Hi Ray;
You've mentioned a couple of times in this discussion that in the Capitol v. Thomas case the judge was wrong or made an error.
That's strong wording, leaving me (a/.-er) with some questions. Is this "error" your opinion, or a legal fact? And if it's fact, is there an appeal in the works and/or can they appeal? Do judges bear any responsibility for making such errors?...just trying to understand how something this basic can get two completely different rulings: it seems pretty clear to me that only one of the two rulings can be a correct interpretation of the law. I guess you could, theoretically, say it's an opinion, and that the RIAA has a different opinion. But the RIAA has no legal basis for its opinion, while I have a clearly worded statute, unanimity among all of the leading scholars, and decades of legal precedent to support my opinion. So when does expression of a solid opinion based on law become 'fact', and when does an opinion based on nothing become a 'lie'? You be the judge, but there is a point at which the expression of a frivolous opinion is so outlandish as to become false and misleading.
Meanwhile, on the facts, the RIAA is always lying.
As to how the judge made the error in the Thomas case, it's obvious:
the RIAA lawyer was willing to say misleading things to the judge,
Ms. Thomas's lawyer wasn't sufficientlyl prepared to rebut them, and
the judge made the mistake of changing his mind in the heat of battle, instead of sticking with the decision he'd made beforehand when he and his staff had had enough time to do the requisite legal reading.
[W]hat do you think about how this ruling came about even though the defendant defaulted? As I understand it, it's NOT generally a good idea, but thanks to the oddities of RIAA litigation, those who have defaulted haven't done half bad in the cases I've seen, at least comparatively. Well I have no statistics, but it's clear that many, many cases in which the defendant defaulted have resulted in judgments against the defendant.
However, you're absolutely right that some of the best rulings have come in default cases, which of course really has to make you wonder. Examples are Interscope v. Rodriguez, this case, and Atlantic v. Dangler.
Thing is, in Dangler they came back with a reconsideration motion, there was still no one fighting back, and the judge was hoodwinked by the RIAA's mountain of phony papers, and went ahead and entered the judgment.
I also liked that expert report from the other day. I really hope that information gets presented in court a lot more often. Yes, Prof. Pouwelse's report is a landmark event, and thoroughly exposes the RIAA's junk science as 'borderline incompetence'. (See discussion on Groklaw.)
Why not submit this to the official slashdot poll? With a referencial link to the case/this story, of course.
Also, b. I'm hoping to seem something wacky in d, but I think b. How?
This case is legal precedent in only New York, Vermont and Connecticut.
Judges will take into consideration what other circuits have decided, but they are certainly not bound by it. It's not binding anywhere, other than in the case in which it was rendered.
But where a judge has done his or her homework, and is right.... other judges will follow. This judge has done her homework, and is right. Other judges will follow.
And when these issues get to an appeals court, there is no other possible answer than the one she gave: (a) the complaint doesn't satisfy the federal pleading standards for the alleged violations of the right of reproduction (uploading and downloading), (b) there is no such thing as a claim for 'making files available for distribution', (c) there is a meritorious defense of copyright misuse, and (d) there is a meritorious defense of unconstitutionality of the plaintiffs' statutory damages theory.
This is a blow not only against the RIAA legal machine, but also against "thought crime" of all sorts (such as the argument that selling guns facilitates murder). So even as significant as it is by itself, it is a FAR more important decision than it appears. Indeed it is. A judge telling the emperor he wears no clothes. This may be the beginning of the end.
D) Slightly change the wording of their argument and keep on truckin' They did indeed do that in Interscope v. Rodriguez, but for some reason they skipped out on actually serving the amended "argument".
I'm going with choice "b"
b) Bury the judge in paper with a 'reconsideration' motion.
I think I remember reading that they've tended to use this tactic in other cases and non-court situations too. They did indeed use that tactic in Atlantic v. Dangler and Interscope v. Does 1-y.
The RIAA also lost an uncontested case, the other day. This guy not only didn't have a lawyer, he didn't even show up. And the RIAA still lost because it neglected to include any facts, producing only a 'boilerplate' complaint that could have equally well applied to anyone the RIAA sued.
I'd submit this as a story, but it's too much of a rehash now, so feel free to discuss both of the RIAA's losses here. It's the same case.
Why is making available rejected in this case but not in the Thom[as] case? Because the judge in the Thomas case made an error.
How are these different? No difference. The judge's instructions to the jury in Capitol v. Thomas should have been precisely what Judge Arterton said:
""[W]ithout actual distribution of copies.... there is no violation [of] the distribution right." 4 William F. Patry, Patry on Copyright 13:9 (2007); see also id. N. 10 (collecting cases); Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1162 (9th Cir. 2007)(affirming the district court's finding "that distribution requires an 'actual dissemination' of a copy")".
It's worth noting that unlike the typical NewYorkCountryLawyer story gloating about how the RIAA lost some motion on some case somewhere, this is a potentially major development. Thanks.
I'm proud to be in the vanguard of the struggle to save Earth from the clones. I thought you were helping to save us from some clowns. Clowns. Clones. Klingons. And other clammy clods who make up the RIAA ranks.
Good work! Parallels SCO's apparent attack on Pamela Jones, creator of Groklaw. I've been lurking on both sites for a very long time, and greatly appreciate getting the facts and the sources. Reading source docs are important in calibrating the BS filters. I feel honored to be mentioned in the same breath as PJ. She is a giant.
