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RIAA's Throwing In the Towel Covered a Sucker Punch

Posted by kdawson on Fri Jun 13, 2008 09:16 AM
from the many-eyes dept.
Government The Courts News
NewYorkCountryLawyer writes "The RIAA threw in the towel, all right, but was only doing it in preparation for throwing a sucker punch. After dropping its 'making available' case, Warner v. Cassin, before Judge Robinson could decide whether to dismiss or not, it was only trying to do an 'end run' (if I may mix my sports metaphors) around the judge's deciding the motion and freezing discovery. The RIAA immediately, and secretly, filed a new case against the family, calling this one 'Warner v. Does 1-4.' In their papers the lawyers 'forgot' to mention that the new case was related. As a result, Does 1-4 was assigned to another judge, who knew nothing about the old case. The RIAA lawyers also may have forgotten that they couldn't bring any more cases over this same claim, since they'd already dismissed it twice before. Not to worry, NYCL wrote letters to both judges, reminding them of what the RIAA lawyers had forgotten."
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[+] RIAA Throws In Towel On "Making Available" Case 252 comments
NewYorkCountryLawyer writes "The RIAA has thrown in the towel on one of the leading cases challenging its 'making available' theory, Warner v. Cassin, in which the defendant had moved to dismiss the RIAA's complaint. We have just learned that the RIAA submitted a voluntary notice of dismissal before the judge got to decide the defendant's motion to dismiss the complaint. It will be of interest to see if Ms. Cassin pursues a claim for attorneys' fees in view of recent court rulings that successful copyright defendants are presumptively entitled to an attorneys fee award, even if the dismissal came about from the plaintiffs' having 'thrown in the towel.'"
Submission: RIAA 'threw in towel', then threw 'sucker punch' by NewYorkCountryLawyer (912032)
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RIAA's Throwing In the Towel Covered a Sucker Punch 50 Comments More /

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  • NYCL FTW! (Score:5, Funny)

    by Anonymous Coward on Friday June 13 2008, @09:19AM (#23777751)
    That is all.

    • Re:NYCL FTW! (Score:5, Insightful)

      by VeNoM0619 (1058216) on Friday June 13 2008, @10:15AM (#23778763) Journal
      No kidding, I am thankful that we have people like NYCL out there keeping track of these events and posting the news. Being a lawyer who stands up for morals are hard to come by traits found in a single person, and deserves plenty of respect and admiration.

      So for all those who haven't, or forgotten to say it, THANK YOU NYCL.

  • I'm not a lawyer, so someone please explain this (Score:5, Interesting)

    by Anonymous Coward on Friday June 13 2008, @09:20AM (#23777763)
    Wouldn't this be contempt of court or some other punishment? I mean, I'm pretty sure the judges can't be too happy about trying to be tricked like this - can they punish the lawyers in any way?
  • just to make sure he's safe from any shit riaa may try pulling.

    now, which of you geeks want to take on this duty ?

  • How can they get away with this (Score:5, Interesting)

    by guruevi (827432) <evi.smokingcube@be> on Friday June 13 2008, @09:23AM (#23777803) Homepage
    Either their lawyers are incompetent or crooks or both but this is ridiculous. What were they expecting? That nobody was going to find out? Thanks to NYCL we get a little bit of fairness in the crooked justice system. How can you file a 'secret' lawsuit anyway?

  • Not innocent enough! (Score:5, Funny)

    by DarkLegacy (1027316) on Friday June 13 2008, @09:24AM (#23777823) Homepage
    When's the RIAA going to stop suing families and finally go for the homeless people? ;)

  • At this point... (Score:5, Informative)

    by Psmylie (169236) * on Friday June 13 2008, @09:24AM (#23777827) Homepage
    It seems like the RIAA is throwing all the shit they can think of at the wall to see what will stick. Seems a little desperate to me.

