . .
This is a high-order blunder by the RIAA. I'm just wondering why . . . .
The RIAA is, among other things, a joint venture formed by a bunch of music companies. The mandate of the RIAA, insofar as it is clearly expressed or understood, must be the product of negotiation and compromise and inertia.
What they've done is abandon the "appeal" and file a writ of "mandamus or prohibition". (I.e. they couldn't make up their mind whether it was a writ of mandamus or a writ of prohibition, so they say "or". PS It looks to me like an application for a writ of prohibition.)
While your first two statements are correct, the third is not. Under Fed R App P 8, a motion for stay pending appeal is directed in the first instance to the district court.
You're absolutely right. Were there an appeal, a motion for a stay could have been properly addressed to the district court.
Ray, I'm a musician (just an indy blues player/songwriter in a blues band) and a fan of yours. I cheer your courage in standing up to these scumbags. I worry about you though. I'm sure I'm not alone.
I hope you figuratively/legally tear 'em a new one, but I also hope you pay proper attention to personal security. I doubt anyone that would conduct themselves in the way the RIAA/MPAA attack dogs and their masters do would totally rule out the possibility of arranging a "tragic accident/mugging/burglary" if sufficiently desperate.
There's plenty-enough money & power at stake here to make this, if not likely, at least plausible as an outlying possibility if they perceive you personally as enough of a threat to their revenue, power, and control. Scumbags that have demonstrated as little regard for the law and common decency as they have shown should not be underestimated.
I know you're certainly no fool, and are likely well-aware and taking proper precautions. I felt I had a duty to mention this distasteful possibility, however...men as honorable, principled, and courageous as you don't come dime-a-dozen.
Keep fighting the good fight my friend. My, and I'm certain many peoples', prayers & well-wishes are with you.
Bravo, Sir, bravo!
Strat
Well, Strat, (a) blues is my favorite kind of music, (b) indie music is of course the only way to go, and (c) I'm not afraid of bullies. Plus if anything like that ever happened to me, where do you think the police would look?
Hi Ray.
Do you think they're hoping that if they compile enough consecutive legal errors, then 13 wrongs will add up to a right and then they're hoping they'll win?
:)
No I think the lawyers are still in control and still trying to do anything they can think of that they can bill for.
I think anyone reading the post knows that those were my professional opinions. I specifically said "as far as I know". However, I think it is clear that my opinions were correct, as evidenced by the fact that they have not pursued their defective "appeal" but have instead filed a "petition for mandamus or prohibition" (they don't know enough to know whether it's 'mandamus' or 'prohibition'; in fact it's prohibition). (a) Under the Federal Rules it was not an appealable order; (b) it was procedurally improper and ineffective to file a notice of appeal, since the order was not appealable, and (c) it was improper to direct their motion for a stay to the District Court Judge, since it ought to have been directed to the appellate court, which is why the RIAA has now filed a motion for a stay in the appellate court.
I.e. even the RIAA lawyers have evidenced their awareness that all 3 statements were correct.
The RIAA (and the MPAA) have a stated goal of educating the public about copyright law and the evils of infringement. However, the actual goal is to "re-educate" the public, much as our totalitarian friends around the world "re-educate" those who disagree with them. In the RIAA's case, this absolutely does not include informing the public about their sleazy, if not outright criminal courtroom behavior.
Correct. They have as much interest in 'educating the public' as Hitler did in making the Jews "Frei" through "Arbeit".
Slashdot Mirror
This person is actually the operator of a torrent site, not a peer. He's already received fines and prison time for the sharing others have done using his site. The RIAA/MPAA asked for restitution in addition, which is based on actual damages. (The typical sky-high figures are fines and statutory damages.)
Correct. And where this ruling becomes relevant to the statutory damages civil cases is that (a) the disproportion of the statutory damages being sought to the actual damages has been decried judicially and is the basis for a constitutional attack in several of the civil cases, such as Capitol Records v. Thomas, SONY BMG Music v. Tenenbaum, and others, and (b) the theories which the RIAA lawyers have used to justify the size of the statutory damages are the identical theories whose logic was just shot down by Judge Jones.
Anyone who thinks lawyers, unlike other people, can say things they do not believe, and get away with it, is completely naive about the process, and hence a fool.
A courtroom is a small place, and disingenuousness is obvious there, to all. It is much harder, rather than easier, to get away with falsehood in a courtroom than most other places in the world.
The most foolish consumers of legal services are those knaves who think they can hire an "attack dog" lawyer to defend the indefensible; in the end they are the ones who get bitten, after having paid hefty fees for the privilege.
the issue is not about whether copyright should exist at all but rather how best to stimulate creativity to promote the public good rather than the interests of corporations
In order to arrive at such a radical conclusion, you must have actually gone back and read the United States Constitution.
A lawyer's personal opinions have no bearing on the position he puts forward.
As someone who's been a litigator for 30 years I beg to differ.
