Slashdot Log In
RIAA Conceals Overturned Case
Posted by
Zonk
on Sat Oct 06, 2007 05:43 PM
from the shoe-is-on-the-other-foot dept.
from the shoe-is-on-the-other-foot dept.
NewYorkCountryLawyer writes "When a Judge agreed with the RIAA's claim that 'making available' was actionable under the Copyright Act, in Atlantic v. Howell, the RIAA was quick to bring this 'authority' to the attention of the judges in Elektra v. Barker and Warner v. Cassin. Those judges were considering the same issue. When the that decision was overturned successfully, however, they were not so quick to inform those same judges of this new development. When the defendants' lawyers found out — a week after the RIAA's lawyers learned of it — they had to notify the judges themselves . At this moment we can only speculate as to what legal authorities they cited to the judge in Duluth, Minnesota, to get him to instruct the jurors that just 'making available' was good enough."
Related Stories
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
MY GOD! (Score:3, Funny)
Re:MY GOD! (Score:5, Informative)
-GiH
Parent
Re:MY GOD! (Score:5, Interesting)
Presenting the evidence in the first place sounds fine but when they learned that the case was overturned, shouldn't they be required by law to inform the court that the evidence they submitted had been negated.
To me it sounds like submitting matched DNA evidence at the beginning of a trial and then learning that it was actually inconclusive halfway through the trial and not informing the defence. Isn't that illegal?
Parent
Re:MY GOD! (Score:5, Interesting)
In this particular situation, the local ethics rules would determine how close to the line the RIAA came. Citing cases that an attorney knows have been overturned is generally a no-no. It would not per se result in a loss for that attorneys side (it is really just an ethical breach). However, it would cast a huge shadow over the attorney's argument. In this case, it sounds like the case was not overturned when the RIAA cited it (I could be wrong because, of course, I haven't read the actual article). Even if they didn't actually cross the line, many judges would fly off the handle if a party cited a case of particular importance for a keystone point and failed to alert them that it had been overturned if the citing party knew it had been overturned (such as if the citing party were a party to the overturned case).
Parent
Re:MY GOD! (Score:4, Interesting)
While the definition of perjury seems in recent years to have slid somewhat, claiming to be an expert in order to pass off misleading information as fact. Especially when it is used to manufacture evidence which shouldn't be admissible in court to prop up a poorly thought out case.
Ethics thus far have not been of any real concern to the RIAA, so I can only imagine why they would want to start behaving at this juncture having already gotten away with far more than is common. Seems to me that if they haven't been worried about being disbarred for their less than professional behavior up until now that this won't be the tipping point.
Parent
Re:MY GOD! (Score:5, Insightful)
Parent
Re: (Score:3, Insightful)
Re:MY GOD! (Score:4, Informative)
Parent
Countersuing Microsoft, Sony, etal (Score:5, Insightful)
Re:Countersuing Microsoft, Sony, etal (Score:5, Insightful)
Parent
Re:Countersuing Microsoft, Sony, etal (Score:5, Informative)
Parent
How does this affect closed cases (Score:5, Interesting)
Parent
Re:How does this affect closed cases (Score:4, Informative)
Parent
Re: (Score:3, Insightful)
Re:How does this affect closed cases (Score:5, Interesting)
Parent
Re:Countersuing Microsoft, Sony, etal (Score:5, Informative)
A lawyer is an "officer of the court" and must be truthful to the court. A lawyer must inform a court of law that is on point and contradicts his argument. He can argue for a change in the law or for a finding that it is unconstitutional, but he cannot simply ignore bad law in hopes of fooling a judge.
That doesn't mean there aren't lawyers who break the rules. But those of us who care about the profession do not admire attorneys who lie to judges, opposing counsel, or anyone else for that matter.
Parent
Re:Countersuing Microsoft, Sony, etal (Score:5, Insightful)
Thank you for bringing this to my attention! I wasn't aware of this "ethical truth", and I'll definitely have to mend my ways.
The next time I buy a CD, I'll play it only when I'm sure that no one else is around to hear it, unless I know they also have bought a copy. But even that may be ethically questionable since they're not listening to their copy but to mine. Like homeopathic water, even though the sound waves are physically indistinguishable, it might be possible they have a "memory" of which CD they came from - which might not be the same physical CD my friend purchased. Oh, the immorality!
And when I bring my friends over to watch a movie, I'll make sure they bring their own DVDs and DVD players, and carefully position everyone so they can't peak at the other guy's copy being played, thus preventing any possibility of ethical leakage.
Parent
Gowachin Justice (Score:5, Funny)
Re:Gowachin Justice (Score:4, Funny)
Parent
Re:Gowachin Justice (Score:4, Funny)
Parent
Re: Justice??? (Score:3, Funny)
NewYorkCountryLawyer is a Minor Deity here at
I cannot abide some RIAA sleaze taking him out.
