In theory, there's a distinct upper bound on the number of cases they can bring without a radical change in tactics. There are only so many judges, and it seems like a large percentage (if not a majority) are unhappy/made aware about their tricks. They will be on the lookout the next time they have a case brought to them.
Or is the churn in judges enough that they can always take it to a new, fresh judge?
Even in that case, you have to figure that their acts get around. If it's on Slashdot, you can be sure the judges are talking to each other or something.
I think the first wave is over. That was where the federal court system was caught off guard by the RIAA's litigation campaign. Big firms, fancy papers, high-faluting words, techno babble... it sounded and seemed legitimate, and no one was fighting back.
Now we're in phase 2. Some of the judges are starting to catch on that they've been taken for a ride.
Phase 3 will begin when most judges have become aware of the RIAA's lies. Phase 3 won't be pretty for the RIAA.
MediaSentry isn't licensed to perform PI work in, for example, Oregon. This bit them in the ass in a relatively well-known case. Ask NYCL for details -- he covered it on slashdot.
hey NYCL,
Re: your second link
Oral argument was scheduled for 1st July, a week ago. Any news on the outcome? (Or do we have to wait a while?)
If you're referring to Capitol v. Thomas, oral argument on the "making available" issue was rescheduled for August 4th, 10 AM, Duluth, Minnesota, federal courthouse, Courtroom 1.
I don't know if, in your dilligent efforts to keep the/. crowd informed of developments, you have to pick & choose what you think is worth submitting,
I do pick and choose what I submit to Slashdot, and the Slashdot editors only select some of my submissions. The best way to stay on top of everything is to follow my blog.
but if you do, can I pre-flag the outcome of this development for submission? That the whole 'making available' theory, after having been accepted, could be subsequently chucked (presumably invalidating the entire outcome of the case), looks like it might be a significant nail in the coffin of the RIAA's war on the public.
Absolutely that is one of the most important things going on, and I will definitely submit it to Slashdot when I learn of it. However, that will be covered by the mainstream press as well, and Ars Technica and Wired and everyone.... So if I happen to be in court or something the day the news breaks, I might well get scooped by people who are professional journalists. Me, I'm just a country lawyer.
Years ago I was a juror on a civil trial. At one point, the defence counsel had one of the attorneys for the plaintiffs on the stand. He read off one of the claims that attorney had made in the case and asked him if he'd ever argued anything contrary to it. "No, of course not." Then, the defence attorney read into the record part of a brief from another case where the witness had argued the exact opposite of what he now claimed. I won't say it's common, but it's not exactly unheard of.
The RIAA lying is quite routine in these cases. These people will say anything at all if they think it will help their case. Of course it's starting to catch up to them. In Maine, e.g., a Magistrate Judge suggested they be sanctioned for some lies they told, and a judge in Minnesota has recently learned that he was misled by the RIAA liars -- er, lawyers. And I have a hunch the contradictory lies noted in the posted articles will come back to haunt them as well.
Reading one of the comments made early in the process [blogspot.com] suggests that she was the person paying for the internet connection used in the infringement (a connection used off and on by her relatives). At the time of the infringement, however, there wasn't even a computer in the house, and supposedly, the infringement was done by someone accessing the (unsecured) wireless router.
1. She was the person who paid the Verizon bill.
2. She has never used a computer.
3. The only reason she is the defendant is because she is the person who paid the Verizon bill.
4. By the way, there is no evidence in the case that anyone else committed a copyright infringement, either.
Thank you for the confirmation that I am NOT insane for thinking so. Or at least not the only one.
I've read many of your past posts, Jane Q., and you are decidedly NOT insane (at least not in the area of copyright law; as to the rest of your life, on that I can't comment).
they DON'T believe they are fighting for justice or morals. They could not be that stupid
Well I'm not going to comment on how stupid they could be, I haven't sufficiently plumbed those depths... but you are certainly right that "they DON'T believe they are fighting for justice or morals." It is about nothing but money, and they know it. There are some people who will do anything if there's enough money in it, and these are that kind of people.
The RIAA is pushing for dismissal without prejudice to avoid the precedent that it is forced to pay lawyers fees every time it loses a lawsuit. If that happens the game is going to become much more expensive for them. They would face real risks when they file speculatively.
At the moment the RIAA are probably spending as much in lawyers fees as they recover.
Actually, my guess is that they are spending 2 or 3 times as much in legal fees as they recover.
If they were paying defendants costs in losing cases they would face huge los[s]es.