  • Dirty Pool (Score:5, Interesting)

    by whisper_jeff (680366) on Friday June 13 2008, @09:25AM (#23777841)
    A question for Ray (and any other lawyers on /.): I know lawyers are required to do what they can to the best of their ability for their clients but, to me, a non-lawyer, it really seems like the RIAA lawyers are playing dirty pool to the Nth degree. They aren't just doing everything they can - they are going beyond the call of duty to succeed even if it is beyond the scope of law and morals. Is this sort of conduct "normal" for lawyers (as in, common enough that this isn't terribly surprising) or are the RIAA lawyers truly standing out from the crowd with their actions?

    • Re:Dirty Pool (Score:5, Interesting)

      by JustinOpinion (1246824) on Friday June 13 2008, @09:45AM (#23778181)
      I should let NYCL answer for himself... but if you look at his comment history [slashdot.org], you'll find that he re-iterates that the RIAA lawyers are indeed using unconventionally dirty tactics. He says they are unethical and/or stupid, and sometimes implies that their actions are outright illegal and they should be disbarred.

      Example: [slashdot.org]

      It's the RIAA's lawyers that are missing something. I'm not sure what they're missing, but I've got it narrowed down to 2 things: (1) brain cells, or (2) integrity. Or possibly some of each.
      Another example: [slashdot.org]

      what they are doing is totally illegal. In federal practice ex parte relief is only granted as a last resort. In these cases the RIAA lies through its teeth to get the order, falsely saying that the ISP or University will destroy the records if they are given notice of the application. It amazes me that there is any judge in the U.S. who would sign such an order. I think you'll be seeing more and more judges refusing, as news of the RIAA's lies spreads.
      Another: [slashdot.org]

      How stupid can these people be?....
      Good question. I don't know the answer to it. Each time I think they've reached the mountain top, they come up with something even better.

      It's as tough as the other question I keep wondering about with these characters:

      "How mean and how heartless can someone who was born of a human mother be?" Each time I think I've seen how low they can sink, they find some way to sink even lower.

      These questions are simply unanswerable.
      I think it's safe to say that NYCL has a low opinion of their tactics both from an ethical standpoint and from a legal practice standpoint.

      • Re:Dirty Pool (Score:5, Informative)

        by ZOMFF (1011277) on Friday June 13 2008, @10:07AM (#23778595) Homepage
        IANAL (but I am dating one) and this is the response I got from her on the matter:

        "Every state has a grievance board that deals with things like unethical conduct. There is one case here involving a grievance against our client (another lawyer) for overly aggressive litigation techniques specifically the service of a subpoena on children, which is not illegal, but their parents felt it was improper and intimidating. Attorneys have to have professional liability insurance as well to protect against claims of malpractice, which could be attributed to "incompetence" or willful misconduct. I know that when I worked in NYC, there was an attorney we knew who was sanctioned (and possibly disbarred) for improperly managing his escrow account. I obviously know no case law on this, but my impression is that once the judge on the new case becomes aware of the Plaintiff's lack of following proper procedure, the case will be thrown out. As far as punishing the attorneys, I am not sure if the court system would take any action other than the dismissal of the case, but certainly if the RIAA feels that its attorneys were behaving incompetently, they could sue for malpractice. My guess is that this was intentional and that the RIAA is on board, though. And a grievance can come from anyone, not just the court or another attorney. And if a grievance was filed the board would have to determine that the RIAA's counsel knowingly ignored procedure."

        • Re:Dirty Pool (Score:5, Funny)

          by Maxo-Texas (864189) on Friday June 13 2008, @10:25AM (#23778949)
          This is off topic, but I'd never date a lawyer unless I was one.

          Closing on the half century, I've just heard too many ugly stories about how bad it can get when the relationship ends. I'd prefer someone safe, like a gang leader's sister.

  • Disbar the RIAA lawyers (Score:5, Interesting)

    by Reality Master 201 (578873) on Friday June 13 2008, @09:25AM (#23777849) Journal
    Seriously, if they're gaming the system this way, they deserve to lose their licenses. This is clearly unethical and deceptive.

    Or, if you chose to think that they just forgot about the second suit, they're clearly so fucking incompetent that they deserve disbarment anyway.

    Jeez, that's some scummy shit.