Ethical violation (Score:5, Informative)
There is an ethical obligation to inform the court of legal authority (cases) in the controlling jurisdiction (same state, or federal circuit, for example) known to the lawyer to be directly adverse to the position of the client. See ABA Model Rules of Professional Conduct, Rule 3.3(a)(2).
Rule 3.3(a)(3) prohibits offering "false evidence." Not quite on point, because legal authority is not "evidence".
The commentary suggests that a "lawyer must not allow the tribunal to be misled by false statement of law or fact or evidence that the lawyer knows to be false." Rule 3.3, cmt. 2. That's pretty inclusive, and I'd feel comfortable arguing that failing to disclose the reversal of authority you've previous cited is an ethical violation. A referal to the state bar commission could be in order here, and let them sort it out.
Re:Ethical violation (Score:5, Funny)
Parent
Re:Ethical violation (Score:5, Insightful)
Parent
Re:Ethical violation (Score:5, Funny)
Parent
when is a judge in MN bound by a decision in NY? (Score:4, Informative)
In our federal system, when is a trial judge in Minnesota bound by an decision in New York?
If he is a federal judge, he looks first to appellate decisions within his own Circuit - the Eighth. U.S. Courts [uscourts.gov] If he is a state judge, he looks first to appellate decisions within his own state.
But he is free to roll his own, subject only to the risk of reversal on appeal.
It is within bounds for a trial judge in Duluth to decide that the opinion of a trial judge in New York was correctly reasoned and that the opinion of the appellate court in New York was not.
The sate appellate courts of Minnesota can disagree with the state appellate courts of New York.
The Eighth Circuit Court of Appeals in St. Louis can - respectfully - disagree with the Second Circuit Court of Appeals in New York.
It is the responsibility of the U.S. Supreme Court to resolve such conflicts - if it believes that they are needlessly disruptive and of Constitutional significance.
But the Supremes take on only 100-200 cases a year.
Here's a tip...don't take the stand (Score:3, Interesting)
http://arstechnica.com/news.ars/post/20071003-judge-bars-riaa-president-from-testifying-in-capitol-records-v-thomas.html [arstechnica.com]
This afternoon also marked the appearance of Jammie Thomas [defendant] on the stand. She was called by the plaintiffs immediately after lunch, who started by questioning her about her experience with computers.
NEVER let the defendant testify, especially in first trial! Or is this a civil case where you have no 5th amendment rights? Anyway...
The questioning then turned to her CD-ripping habits. In her deposition, Thomas said that she ripped no more than six or seven CDs per day, but on the stand today, she said she could have ripped over 2,000 songs in a little over two days.
Wow. Then,
She originally had said that she bought the PC from Best Buy in 2003 and that the hard drive was replaced in January or February of 2004. After her forensic expert inspected the hard drive and found that it wasn't manufactured until January 2005, she then said that she bought the PC in 2004 and that the hard drive was replaced in March 2005. "I was a year off on everything in my deposition," she said.
Lying on the stand isn't good either.
Finally,
"He also said that the 'jury could do the math' on whether it was possible for her to rip 2,000 or so tracks over a two-day period given the demonstration earlier in the day."
Well, I'm a bit surprised too...but...this is the best defense?
Silly me, I thought the RIAA spoofed her computer and faked the whole thing.
Paypal Fund for Contributions to Jammie Thomas (Score:4, Informative)
Re:My head is spinning (Score:5, Insightful)
I'm not an American, so please forgive me if I'm not as knowledgeable of your legal system as you are.
Just as soon as you do something about getting it changed.... What is required? Are you demanding it? Or is it someone else's problem? Please don't take offence, but I've read the stories here that you have. I agree, it isn't changing, but perhaps that's because no-one is making it happen.
Parent
Re:My head is spinning (Score:5, Informative)
We have 3 branches of Govt: Congress, Judicial, and Executive.
Congress is a bicameral entity (similar to the house of lords and commons in the UK). Senate (one of those bodies) is comprised of 100 members. There are 2 from each state, so that every state has equal representation.
The other part of Congress is the House. It is made up of 435 members, representing population makeup through the states. This is so that more populated states can influence the law more, as there is more people affected by the law.
The executive branch represents the President, bureaucrats and others in executing laws made by Congress, however that idea has been perverted. The way the US looks now, the Executive branch (President) looks like they are the Judge, jury and executioner.
The way a law is passed: Congress writes a law (well, House and Senate write their own versions which must be arbitrated by committee). When/if law is passed by a simple majority, 50% +1, then said law goes to the presidents desk. If president signs, it is a law. If not, it is sent back to Congress for a 67% majority to veto the presidents choice.