I think they are already experiencing substantial losses, and have for several years now.
The lawyers for the RIAA know this and are desperate to keep their meal ticket.
Yes but I think they'd better prepare themselves; this meal ticket is going bye bye.
Now, what is the situation when the RIAA wins a suit. Do they demand their legal fees in that case?
Who knows? I've never known them to win a contested case.
There is a line there, and it's pretty clear the RIAA's lawyers have stepped way over it.
A lawyer is first and foremost, an officer of the court. Then, they are to be zealous advocates for their client's case. That advocacy may not, however, cross the line into illegal or unethical practices.
It is fully expected that a lawyer will argue the facts of a case in the light most favorable to the client's position. It's another matter entirely to attempt to deceive the court or to knowingly abuse the court process for the client's benefit.
Exactly. The RIAA lawyers aren't familiar with those pages from the Code of Professional Responsibility.
Anyone else notice that the motion also seeks to sanction the defendant and her lawyer for "discovery abuse"? The RIAA's lawyers actually have the gall to accuse someone else of "discovery abuse"? If there's worse case of the pot calling the kettle black, please let me know.
No there is not a worse case of the pot calling the kettle black.
Lawyers have to be "zealous advocates" for their clients. That's their job. Would you hire a lawyer who won't go to the mat for you? More than that, it's an ethical imperative. Everyone who's crying out for professional penalties doesn't understand the nature of the profession.
I have a great deal of respect for NYCL. He fights like hell for his clients. Of course, that means everything he says is biased for the defense. And everything the plaintiff's lawyers say is biased for the plaintiffs. That doesn't mean either of them are correct about what really happened -- they're just advocating the theory that best suits their client's wishes. And neither of them should be penalized for that, because that's how the system should work.
I respectfully disagree. The duty to be a "zealous advocate" has to be balanced against the many other duties a lawyer has, under the general concept of serving as an "officer of the court", such as duties not to to make false statements of fact, duties not to mislead the court on the law, duties to investigate before suing, the duty not to sign frivolous or false documents, the duty not to do unnecessary harm to people with whom you come in contact, etc., etc. I would never do, on behalf of any client, the things the RIAA lawyers have done. There are lawyers, and there are attack dogs; these are attack dogs. I do not consider them to be genuinely a part of my profession.
And if you read Beckerman's response at http://recordingindustryvspeople.blogspot.com/2008/07/ms-lindor-opposes-riaa-attempt-to.html then you'd have your response. He clearly lays out how any prejudice is solely plaintiff's fault. Further, he points out the defendant is an individual not accountable for anyone else's actions, and that discovery was completed 2 years ago but that the palintiff waited until the end to complain about discovery. Further, the complaint is to the wrong judge and filed in the wrong fashion, with additional defects. All of those flaws in the plaintiff's argument make it unlikely sanctions are either warranted or will be granted.
It's quite obvious they want everyone to feel that regardless of the findings of a court, the defendant will have lost, and it's best to do as they say in the first place, regardless of guilt or innocence. RIAA doesn't care much about appearing to be in the right or anything anymore, they just want to induce fear, safe in the knowledge people will still fund the music industry as they way RIAA leads it.
Why was the above post moderated "Interesting"? I don't understand. Did its author RTFA? Here was my "comment on the merit of this request", within the constraint of a 3-page page limit.
I.e., the plaintiffs' "request" is pure, unadulterated falsehood... it is one lie after another.
The RIAA's lawsuits are purely speculative, based on a standard of "evidence" that would be laughed out of court in any other area. When there is no penalty for speculative litigation, litigation becomes a business method instead of an instrument of last resort. This case needs to be dismissed With Prejudice to counteract this misuse of the legal system.
In addition, the RIAA as plaintiffs suffer no discomfort from a failed lawsuit, as it's all just paperwork and their daily office job for them. In contrast, their defendants suffer horribly from the process win or lose, with years of their lives being damaged and unrecoverable, since the litigation process is entirely foreign to their normal lives. This is unbalanced, unfair, and inadequate.
Both areas need redress, starting with dismissal With Prejudice and including compensation to the defendant for harm caused. But really more than that is needed. The RIAA lawyers themselves need to suffer some kind of professional penalty that will stay on their record, or this kind of legal abuse will not stop. Without negative feedback, systems spiral out of control, and that is as true in law as in science.