  • Estoppel (Score:5, Insightful)

    by Raul654 (453029) on Friday June 13 2008, @09:27AM (#23777873) Homepage
    I'm not a lawyer, but isn't there some kind of estoppel that prevents a party from dismissing a suit that isn't going well and then refiling it?

    • Re:Estoppel (Score:5, Interesting)

      by k_187 (61692) on Friday June 13 2008, @09:33AM (#23777991) Homepage Journal
      It depends on jurisdiction. I did pretty bad in Civil Procedure, and don't have my FRCP in front of me, but in Federal Court (which I don't even know if theyre in since I didn't RTFA), you get 2 bites at the apple. You can voluntarily remove yourself once, then refile and I think if there's a procedural problem, you can also remove and refile. Don't quote me on all that though.

      • Re:Estoppel (Score:5, Funny)

        by PolyDwarf (156355) on Friday June 13 2008, @09:39AM (#23778089)

        It depends on jurisdiction. I did pretty bad in Civil Procedure, and don't have my FRCP in front of me, but in Federal Court (which I don't even know if theyre in since I didn't RTFA), you get 2 bites at the apple. You can voluntarily remove yourself once, then refile and I think if there's a procedural problem, you can also remove and refile. Don't quote me on all that though.
        Well, then everything's fine. There was a procedural problem with their second suit; they were going to lose.

  • Not a smart move (Score:5, Interesting)

    by Todd Knarr (15451) on Friday June 13 2008, @09:28AM (#23777885) Homepage

    I don't think this is a smart move. Given that the first case is still active, and that the new case involves the same acts and the same defendants, can't the defense move to have the new case reassigned to the first judge and consolidated with the first case? I'd think that would be a lawyer's worst nightmare, to have tried this kind of end-run and wind up back in front of the judge you tried to evade anyway. He's sure to be none too thrilled about it, and now has a reason to crack down harder.

  • Double jeopardy seems unlikely... (Score:5, Informative)

    by aredubya74 (266988) on Friday June 13 2008, @09:29AM (#23777895)
    ...since there was no actual trial for the defendants in the initial case, but how is this remotely legal? IANAL, but if someone here actually is, how is it legal, procedurally, that a plaintiff is permitted to drop a claim and then immediately file an identical new one? This seems like blatant judge shopping, as it seemed possible that Judge Robinson would dismiss the charges with prejudice (so they could not be refiled), leaving precedent for dismissal of "making available" cases.

  • I don't understand (Score:5, Interesting)

    by Yurka (468420) on Friday June 13 2008, @09:38AM (#23778069) Homepage
    why it is so important to try and nail this particular defendant. It's not like they lack potential victims; drop "making available" (just as they did in refiling this one) and do the next sweep. Is it only because they're pissed this one got away? They can't afford it. Revenge is a dish best prepared from correct ingredients; if all you have is crap, just keep shoveling it in front of the ventilator, and don't attempt precision targeting.

    • Re:I don't understand (Score:5, Insightful)

      by Todd Knarr (15451) on Friday June 13 2008, @10:07AM (#23778585) Homepage

      Because this defendant has fought and won. The RIAA needs to send a clear message to everyone else: even winning against us comes at too high a cost. That's all this is about now, and hopefully the courts will send a message to the RIAA: the legal system isn't here to use as your personal club to beat people you don't like with.

  • Subversion of Justice Workshop. (Score:5, Funny)

    by splutty (43475) on Friday June 13 2008, @09:39AM (#23778085)
    We are very proud to announce our new workshop called Subversion of Justice.

    We think this is the new trend in law at this moment, and have already found 4 speakers that are more than willing to state their case.

    Our thanks go to Mr Bush, Mr Thompson, An anonymous person from the Scientology church who wants to go by the nomicker of 'Tom', and one or more speakers from an organization calling themselves RIAA for being this fast in giving their assent to speak at this great event.

    Please stay tuned for more details.

  • disbarment needed (Score:5, Insightful)

    by RichMan (8097) on Friday June 13 2008, @09:40AM (#23778115)
    This clearly looks like an attempt by the lawyers to game the system. There are clear rules they should know. At some level lawyers for both parties are supposed to be agents of the court.