The last branch is Judicial. They are the ones to rule on laws and breakings of said laws. The highest court is the Supreme Court, which there are 9 appointed judges (appointed by the Senate) which have lifetime seats. They rule purely on Constitutionality of laws passed by Congress. They have the ability to pass judgment on laws, strike them down, or define unclear terms. Many see that the Supreme court is probably more powerful than Congress or the Presidency.
_____
Now, how companies pass "Laws" as you probably have heard on Slashdot:
Congress doesnt exist in a vacuum, but instead well entrenched and 'sponsored' by different entities and interests. For example, Maine (a state) has heavy lumber interests, so the lumber industry donates money to the said political party. Even though there is no obligation for the party to do anything, they do the lumber entities interests in making law favorable to them.
Some lobbies have grown extremely powerful. For example, the RIAA is a lobby group brought forth by the Big 5 media companies. Big Pharma is another lobby, mainly on medical drugs. These companies and groups can literally buy laws by supporting both parties (the Republicans and Democrats) with their money coffers.
For indiduals, we have no recourse for bad laws other than voting the congress/president in or out
Parent
Re:My head is spinning (Score:4, Informative)
Also, the President can not sign the bill, and in seven days it becomes law. This would usually be done for either bills that don't allow for a big press conference, or for ones in which the President doesn't support, but knows the veto will be overturned.
Another mistake here, the Justices are appointed by the President, and then confirmed by the Senate.
Oh, and one other duty of the Executive branch is that the Vice President presides over the Senate, and casts tie-breaking votes (but only votes if there is a tie).
Nephilium
Parent
Re: (Score:3, Insightful)
Re:So What (Score:5, Informative)
Parent
Re: (Score:3, Insightful)
Re:legal appeal (Score:5, Informative)
-incorrect jury instructions which removed the plaintiffs' burden of proving a transfer of actual files
-the unconstitutionality of a verdict for about 30,000 times the actual damage, and
-allowing an "expert" to testify who doesn't meet the admissibility requirements under the Federal Rules.
I'm sure there were many others, but I wasn't there so I can't give you the list. I can tell you that the above three would be sufficient -- in fact each would be sufficient on its own -- to get a reversal.
Parent
never been ruled on (Score:3, Informative)
link to details (Score:4, Informative)
Parent
Re:legal appeal (Score:5, Informative)
Parent
Re:legal appeal (Score:4, Insightful)
Parent
Re: (Score:3, Informative)
Re:From what you say it sounds plausible (Score:5, Insightful)
Parent
Re: (Score:3, Informative)
So the plaintiff did not show file transfer. Could the plaintiff have done so if required?
No
Did they have the evidence of actual files being transferred?
No
If not, did they have the evidence that the computer in question shared real files and not just file stubs?
No
Didn't even have evidence that it shared file stubs.
As I understand, they never got to examine the hard drive.
Your understanding is wrong. They did examine the hard drive and it did not support their claim.
Re:Illegal??? (Score:5, Insightful)
Parent
Re:Who's slacking? (Score:4, Informative)
Parent
Re: (Score:3, Informative)
One of the admins of a site parallel to my own gripe site (sig) was taken to court by Farmers. The estimates are that they spent north of $700K to litigate the case. His legal fees were in the $200K territory. It was only through heaps of pro-bono time and assistance from his home-owners insurance that he was able to fight the case, and his is one with gobs of precedent (gripe sites/free speech/fair use). In the end the case was settled out of court and part of the settlement was a co
Re:Who's slacking? (Score:5, Informative)
2. The same RIAA lawyer is supervising, and aware of everything going on in, all 3 cases.
Parent
Re:Disbarrment? (Score:5, Informative)
Parent
Re: (Score:3, Informative)
I don't know much about the tax protes
Re:This reminds me of tax protesters (Score:5, Informative)
-copyright infringement is NOT a crime
-the RIAA, thankfully, doesn't have the power to "prosecute" anyone, and
-if the RIAA had the ability to get the prosecutors interested in prosecuting these ridiculous cases, they would have done so already.
The Department of Justice stated in its brief in Elektra v. Barker [blogspot.com] that it DOES NOT PROSECUTE PEOPLE FOR "MAKING AVAILABLE" and that the only internet copyright prosecutions it has prosecuted were piracy cases.
Parent
Re: (Score:3, Informative)
Sorry, this is wrong. As officers of the court, lawyers have obligations to the court that override their obligations to their clients. For example, a lawyer may not suborn perjury by his or her client and may not intentionally misrepresent the facts of the case. When a lawyer submits case citations, they must, as far as he knows, be valid. If a decision is overturned while the motion is still before the court, the attorney is obligated immediately to notify the court. Failure to do so is fraud upon the co