That deposition is too funny... I read about halfway through before I just had to grep it for "squeal like a pig." It just goes to show you what I have always said: PhD stands for poor helpless dummy.
Well that's not true of all PhD's. But it aptly describes this one.
I guess I should have made clear that I was absolutely not defending the actions in this case. I did, after all, say "within the bounds of law and ethics." From what I've read of these cases, that ship sailed with the very first complaint. I was responding to a poster who wanted to smear the entire legal profession as a bunch of hired thugs without principles. That I had to disagree with. Most of the lawyers I know are good, hard-working, honest people.
I'm not going to lecture NYCL on legal ethics. But let me at least illustrate what I'm saying with a less emotionally-charged example, because I suspect you will agree with me. I am not, in general, a fan of software patents. But I have plenty of clients who bring me inventions that involve software. Under the current state of the law, they are entitled to software claims in their patent applications, so I write software claims with just enough physical structure that I am not claiming a "signal." As I said above, if I had serious problems with this, I could decline representation or refer the client to another attorney who is okay writing software claims. But it would be unethical for me to hide from the client the fact that, under the current state of the law, he is entitled to software claims, and thereby prejudice his right to get them. And it would be impractical---especially if I want to continue to prosecute patents in the field of electrical engineering---to say that I will never take a case with a software claim.
Similarly, if I file a trademark complaint, I will broadly allege many things on information and belief that I don't know for sure are true (for example, when was the last time you saw a trademark that was not alleged to be "famous" for purposes of dilution). This is not to mislead anybody. It's to preserve my right to press those arguments if they turn out to be important. The defendant's only burden in response is to say "Prove it." In discovery, the truly important issues will come into focus, and we'll concentrate on those and trim the cruft. If it turns out I have enough evidence to support an argument that the mark in question is famous, I will argue dilution, even though I don't like the dilution statute. It's exactly what I expect from opposing counsel, and it's what I would expect my attorney to do for me.
So no, we are not slaves to our clients. But nor are we philosophers (unless we're Con Law professors, which I am not). I think that I can be both pragmatic and principled. I don't believe those are mutually exclusive. I doubt that you believe that they are, but if you do, then I will respectfully disagree.
P.S. I think your work in these cases is outstanding. You're a credit to the profession.
Thanks Zordak. I understand. Of course a lawyer shouldn't have a secret agenda to subvert his client's best interests. I just wanted to make it clear that we do have the right to stand up to our clients, to disagree with them, and to refuse to do things with which we do not feel comfortable. I do that. And if the client doesn't like it, they're free to go elsewhere. I'm sure you have done the same, or at least would if what the client was asking you to do was outside your personal comfort zone.
If I had never heard of this RIAA litigation campaign, and the RIAA came into my office and asked me to take on one of these cases against working people, teenagers, mothers, grandmothers, etc.... I would tell them "Sorry, I'm not comfortable taking on that kind of work." And if I took on the case, not realizing how crazy it all is, and then came to the realization midway through the representation, I would say "Sorry, I'm not comfortable with this representation. Either we have to change our position, or you need to get new counsel."
In the law school I attended, we were taught that you are obligated to advocate zealously for your clients, meaning that if there is a position favorable to your client, you take it as long as you can do so within the bounds of law and ethics. You don't get to pick and choose which arguments personally give you a warm fuzzy or agree with the law review article you're working on.
I beg to differ. In the area of civil litigation we are not slaves. We are always free to tell the client to stuff it. Any true lawyer would have told the RIAA to stuff it long ago.
They are definitely working on it. Read the deposition NYCL gave their "Expert" witness. http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html
It's long, but it's awesome. I'm a programmer, not a lawyer, but after reading that deposition and all the stuff about "MediaDefender" I wonder why the RIAA has gotten as far as it has. If I were a judge my reaction to an RIAA lawsuit landing in my court would be more along the lines of uncontrolled laughter than anything else. I suppose that's why I'm a programmer, not a lawyer.