Any lawyer who says things he does not believe in has a fool for a client.
Don't forget that the RIAA aren't the only aggressors in this ongoing feud.
Yes. There's the MPAA too.
A lot of time and effort go into creating mathematics also. Yet, it is not copyrighted. A lot of time and effort go into designing and building a house. Yet the bricklayers, plumbers, electricians, etc. don't keep receiving payments for a hundred years after their work has been completed.
Well spoken. Indeed, very few of us keep receiving payments for a hundred years after our work has been completed. Indeed, very few of us are around a hundred years after our work has been completed. The revenue from most of the copyrights of course goes to a few sociopathic corporations with perpetual life.
There are lots of other places it will be streamed; here are a few more lists:
Here and here.
I suspect the two people who paid up are now wishing that they hadn't.
That was my first thought as well.
I find the idea that the record companies don't know any better, given their long-term historical record for machinations, to be a bit incredulous.
Take a look at the respective balance sheets of (a) the record companies and (b) their law firms. Then think again.
I'm not saying the record company managers have not authorized the stupidity that's going on. On the contrary, I'm sure they have. But it's the easiest thing in the world for a greedy lawyer to exploit, to the lawyer's benefit and the client's detriment, a client's excess testosterone. Any litigation lawyer out there knows exactly what I'm talking about. The easiest way to separate a client like that from his, her, or its money is to encourage their aggressive tendencies. And the easiest way to get an aggressive client like that to seek another law firm, is to advise them to stand down. A real lawyer is one who has the courage to tell the client "enough". The RIAA doesn't have real lawyers.
I disagree with all of your contentions. They have not followed the procedures for an interlocutory appeal; their notice of appeal is a nullity. Their application is for a writ of prohibition. It should be denied because there is no basis for a writ of prohibition.
The implication is that this whole RIAA thing is nothing more a bunch of sharks jacking a client who doesn't know any better, and milking them like a moo-cow.
And?
Actually, what they don't want is hundreds of lawyers on the internet picking apart their case and e-mailing their findings to Harvard.... Because, even the RIAA can't stand a chance of an entire army of lawyers working pro bono.
Quite true. Thing is, in the entire world, the RIAA have no friends except those on their payroll. But as for enemies, well, most anyone who knows about these cases is on the side of the RIAA's victims.
If you are indeed human I think the most impor[t]ant work you can do is to prove that these other lawyers are highly evolved leeches that had absorbed human DNA.
If you want to make anti-lawyer jokes, well I can't stop you from that. But I must protest your attempt to insult leeches.
I have detected no signs of life, much less any human DNA, in my 'worthy opponents'.
RIAA and MPIAA are scum, but they are not genocidal dictators.
My original comment didn't compare them to genocidal dictators. It analogized their disingenuous statement that the reason for the litigations was "educating the public" to the disingenuous statement of the Nazis that the guiding principle of Auschwitz was that "arbeit macht frei".
Sounds like you are looking for an explanation from Matt "The Dentist" Oppenheim, who directs the HRO team and local counsel. Based on his demeanor in the Joel Tenenbaum deposition in this case, he appears to have gone from just plain nasty to borderline obsessive.
1. Are the two concepts mutually exclusive?
2. Why borderline?
If the "writ of mandamus or prohibition" ever gets decided on the merits, it will be denied. The RIAA tries to read Rule 83.3 (the rule that governs recordings and broadcasts of a case) in a way to which it is not susceptible. Specifically, ...
83.3(a) reads, "Except as specifically provided in these rules OR by order of the court ..."
Rule 83.3(c) reads, "The court may permit ..." followed by a list of certain types of proceedings.
The RIAA wants 83.3(c) to apply as a limitation to 83.3(a) "... by order of the court .." However, 83.3(c) is a rule, and as such it applies to 83.3(a) "specifically provided in these rules". For example, this rule permits a court to allow a recording of proceedings without the need to resort to an order.
Sorry folks, I have read too many SCO v. The World Court filings. The RIAA thinks just like SCO. Oh yes, SCO is now in bankruptcy.
Here is the Court filing:
http://beckermanlegal.com/pdf/?file=/Lawyer_Copyright_Internet_Law/sony_tenenbaum_090117PetitionWritProhibitionMandamus.pdf
Actually reading the rule? What a radical concept. How come no one told the RIAA lawyers about that?