I agree. But I am expecting the RIAA's lawyers, who on a daily basis have been making many false statements of fact to the courts, working with unlicensed investigators, misstating the law, and using illegal procedures, to be called to task eventually. It will no doubt be too little, too late, but I'm expecting repercussions for what they've done.
But how about something to compensate her for the harassment, stress, and general upheaval of her life for three years? The RIAA might cave in to paying her fees if they have no other way out of it, but a nice fat damage award would go a long way toward tempering the cartel's tactics, and to encourage others who have been sued. Of course, to get such an award she would probably have to file some sort of countersuit against them, and I doubt she has the stomach for that right now. Shows how in our legal system, even when you win, you still lose to some degree.
Unfortunately, I can't disagree with anything you just said.
It's an imperfect system, and definitely being abused at the moment by the large 'rights holders', who have engaged in a maelstrom of litigation in reaction to their imminent demise.
What would be interesting to find out is if the **AA attorneys had internally discussed the issue of private investigator credentials before the public or defendants raised the matter. Because if the **AA lawyers knew and didn't say anything to the Judges, they'd be looking at sanctions.
1. They're not smart enough to have thought about it on their own.
2. Tanya Andersen's lawyer thought about it for them in October 2005, so they've been on notice since then.
3. So yes they have exposure to sanctions, big time.
4. Or maybe worse, because they are aiders and abetters. If you hire a hit man you're equally guilty of the murder. We're talking criminal law here, because the use of unlicensed investigators is a criminal matter.
It looks as if the RIAA's reputation in court is at last cracking. They've been getting away with a lot of crap an individual couldn't do, because courts have been more believing in the professionalism of corporate lawyers and corporate lawsuits. Courts are no longer taking the RIAA's professionalism for granted.
Yes I think you're right. For a judge to publicly acknowledge that he made a "manifest error of law", because he was misled by the RIAA's lawyers, is extraordinary.
Slashdot Mirror
In theory, there's a distinct upper bound on the number of cases they can bring without a radical change in tactics. There are only so many judges, and it seems like a large percentage (if not a majority) are unhappy/made aware about their tricks. They will be on the lookout the next time they have a case brought to them. Or is the churn in judges enough that they can always take it to a new, fresh judge? Even in that case, you have to figure that their acts get around. If it's on Slashdot, you can be sure the judges are talking to each other or something.
I think the first wave is over. That was where the federal court system was caught off guard by the RIAA's litigation campaign. Big firms, fancy papers, high-faluting words, techno babble... it sounded and seemed legitimate, and no one was fighting back.
Now we're in phase 2. Some of the judges are starting to catch on that they've been taken for a ride.
Phase 3 will begin when most judges have become aware of the RIAA's lies. Phase 3 won't be pretty for the RIAA.
MediaSentry isn't licensed to perform PI work in, for example, Oregon. This bit them in the ass in a relatively well-known case. Ask NYCL for details -- he covered it on slashdot.
You think the Oregon Attorney General hurt their feelings?
I wonder if the statements from Michigan can be sent to Lindor's legal team?
I am "Lindor's legal team".
hey NYCL, Re: your second link Oral argument was scheduled for 1st July, a week ago. Any news on the outcome? (Or do we have to wait a while?)
If you're referring to Capitol v. Thomas, oral argument on the "making available" issue was rescheduled for August 4th, 10 AM, Duluth, Minnesota, federal courthouse, Courtroom 1.
I don't know if, in your dilligent efforts to keep the /. crowd informed of developments, you have to pick & choose what you think is worth submitting,
I do pick and choose what I submit to Slashdot, and the Slashdot editors only select some of my submissions. The best way to stay on top of everything is to follow my blog.
but if you do, can I pre-flag the outcome of this development for submission? That the whole 'making available' theory, after having been accepted, could be subsequently chucked (presumably invalidating the entire outcome of the case), looks like it might be a significant nail in the coffin of the RIAA's war on the public.
Absolutely that is one of the most important things going on, and I will definitely submit it to Slashdot when I learn of it. However, that will be covered by the mainstream press as well, and Ars Technica and Wired and everyone.... So if I happen to be in court or something the day the news breaks, I might well get scooped by people who are professional journalists. Me, I'm just a country lawyer.
Dear NewYorkCountryLawyer: You rock. Dear RIAA: Haha. Self-pwnt.
Why thank you, The Master.
Years ago I was a juror on a civil trial. At one point, the defence counsel had one of the attorneys for the plaintiffs on the stand. He read off one of the claims that attorney had made in the case and asked him if he'd ever argued anything contrary to it. "No, of course not." Then, the defence attorney read into the record part of a brief from another case where the witness had argued the exact opposite of what he now claimed. I won't say it's common, but it's not exactly unheard of.