Their methods are unsound and sooner or later those RIAA lawyers are going to get Jack Thompsoned.
Glad to see you reading that deposition. It's incredible to me, too, that they've gotten as far as they have. If I were a judge they'd be bounced from my courtroom so fast it would make your head spin.
If anything, isn't it a good thing for us to get an appeals level ruling on this point of law?
Sure but I don't think the Court will share your high regard for the RIAA's motion papers. The motion flies in the face of everything we know about federal appellate practice.
IANAL. I'm using common sense here, which may be the wrong tool for the job, but reading the request to appeal, it makes sense to me.....
There is no "common sense" whatsoever in the motion. The entire appeal might be obviated by a trial. Federal appeals practice tries to eliminate unnecessary appeals.
They're only doing this because they know Jammie has no money for this stuff, and her lawyer wants to get off the case.
There was no evidence of anyone having 'distributed' files to anyone. If that's what the case was about then there should have been a directed verdict for the defendant. Maybe there will be at the second trial, since the judge now has the law right.
Interlocutory appeals are indeed rarely granted; IIRC it's usually when the rest of the case hinges on a point of law and there will be a boatload of work down the drain if the case goes down the wrong track. In this case, the Plaintiffs are going to try to convince the Court that it made an error of discretion in deciding that they (plaintiffs) had played fast and loose with their pleadings.
Run that by again: they're going to persuade the Court that the Court was not only wrong, but waaaay wrong (abuse of discretion) when the Court decided it had made an error by trusting them.
Boggle.
And what's at stake? A retrial, with most of the motion practice and pretrial preparation already complete. Somehow I don't see the Court agreeing that this is so profound and urgent that it can't wait for the trial to be decided on its merits and a final judgment rendered.
You could not be so unafraid to criticize a judge in Australia.
I guess you don't know me very well.
I can assure you, were I in Australia -- and were the bullies operating there and Australian judges similarly allowing them to run roughshod over our legal system and over the rights of innocent people -- I would be making a similar outcry. (Although I'd probably be having more fun doing it.)
And to tell you the truth, from the Australian lawyers I've met, I'm really skeptical that they would be any more timid than I; they don't seem like chickens at all. The RIAA running dogs would probably get nowhere in Australia.
1. Under the law, the Judge can't issue a subpoena to obtain the identity of John Doe unless the plaintiff has evidence that the John Doe committed copyright infringement.
2. The University of Oregon showed, and the Judge agreed, that the RIAA's evidence does not show that the John Does committed copyright infringement.
3. The Judge correctly quashed the subpoena.
Here comes the illogical part.
4. Then, instead of ending it there, he tells the RIAA they can issue a new subpoena which asks for the identities of innocent people so long as their subpoena doesn't say anything about copyright infringement.
RIAA: If you don't grant the motion, they'll destroy all the data!
Judge: What makes you come to that conclusion?
RIAA: Because that's what we would do!
The University of Oregon and the Oregon Attorney General did a great, great thing here.
1. They were the first institution of higher learning to actually make a motion to quash an RIAA subpoena. 2. Their motion papers and their reply papers were both fantastic. 3. Other colleges and universities emulated their motion papers and made similar motions. 4. They made the all important point about how the RIAA's "evidence" does not point to a copyright infringer, and the Judge -- despite the irrationality of his order -- recognized that. 5. They made the all important point about MediaSentry operating without a license, a point which has been taken up by many other people in many other jurisdictions, leading to investigations of possibly criminal conduct in North Carolina, Michigan, Massachusetts, and elsewhere. (And PS-don't be surprised to see such an investigation launched in Oregon, since the Oregon Attorney General has gone on record with this issue.) 6. The motion overall was extremely beneficial to the students; had the motion been granted, that would have been the end of it -- 17 RIAA victims would have been spared further persecution. 7. The misjoinder of John Does issue, and the illegality issue, and many other issues, are still preserved for the John Does to raise, so they haven't lost anything. 8. Other colleges and universities, based upon the Oregon AG's papers, have taken a second look at their policy of RIAA appeasement, and some are showing recalcitrance for the first time in 5 years.