    Fines to recover the courts cost for all actions are needed on top of disbarment of the RIAA's lawyers. The message "Don't Game the System" needs to be sent.

  • An old legal maxim (Score:5, Funny)

    by Anita Coney (648748) on Friday June 13 2008, @09:46AM (#23778213)
    There's an old legal maxim that say if you can't win under the law, argue the facts. And if you can't win under either, well, there's always lying, cheating, and stealing.

  • These are the people you buy media from... (Score:5, Insightful)

    by BobMcD (601576) on Friday June 13 2008, @09:47AM (#23778223)
    This is the direct result of all those dollars you and I have given the parent companies over the years. Next time a new CD, DVD, etc hits the shelves, consider buying it used first. Wait a month or two, until someone else gets bored of it, and support a local business instead of these vampires.

    • Re:Sure, "Forgotten", right (Score:5, Informative)

      by Chas (5144) on Friday June 13 2008, @09:33AM (#23777975) Homepage Journal
      "How are these underhanded lying scumbag tactics even legal?"

      Because forum shopping isn't illegal.

      And there is no double jeopardy rules in civil cases. They're allowed to bring the case to court as many times as they can find venues.

      HOWEVER, because of the preceeding cases, every venue they pop up in should get their case shot down again, and again, and again.

      Think "whack-a-mole".

      But things like neglecting to attach case history is stuff that can get these fuckers censured and possibly disbarred.

      Here's hoping!

      • Re:Sure, "Forgotten", right (Score:5, Insightful)

        by DustyShadow (691635) on Friday June 13 2008, @09:54AM (#23778347) Homepage

        Because forum shopping isn't illegal. And there is no double jeopardy rules in civil cases. They're allowed to bring the case to court as many times as they can find venues.
        Sure but they are limited to only those courts that have personal jurisdiction over the defendants, which should be only one or two courts.

    • Re:Pathetic (Score:5, Informative)

      by Holi (250190) on Friday June 13 2008, @09:44AM (#23778167)
      You should really look up Amicus curiae.

      An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.

      --Rule 37(1), Rules of the Supreme Court of the U.S.

    • Re:Pathetic (Score:5, Informative)

      by m.ducharme (1082683) <`moc.liamg' `ta' `emrahcud.cram'> on Friday June 13 2008, @09:45AM (#23778201)
      I can't tell for sure, but there is some indication, if you follow the links back, that NYCL, you know, Ray Beckerman, is Counsel for the Defendants, and as such would of course have standing to address both judges. And if I'm wrong, well see my sibling post re: Amicus Curiae briefs.

    • Re:Pathetic (Score:5, Informative)

      by UncleTogie (1004853) * on Friday June 13 2008, @09:55AM (#23778365) Homepage Journal

      Sending a letter to judges to tell them what is going on in their own courtroom? When you are a party to neither case? Clearly because you have a bone to pick with one of the parties?

      So you like your lawyers to do a half-ass job? His interest here is that the parties being sued were his clients, not strangers. He's doing his job. DO read TFA next time...

    • Re:Disbar them (Score:5, Funny)

      by peipas (809350) on Friday June 13 2008, @09:52AM (#23778305)
      I work for a bar association, and we indeed host continuing legal education (CLE) seminars entitled, Avoiding Ethics Mistakes in the Legal Profession, but that title doesn't fit on our room signage so we just go with, Avoiding Ethics.

      • Re:i want to kill myself (Score:5, Interesting)

        by Kierthos (225954) on Friday June 13 2008, @10:05AM (#23778519) Homepage
        So if NYCL is our enemy, as you claim, then what the screaming budgie fuck does that make the RIAA lawyers? Boy scouts, paragons of humanity, and the future leaders of the free world? I think not. The RIAA lawyers, truth be told, are trying to get their clients a victory in civil court. But they are going about it in such a way, that even if NYCL was the stereotypical ambulance chaser kind of lawyer and the kind that carries a spare neck brace for defendants in auto accident cases, he would still look like the good guy in this by comparison.

        Snidely Whiplash, tying Little Nell to the train-tracks, would look like a good guy by comparison.

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