The RIAA lying is quite routine in these cases. These people will say anything at all if they think it will help their case. Of course it's starting to catch up to them. In Maine, e.g., a Magistrate Judge suggested they be sanctioned for some lies they told, and a judge in Minnesota has recently learned that he was misled by the RIAA liars -- er, lawyers. And I have a hunch the contradictory lies noted in the posted articles will come back to haunt them as well.
He didn't sound very optimistic to me.
Well, compared to you, I am new here.
Thanks for the chuckle, by the way.
Reading one of the comments made early in the process [blogspot.com] suggests that she was the person paying for the internet connection used in the infringement (a connection used off and on by her relatives). At the time of the infringement, however, there wasn't even a computer in the house, and supposedly, the infringement was done by someone accessing the (unsecured) wireless router.
1. She was the person who paid the Verizon bill.
2. She has never used a computer.
3. The only reason she is the defendant is because she is the person who paid the Verizon bill.
4. By the way, there is no evidence in the case that anyone else committed a copyright infringement, either.
Thank you for the confirmation that I am NOT insane for thinking so. Or at least not the only one.
I've read many of your past posts, Jane Q., and you are decidedly NOT insane (at least not in the area of copyright law; as to the rest of your life, on that I can't comment).
they DON'T believe they are fighting for justice or morals. They could not be that stupid
Well I'm not going to comment on how stupid they could be, I haven't sufficiently plumbed those depths... but you are certainly right that "they DON'T believe they are fighting for justice or morals." It is about nothing but money, and they know it. There are some people who will do anything if there's enough money in it, and these are that kind of people.
It is the courts (or more specifically, judges) who determine what is fact and what is not fact.
What a strange world it would be were that the case. But it is not. No one, not even a judge, can alter the truth.
The RIAA is pushing for dismissal without prejudice to avoid the precedent that it is forced to pay lawyers fees every time it loses a lawsuit. If that happens the game is going to become much more expensive for them. They would face real risks when they file speculatively. At the moment the RIAA are probably spending as much in lawyers fees as they recover.
Actually, my guess is that they are spending 2 or 3 times as much in legal fees as they recover.
If they were paying defendants costs in losing cases they would face huge los[s]es.
I think they are already experiencing substantial losses, and have for several years now.
The lawyers for the RIAA know this and are desperate to keep their meal ticket.
Yes but I think they'd better prepare themselves; this meal ticket is going bye bye.
Now, what is the situation when the RIAA wins a suit. Do they demand their legal fees in that case?
Who knows? I've never known them to win a contested case.
There is a line there, and it's pretty clear the RIAA's lawyers have stepped way over it. A lawyer is first and foremost, an officer of the court. Then, they are to be zealous advocates for their client's case. That advocacy may not, however, cross the line into illegal or unethical practices. It is fully expected that a lawyer will argue the facts of a case in the light most favorable to the client's position. It's another matter entirely to attempt to deceive the court or to knowingly abuse the court process for the client's benefit.
Exactly. The RIAA lawyers aren't familiar with those pages from the Code of Professional Responsibility.
Anyone else notice that the motion also seeks to sanction the defendant and her lawyer for "discovery abuse"? The RIAA's lawyers actually have the gall to accuse someone else of "discovery abuse"? If there's worse case of the pot calling the kettle black, please let me know.
No there is not a worse case of the pot calling the kettle black.
Lawyers have to be "zealous advocates" for their clients. That's their job. Would you hire a lawyer who won't go to the mat for you? More than that, it's an ethical imperative. Everyone who's crying out for professional penalties doesn't understand the nature of the profession. I have a great deal of respect for NYCL. He fights like hell for his clients. Of course, that means everything he says is biased for the defense. And everything the plaintiff's lawyers say is biased for the plaintiffs. That doesn't mean either of them are correct about what really happened -- they're just advocating the theory that best suits their client's wishes. And neither of them should be penalized for that, because that's how the system should work.
I respectfully disagree. The duty to be a "zealous advocate" has to be balanced against the many other duties a lawyer has, under the general concept of serving as an "officer of the court", such as duties not to to make false statements of fact, duties not to mislead the court on the law, duties to investigate before suing, the duty not to sign frivolous or false documents, the duty not to do unnecessary harm to people with whom you come in contact, etc., etc. I would never do, on behalf of any client, the things the RIAA lawyers have done. There are lawyers, and there are attack dogs; these are attack dogs. I do not consider them to be genuinely a part of my profession.