So in my book, the Oregon AG and the University of Oregon did a great thing. My hat is off to them. And I think history will show that they were right, and that they made an important contribution.
The way you discourage illogical, indefensible decisions like this is to (with due process of course) impose sanctions against such judges and/or conduct independent investigations into whether there is anything that remotely looks like the judge is receiving money or other favors from the RIAA. If this is possible at all, it should be easy considering that this will not be the first time that the RIAA's tactics have (I'll be nice and say) been questionable. You then follow up by conducting an investigation into the RIAA's tactics, including whether or not the likes of MediaSentry are in fact breaking the law by acting like unlicensed private investigators (why is this not a completely separate issue from the lawsuit at hand?) because as those in power so enjoy telling us, "they shouldn't care if they have nothing to hide".
I felt that way when I first saw this summary but I am certainly not a lawyer and so I do not feel that I am qualified (without doing lots of research at any rate) to say whether this judge's actions are illogical or indefensible in the context of legal proceedings, in the sense that many perfectly legal practices are complete unenlightened bullshit to me, but now that a lawyer such as yourself has cleared that up for me the rest seems quite simple. Yes I know that as someone who does not understand the nuances of law as you do, I very well may be coming off like a complete armchair amateur so if you point that out, I'll understand, but either way I am grateful for people like you who can be a part of the system without also being blind to things about it that probably need to change. I wish that insiders with your honesty were not the small minority that they seem to be.
I'm sorry if I offended you. I totally understand that you are not an apologist for the entire legal system. I just marvel at your tenacity. As for my dishea[r]tened state being a luxury, as a citizen of another country, I can do very little to influence outcomes in the US (other than offer opinions in forums like this). At home (in Australia) however, I am slightly more involved in issues that I believe in.
Good luck to you and all like you.
I wasn't offended. I just wanted to make it clear that I'm neither unaware of, nor afraid to criticize, the failings of a system that could allow a decision like that to be generated -- a decision that makes us a laughingstock among thinking people everywhere -- just because I work within that system.
I'm sorry Ray, but just how does an outside observer not draw the conclusion that the legal system is inherently corrupted? I know you can't answer the question (at least not publicly) and I and many others support your valiant efforts. However, its hard as someone from outside the US to not see your country as just the world's biggest banana republic. Where the law has the appearance of granite and the firmness of quicksand. A legal system whose flexibility is only ever exercised to the favour of power, never the other way. As an amateur student of early American history and the founding of your nation, I just find the underlying hypocrisy galling and the fall of the republic utterly disheartening.
I'm not here to be an apologist for erroneous decisions like this. In my blog post, after reporting the facts, I then wrote this editor's note:
Is it just me, or does this decision make no sense whatsoever? The Judge recognizes that the RIAA's investigation is insufficient to actually point to a copyright infringer, and that the only way to determine that there was a copyright infringement is to conduct a further investigation....but is directing the University, anyway, to turn over names of people who the Court recognizes may be completely innocent?
And I wrote a lengthy article for The Judges Journal, the quarterly publication of the American Bar Association written for the judges' section, for publication in its "Access to Justice" issue, in which I criticized this type of poor judicial work as creating an uneven playing field, and made 15 specific suggestions as to what judges like this needed to do that they were not doing.
The difference between you and me is that I can't afford the luxury of getting 'disheartened'. But I do get angry. And an illogical, indefensible decision like this one ticks me off.
Good question. Actually, there's a split of authority on the subject. In several circuits the order is appealable as of right. In at least one circuit, the order is not appealable as of right. I don't happen to know how they would rule in the Ninth Circuit.
Several years ago a New Mexico Judge (IIRC) instructed the RIAA to bring further suits against individual defendants rather than join several in one action. For example, there is no accusation here that the various students acted in concert to infringe copyrights -- whatever each of them allegedly did, it was done on an individual basis. Did the University raise this issue with the judge? Does the ruling address it?