What I find annoying in my own law practice against similarly well-heeled opponents, is the great reluctance of the bench to sanction [cornell.edu] some kinds of lawyers or parties for abuse of the judicial system. I would very much love to see NYCL get a dismissal or considerable sum of cash as a sanction as a result of time wasted on egregious tactics. Well maybe things are starting to move in that direction, with the Magistrate's suggestion of Rule 11 sanctions in the University of Maine "John Doe" case, and with the attorneys fee rulings in Capitol v. Foster and Atlantic v. Andersen
he keeps contributing massively and acts as a bridge between us and that strange foreign legal world where logic will get you killed Hey, I work in that world and the fact is that there is a strict logic to law- you just need to know the rules to play by. though I am not saying that you have a crooked view, a lot of people do from watching movies and tv shows and such- they tend to think that some flashy actor type shows up in a courtroom and puts on a show and a bunch of jury people laugh or cry and find in favor of their side- actually the truth is quite the opposite from where I sit. I work for a corporate litigation review company doing intake and data extraction/database integration (I mine and decrypt documents for metadata and any usable text and load and reconcile it in a database, basically) and I have to tell you- we are based here on true logic incorporating lawyers, linguists and techies like myself to setup algorithms and linguistic probability to match relevancies with case properties and language patterns in order to set up situations where lawyers can proceed based on fact rather than speculation and match documentary evidence with standing cases rather than speculation. You're right to debunk the myth of flashy actor types waltzing into courtrooms and putting on a show, etc.
But eldavojohn has a point about "logic". When I went to law school I thought the law would involve a lot of logic. And perhaps it does. But some of the most illogical things I have seen in the entire universe have been laws. And in the next tier of illogic, have been some entirely inexplicable judicial rulings (See, e.g., pattern of rulings in UMG v. Lindor and other cases in Brooklyn, including holding that an "expert witness" who meets NONE of the Daubert reliability factors can testify as an expert anyway, or that defendant is not entitled to discovery of the contracts under which plaintiffs' witness was hired to gather "evidence" and testify, or that the rule requiring random assignment of cases can be avoided because the Magistrate has presided over 350 settlements which the judge -- who didn't have to pay them and knows nothing about the facts or circumstances of any of them -- thinks are "equitable", even though NOT ONE of the defendants would agree with that appraisal.)
I'm used to being forced to concede points to people who make very good points, and reconsider my position because of them. Good lawyers (as opposed to the RIAA's lawyers) do that all the time.
The RIAA's lawyers never concede anything unless the judge calls them on it. (See, e.g. Transcript of January 26, 2007, oral argument in Elektra v. Barker.). Even then, the next time they're in court with a different judge, they'll say the same stupid thing anyway, hoping the second judge won't find out about the first one.
I guess the RIAA hate it when you lift up the rock from under which they dwell, and expose their churning, writhing selves to the bright sunlight of truth. Yes, that ruins their day.
Slashdot Mirror
Meanwhile, on the facts, the RIAA is always lying.
As to how the judge made the error in the Thomas case, it's obvious:
the RIAA lawyer was willing to say misleading things to the judge,
Ms. Thomas's lawyer wasn't sufficientlyl prepared to rebut them, and
the judge made the mistake of changing his mind in the heat of battle, instead of sticking with the decision he'd made beforehand when he and his staff had had enough time to do the requisite legal reading.
However, you're absolutely right that some of the best rulings have come in default cases, which of course really has to make you wonder. Examples are Interscope v. Rodriguez, this case, and Atlantic v. Dangler.
Thing is, in Dangler they came back with a reconsideration motion, there was still no one fighting back, and the judge was hoodwinked by the RIAA's mountain of phony papers, and went ahead and entered the judgment. I also liked that expert report from the other day. I really hope that information gets presented in court a lot more often. Yes, Prof. Pouwelse's report is a landmark event, and thoroughly exposes the RIAA's junk science as 'borderline incompetence'. (See discussion on Groklaw.)
But where a judge has done his or her homework, and is right.... other judges will follow. This judge has done her homework, and is right. Other judges will follow.
And when these issues get to an appeals court, there is no other possible answer than the one she gave: (a) the complaint doesn't satisfy the federal pleading standards for the alleged violations of the right of reproduction (uploading and downloading), (b) there is no such thing as a claim for 'making files available for distribution', (c) there is a meritorious defense of copyright misuse, and (d) there is a meritorious defense of unconstitutionality of the plaintiffs' statutory damages theory.
And these are their spokespersons.
I'm taking a poll. What do you think the RIAA will do now with this case?
(a) Walk away.
(b) Bury the judge in paper with a 'reconsideration' motion.
(c) Ask Mr. Brennan to "settle".
(d) Other.
OSU could have, and should have, opposed the request, since it was not legally correct. See, e.g., University of Oregon's motion to quash.
You are absolutely right that Rule 11 is too infrequently invoked, especially against large firms. But the RIAA's lawyers are heading there.
But eldavojohn has a point about "logic". When I went to law school I thought the law would involve a lot of logic. And perhaps it does. But some of the most illogical things I have seen in the entire universe have been laws. And in the next tier of illogic, have been some entirely inexplicable judicial rulings (See, e.g., pattern of rulings in UMG v. Lindor and other cases in Brooklyn, including holding that an "expert witness" who meets NONE of the Daubert reliability factors can testify as an expert anyway, or that defendant is not entitled to discovery of the contracts under which plaintiffs' witness was hired to gather "evidence" and testify, or that the rule requiring random assignment of cases can be avoided because the Magistrate has presided over 350 settlements which the judge -- who didn't have to pay them and knows nothing about the facts or circumstances of any of them -- thinks are "equitable", even though NOT ONE of the defendants would agree with that appraisal.)
The RIAA's lawyers never concede anything unless the judge calls them on it. (See, e.g. Transcript of January 26, 2007, oral argument in Elektra v. Barker.). Even then, the next time they're in court with a different judge, they'll say the same stupid thing anyway, hoping the second judge won't find out about the first one.
The papers are controlled by Richard Gabriel of Holme Roberts & Owen in Denver, CO.