As NYCL points out, you cannot appeal NONFINAL rulings of the trial court. Otherwise, people would be appealing EVERYTHING that happens in the trial courts, and the trial process would turn into an endless Dickensian jumble. A person has to wait until everything is over in the trial court before he or she can appeal. The RIAA didn't do that, so this "appeal" is doomed. Right now, the RIAA's lawyers are looking stupid (even to themselves) and may be worried that their clients will be pissed at them for making such a silly procedural blunder. They'll seek to convert their appeal into an attempt at interlocutory review. The problem with interlocutory review is that it is EXTREMELY difficult to get (for the same reasons stated in the first paragraph). Very generally speaking, a person can only get interlocutory review if they can demonstrate that the trial court's decision was soooo bad that its consequence would screw up everything afterward. The appeals courts will bend over backward to uphold the trial court's use of its discretion. A motion for interlocutory review is a really bad in this case because it has virtually no chance of success. This presents the really interesting question: Why is the RIAA acting so stupid? This appeal is a loser motion that will cost real money (and maybe elicit monetary sanctions) and will hurt the music company's public relations. Are the lawyers (not the client) making the decisions here? Is the client asleep at the wheel? Is the lawyer keeping the client in the loop so that the client can make informed decisions? Is the decisionmaker-client not any one person? Who is making the calls for the music company here? Often rich ligitants seek to financially exhaust poor litigants by making tons of motions. That strategy doesn't make sense in this case, because Nesson's team is like the Borg. They'll eat that stuff up. Generally, the strategic decisions are made by the clients and the tactical decisions are made by the lawyers. Maybe the lawyers reckoned that this is a tactical call that the lawyers get to make . . . This is a high-order blunder by the RIAA. I'm just wondering why . . . . The RIAA is, among other things, a joint venture formed by a bunch of music companies. The mandate of the RIAA, insofar as it is clearly expressed or understood, must be the product of negotiation and compromise and inertia.
What they've done is abandon the "appeal" and file a writ of "mandamus or prohibition". (I.e. they couldn't make up their mind whether it was a writ of mandamus or a writ of prohibition, so they say "or". PS It looks to me like an application for a writ of prohibition.)
Could this "GuloGulo (959533)" person be appointed here to harass NYCL
If he were one of the pros, he would probably would have posted as an AC.
(where he least expects it - in Slashdot)
You've got to be kidding, I get harangued plenty here.
as well as to give other people (important new readers) a bad impression of Slashdot (so that they'll stay away)?
I'm not worried about Slashdot; it seems to be doing fine.
While your first two statements are correct, the third is not. Under Fed R App P 8, a motion for stay pending appeal is directed in the first instance to the district court.
You're absolutely right. Were there an appeal, a motion for a stay could have been properly addressed to the district court.
Ray, I'm a musician (just an indy blues player/songwriter in a blues band) and a fan of yours. I cheer your courage in standing up to these scumbags. I worry about you though. I'm sure I'm not alone. I hope you figuratively/legally tear 'em a new one, but I also hope you pay proper attention to personal security. I doubt anyone that would conduct themselves in the way the RIAA/MPAA attack dogs and their masters do would totally rule out the possibility of arranging a "tragic accident/mugging/burglary" if sufficiently desperate. There's plenty-enough money & power at stake here to make this, if not likely, at least plausible as an outlying possibility if they perceive you personally as enough of a threat to their revenue, power, and control. Scumbags that have demonstrated as little regard for the law and common decency as they have shown should not be underestimated. I know you're certainly no fool, and are likely well-aware and taking proper precautions. I felt I had a duty to mention this distasteful possibility, however...men as honorable, principled, and courageous as you don't come dime-a-dozen. Keep fighting the good fight my friend. My, and I'm certain many peoples', prayers & well-wishes are with you. Bravo, Sir, bravo! Strat
Well, Strat, (a) blues is my favorite kind of music, (b) indie music is of course the only way to go, and (c) I'm not afraid of bullies. Plus if anything like that ever happened to me, where do you think the police would look?
Hi Ray. Do you think they're hoping that if they compile enough consecutive legal errors, then 13 wrongs will add up to a right and then they're hoping they'll win?
:)
No I think the lawyers are still in control and still trying to do anything they can think of that they can bill for.
I did not say it's impossible to file a defective document.
I think anyone reading the post knows that those were my professional opinions. I specifically said "as far as I know". However, I think it is clear that my opinions were correct, as evidenced by the fact that they have not pursued their defective "appeal" but have instead filed a "petition for mandamus or prohibition" (they don't know enough to know whether it's 'mandamus' or 'prohibition'; in fact it's prohibition). (a) Under the Federal Rules it was not an appealable order; (b) it was procedurally improper and ineffective to file a notice of appeal, since the order was not appealable, and (c) it was improper to direct their motion for a stay to the District Court Judge, since it ought to have been directed to the appellate court, which is why the RIAA has now filed a motion for a stay in the appellate court.
I.e. even the RIAA lawyers have evidenced their awareness that all 3 statements were correct.
Because, under the Federal Rules of Civil Procedure, and the United States Code, it's not an appealable order.
The RIAA (and the MPAA) have a stated goal of educating the public about copyright law and the evils of infringement. However, the actual goal is to "re-educate" the public, much as our totalitarian friends around the world "re-educate" those who disagree with them. In the RIAA's case, this absolutely does not include informing the public about their sleazy, if not outright criminal courtroom behavior.
Correct. They have as much interest in 'educating the public' as Hitler did in making the Jews "Frei" through "Arbeit".