Well you're certainly on top of the issues. A number of judges, more than a dozen, have held that it is illegal to join the John Does. But the University did not raise it. The tenor of the motion was that they were looking out for the University's interests rather than those of the students.
The words "honest" and "RIAA" don't even belong in the same sentence./sigh
Yes. Truly amazing. The RIAA lawyer tells the judge that the University will destroy the data if the motion is not granted. Leaving out the fact that the University told him that the data has been preserved. And the Judge "presumes" that that was an "honest mistake"?
I personally don't find it so controversial. The decision, handed down August 13th, just followed basic copyright law principles: if you license something, and it's used beyond the terms of the license, that's copyright infringement.
My guesstimates, for what they're worth, are that -the RIAA has gone after ~40,000 people -it's gotten around 25,000 default judgments -it's collected almost nothing on the default judgments -it's gotten around 10,000 settlements at an average of $3000, for a total of $30 million -it's spent around $100 million.
First they ignore you, then they laugh at you, then they fight you, then you win.
They've gotten to the "fight you" stage. You're winning, Ray!
Thanks, Rudisaurus. I'll be glad when we've gotten to the "win" stage, and this war is over, because a lot of innocent people are getting hurt by this madness.
Slashdot Mirror
That deposition is too funny... I read about halfway through before I just had to grep it for "squeal like a pig." It just goes to show you what I have always said: PhD stands for poor helpless dummy.
Well that's not true of all PhD's. But it aptly describes this one.
I guess I should have made clear that I was absolutely not defending the actions in this case. I did, after all, say "within the bounds of law and ethics." From what I've read of these cases, that ship sailed with the very first complaint. I was responding to a poster who wanted to smear the entire legal profession as a bunch of hired thugs without principles. That I had to disagree with. Most of the lawyers I know are good, hard-working, honest people. I'm not going to lecture NYCL on legal ethics. But let me at least illustrate what I'm saying with a less emotionally-charged example, because I suspect you will agree with me. I am not, in general, a fan of software patents. But I have plenty of clients who bring me inventions that involve software. Under the current state of the law, they are entitled to software claims in their patent applications, so I write software claims with just enough physical structure that I am not claiming a "signal." As I said above, if I had serious problems with this, I could decline representation or refer the client to another attorney who is okay writing software claims. But it would be unethical for me to hide from the client the fact that, under the current state of the law, he is entitled to software claims, and thereby prejudice his right to get them. And it would be impractical---especially if I want to continue to prosecute patents in the field of electrical engineering---to say that I will never take a case with a software claim. Similarly, if I file a trademark complaint, I will broadly allege many things on information and belief that I don't know for sure are true (for example, when was the last time you saw a trademark that was not alleged to be "famous" for purposes of dilution). This is not to mislead anybody. It's to preserve my right to press those arguments if they turn out to be important. The defendant's only burden in response is to say "Prove it." In discovery, the truly important issues will come into focus, and we'll concentrate on those and trim the cruft. If it turns out I have enough evidence to support an argument that the mark in question is famous, I will argue dilution, even though I don't like the dilution statute. It's exactly what I expect from opposing counsel, and it's what I would expect my attorney to do for me. So no, we are not slaves to our clients. But nor are we philosophers (unless we're Con Law professors, which I am not). I think that I can be both pragmatic and principled. I don't believe those are mutually exclusive. I doubt that you believe that they are, but if you do, then I will respectfully disagree. P.S. I think your work in these cases is outstanding. You're a credit to the profession.
Thanks Zordak. I understand. Of course a lawyer shouldn't have a secret agenda to subvert his client's best interests. I just wanted to make it clear that we do have the right to stand up to our clients, to disagree with them, and to refuse to do things with which we do not feel comfortable. I do that. And if the client doesn't like it, they're free to go elsewhere. I'm sure you have done the same, or at least would if what the client was asking you to do was outside your personal comfort zone.