Am I the only one who thought the story was about the RIAA suing a 3 year old?
Yes.
Yes I'm quite sure you are.
And if you read Beckerman's response at http://recordingindustryvspeople.blogspot.com/2008/07/ms-lindor-opposes-riaa-attempt-to.html then you'd have your response. He clearly lays out how any prejudice is solely plaintiff's fault. Further, he points out the defendant is an individual not accountable for anyone else's actions, and that discovery was completed 2 years ago but that the palintiff waited until the end to complain about discovery. Further, the complaint is to the wrong judge and filed in the wrong fashion, with additional defects. All of those flaws in the plaintiff's argument make it unlikely sanctions are either warranted or will be granted.
Thank you for RTFA.
It's quite obvious they want everyone to feel that regardless of the findings of a court, the defendant will have lost, and it's best to do as they say in the first place, regardless of guilt or innocence. RIAA doesn't care much about appearing to be in the right or anything anymore, they just want to induce fear, safe in the knowledge people will still fund the music industry as they way RIAA leads it.
Precisely. Which is why Dow Jones Market Watch compared them to the Mafia.
Who is responsible for calling those lawyers to task?
The judges.
And who is capable of officially raising the matter for consideration?
The parties or the judges.
Why was the above post moderated "Interesting"? I don't understand. Did its author RTFA? Here was my "comment on the merit of this request", within the constraint of a 3-page page limit.
I.e., the plaintiffs' "request" is pure, unadulterated falsehood... it is one lie after another.
The RIAA's lawsuits are purely speculative, based on a standard of "evidence" that would be laughed out of court in any other area. When there is no penalty for speculative litigation, litigation becomes a business method instead of an instrument of last resort. This case needs to be dismissed With Prejudice to counteract this misuse of the legal system. In addition, the RIAA as plaintiffs suffer no discomfort from a failed lawsuit, as it's all just paperwork and their daily office job for them. In contrast, their defendants suffer horribly from the process win or lose, with years of their lives being damaged and unrecoverable, since the litigation process is entirely foreign to their normal lives. This is unbalanced, unfair, and inadequate. Both areas need redress, starting with dismissal With Prejudice and including compensation to the defendant for harm caused. But really more than that is needed. The RIAA lawyers themselves need to suffer some kind of professional penalty that will stay on their record, or this kind of legal abuse will not stop. Without negative feedback, systems spiral out of control, and that is as true in law as in science.
I agree. But I am expecting the RIAA's lawyers, who on a daily basis have been making many false statements of fact to the courts, working with unlicensed investigators, misstating the law, and using illegal procedures, to be called to task eventually. It will no doubt be too little, too late, but I'm expecting repercussions for what they've done.
But how about something to compensate her for the harassment, stress, and general upheaval of her life for three years? The RIAA might cave in to paying her fees if they have no other way out of it, but a nice fat damage award would go a long way toward tempering the cartel's tactics, and to encourage others who have been sued. Of course, to get such an award she would probably have to file some sort of countersuit against them, and I doubt she has the stomach for that right now. Shows how in our legal system, even when you win, you still lose to some degree.
Unfortunately, I can't disagree with anything you just said.
It's an imperfect system, and definitely being abused at the moment by the large 'rights holders', who have engaged in a maelstrom of litigation in reaction to their imminent demise.
What would be interesting to find out is if the **AA attorneys had internally discussed the issue of private investigator credentials before the public or defendants raised the matter. Because if the **AA lawyers knew and didn't say anything to the Judges, they'd be looking at sanctions.
1. They're not smart enough to have thought about it on their own.
2. Tanya Andersen's lawyer thought about it for them in October 2005, so they've been on notice since then.
3. So yes they have exposure to sanctions, big time.
4. Or maybe worse, because they are aiders and abetters. If you hire a hit man you're equally guilty of the murder. We're talking criminal law here, because the use of unlicensed investigators is a criminal matter.
It looks as if the RIAA's reputation in court is at last cracking. They've been getting away with a lot of crap an individual couldn't do, because courts have been more believing in the professionalism of corporate lawyers and corporate lawsuits. Courts are no longer taking the RIAA's professionalism for granted.
Yes I think you're right. For a judge to publicly acknowledge that he made a "manifest error of law", because he was misled by the RIAA's lawyers, is extraordinary.