If I had never heard of this RIAA litigation campaign, and the RIAA came into my office and asked me to take on one of these cases against working people, teenagers, mothers, grandmothers, etc.... I would tell them "Sorry, I'm not comfortable taking on that kind of work." And if I took on the case, not realizing how crazy it all is, and then came to the realization midway through the representation, I would say "Sorry, I'm not comfortable with this representation. Either we have to change our position, or you need to get new counsel."
In the law school I attended, we were taught that you are obligated to advocate zealously for your clients, meaning that if there is a position favorable to your client, you take it as long as you can do so within the bounds of law and ethics. You don't get to pick and choose which arguments personally give you a warm fuzzy or agree with the law review article you're working on.
I beg to differ. In the area of civil litigation we are not slaves. We are always free to tell the client to stuff it. Any true lawyer would have told the RIAA to stuff it long ago.
They are definitely working on it. Read the deposition NYCL gave their "Expert" witness. http://recordingindustryvspeople.blogspot.com/2007/03/deposition-of-riaas-expert-available.html It's long, but it's awesome. I'm a programmer, not a lawyer, but after reading that deposition and all the stuff about "MediaDefender" I wonder why the RIAA has gotten as far as it has. If I were a judge my reaction to an RIAA lawsuit landing in my court would be more along the lines of uncontrolled laughter than anything else. I suppose that's why I'm a programmer, not a lawyer. Their methods are unsound and sooner or later those RIAA lawyers are going to get Jack Thompsoned.
Glad to see you reading that deposition. It's incredible to me, too, that they've gotten as far as they have. If I were a judge they'd be bounced from my courtroom so fast it would make your head spin.
If anything, isn't it a good thing for us to get an appeals level ruling on this point of law?
Sure but I don't think the Court will share your high regard for the RIAA's motion papers. The motion flies in the face of everything we know about federal appellate practice.
IANAL. I'm using common sense here, which may be the wrong tool for the job, but reading the request to appeal, it makes sense to me.....
There is no "common sense" whatsoever in the motion. The entire appeal might be obviated by a trial. Federal appeals practice tries to eliminate unnecessary appeals.
They're only doing this because they know Jammie has no money for this stuff, and her lawyer wants to get off the case.
There was no evidence of anyone having 'distributed' files to anyone. If that's what the case was about then there should have been a directed verdict for the defendant. Maybe there will be at the second trial, since the judge now has the law right.
This has nothing to do with expecting to win, and everything to do with attempting to run up the defendant's legal bills.
Yes. That is the one consistent theme in their strategy.
Interlocutory appeals are indeed rarely granted; IIRC it's usually when the rest of the case hinges on a point of law and there will be a boatload of work down the drain if the case goes down the wrong track. In this case, the Plaintiffs are going to try to convince the Court that it made an error of discretion in deciding that they (plaintiffs) had played fast and loose with their pleadings. Run that by again: they're going to persuade the Court that the Court was not only wrong, but waaaay wrong (abuse of discretion) when the Court decided it had made an error by trusting them. Boggle. And what's at stake? A retrial, with most of the motion practice and pretrial preparation already complete. Somehow I don't see the Court agreeing that this is so profound and urgent that it can't wait for the trial to be decided on its merits and a final judgment rendered.
. We have a word for it where I come from.
Chutzpah.
According to the judge in EMI's case against mp3tunes.com he now operates mp3tunes.com and sideload.com.
You could not be so unafraid to criticize a judge in Australia.
I guess you don't know me very well.
I can assure you, were I in Australia -- and were the bullies operating there and Australian judges similarly allowing them to run roughshod over our legal system and over the rights of innocent people -- I would be making a similar outcry. (Although I'd probably be having more fun doing it.)
And to tell you the truth, from the Australian lawyers I've met, I'm really skeptical that they would be any more timid than I; they don't seem like chickens at all. The RIAA running dogs would probably get nowhere in Australia.
I find this rather illogical:
1. Under the law, the Judge can't issue a subpoena to obtain the identity of John Doe unless the plaintiff has evidence that the John Doe committed copyright infringement.
2. The University of Oregon showed, and the Judge agreed, that the RIAA's evidence does not show that the John Does committed copyright infringement.
3. The Judge correctly quashed the subpoena.
Here comes the illogical part.
4. Then, instead of ending it there, he tells the RIAA they can issue a new subpoena which asks for the identities of innocent people so long as their subpoena doesn't say anything about copyright infringement.
Hello. Anybody home?
RIAA: If you don't grant the motion, they'll destroy all the data!
Judge: What makes you come to that conclusion?
RIAA: Because that's what we would do!
Good one.
did any of the students also file independently of the university to get their interests considered?
Not to my knowledge, but I would not be surprised to see that happen now when subpoena number 2 gets served.
Let's not lose sight of the forest for the trees.
The University of Oregon and the Oregon Attorney General did a great, great thing here.
1. They were the first institution of higher learning to actually make a motion to quash an RIAA subpoena.
2. Their motion papers and their reply papers were both fantastic.
3. Other colleges and universities emulated their motion papers and made similar motions.
4. They made the all important point about how the RIAA's "evidence" does not point to a copyright infringer, and the Judge -- despite the irrationality of his order -- recognized that.
5. They made the all important point about MediaSentry operating without a license, a point which has been taken up by many other people in many other jurisdictions, leading to investigations of possibly criminal conduct in North Carolina, Michigan, Massachusetts, and elsewhere. (And PS-don't be surprised to see such an investigation launched in Oregon, since the Oregon Attorney General has gone on record with this issue.)
6. The motion overall was extremely beneficial to the students; had the motion been granted, that would have been the end of it -- 17 RIAA victims would have been spared further persecution.
7. The misjoinder of John Does issue, and the illegality issue, and many other issues, are still preserved for the John Does to raise, so they haven't lost anything.
8. Other colleges and universities, based upon the Oregon AG's papers, have taken a second look at their policy of RIAA appeasement, and some are showing recalcitrance for the first time in 5 years.
So in my book, the Oregon AG and the University of Oregon did a great thing. My hat is off to them. And I think history will show that they were right, and that they made an important contribution.
The way you discourage illogical, indefensible decisions like this is to (with due process of course) impose sanctions against such judges and/or conduct independent investigations into whether there is anything that remotely looks like the judge is receiving money or other favors from the RIAA. If this is possible at all, it should be easy considering that this will not be the first time that the RIAA's tactics have (I'll be nice and say) been questionable. You then follow up by conducting an investigation into the RIAA's tactics, including whether or not the likes of MediaSentry are in fact breaking the law by acting like unlicensed private investigators (why is this not a completely separate issue from the lawsuit at hand?) because as those in power so enjoy telling us, "they shouldn't care if they have nothing to hide". I felt that way when I first saw this summary but I am certainly not a lawyer and so I do not feel that I am qualified (without doing lots of research at any rate) to say whether this judge's actions are illogical or indefensible in the context of legal proceedings, in the sense that many perfectly legal practices are complete unenlightened bullshit to me, but now that a lawyer such as yourself has cleared that up for me the rest seems quite simple. Yes I know that as someone who does not understand the nuances of law as you do, I very well may be coming off like a complete armchair amateur so if you point that out, I'll understand, but either way I am grateful for people like you who can be a part of the system without also being blind to things about it that probably need to change. I wish that insiders with your honesty were not the small minority that they seem to be.
What about the judges on the editorial board of the American Bar Association's "The Judges Journal", who invited me to write an article about the unequal access to justice in these cases? They're "insiders".
I'm sorry if I offended you. I totally understand that you are not an apologist for the entire legal system. I just marvel at your tenacity. As for my dishea[r]tened state being a luxury, as a citizen of another country, I can do very little to influence outcomes in the US (other than offer opinions in forums like this). At home (in Australia) however, I am slightly more involved in issues that I believe in. Good luck to you and all like you.
I wasn't offended. I just wanted to make it clear that I'm neither unaware of, nor afraid to criticize, the failings of a system that could allow a decision like that to be generated -- a decision that makes us a laughingstock among thinking people everywhere -- just because I work within that system.
I'm sorry Ray, but just how does an outside observer not draw the conclusion that the legal system is inherently corrupted? I know you can't answer the question (at least not publicly) and I and many others support your valiant efforts. However, its hard as someone from outside the US to not see your country as just the world's biggest banana republic. Where the law has the appearance of granite and the firmness of quicksand. A legal system whose flexibility is only ever exercised to the favour of power, never the other way. As an amateur student of early American history and the founding of your nation, I just find the underlying hypocrisy galling and the fall of the republic utterly disheartening.
I'm not here to be an apologist for erroneous decisions like this. In my blog post, after reporting the facts, I then wrote this editor's note:
Is it just me, or does this decision make no sense whatsoever? The Judge recognizes that the RIAA's investigation is insufficient to actually point to a copyright infringer, and that the only way to determine that there was a copyright infringement is to conduct a further investigation....but is directing the University, anyway, to turn over names of people who the Court recognizes may be completely innocent?
And I wrote a lengthy article for The Judges Journal, the quarterly publication of the American Bar Association written for the judges' section, for publication in its "Access to Justice" issue, in which I criticized this type of poor judicial work as creating an uneven playing field, and made 15 specific suggestions as to what judges like this needed to do that they were not doing.
The difference between you and me is that I can't afford the luxury of getting 'disheartened'. But I do get angry. And an illogical, indefensible decision like this one ticks me off.
Do you know if this is this an appealable order?
Good question. Actually, there's a split of authority on the subject. In several circuits the order is appealable as of right. In at least one circuit, the order is not appealable as of right. I don't happen to know how they would rule in the Ninth Circuit.
Several years ago a New Mexico Judge (IIRC) instructed the RIAA to bring further suits against individual defendants rather than join several in one action. For example, there is no accusation here that the various students acted in concert to infringe copyrights -- whatever each of them allegedly did, it was done on an individual basis. Did the University raise this issue with the judge? Does the ruling address it?
Well you're certainly on top of the issues. A number of judges, more than a dozen, have held that it is illegal to join the John Does. But the University did not raise it. The tenor of the motion was that they were looking out for the University's interests rather than those of the students.
The words "honest" and "RIAA" don't even belong in the same sentence. /sigh
Yes. Truly amazing. The RIAA lawyer tells the judge that the University will destroy the data if the motion is not granted. Leaving out the fact that the University told him that the data has been preserved. And the Judge "presumes" that that was an "honest mistake"?
I personally don't find it so controversial. The decision, handed down August 13th, just followed basic copyright law principles: if you license something, and it's used beyond the terms of the license, that's copyright infringement.
My guesstimates, for what they're worth, are that
-the RIAA has gone after ~40,000 people
-it's gotten around 25,000 default judgments
-it's collected almost nothing on the default judgments
-it's gotten around 10,000 settlements at an average of $3000, for a total of $30 million
-it's spent around $100 million.
Ray Beckerman's (a.k.a. NewYorkCountryLawyer) comments can be viewed here [blogspot.com] Apparently legal efforts like his are starting to pay off.
Thank you, dkleinsc. Yes, as Cmdr Taco wryly observed, the tide is turning.
Now what we need is for more people to fight rather than settle, more lawyers to join this worthy cause, and for people to exploit the rich panoply of defenses that are available to them, such as the fact that the RIAA can't collect statutory damages at all if the recording was not registered with the Copyright Office by the time the defendant began file-sharing.
First they ignore you, then they laugh at you, then they fight you, then you win.
They've gotten to the "fight you" stage. You're winning, Ray!
Thanks, Rudisaurus. I'll be glad when we've gotten to the "win" stage, and this war is over, because a lot of innocent people are getting hurt by this madness.