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RIAA's Request For Appeal Denied In Thomas Case
Posted by
timothy
on Sat Dec 27, 2008 09:40 PM
from the seeking-one-mulligan-too-many dept.
from the seeking-one-mulligan-too-many dept.
NewYorkCountryLawyer writes "The RIAA's request for permission to appeal from the decision setting aside its $222,000 jury verdict has been denied by District Court Judge Michael J. Davis. In a brief, 6-page decision (PDF) the Judge dismissed the RIAA's arguments that there is a 'substantial ground for a difference of opinion' on the question of law presented, whether the Judge had erred in accepting the RIAA's proposed jury instruction that merely 'making files available' could constitute an infringement of the plaintiffs' distribution rights. He likewise dismissed their argument that granting permission for the appeal would 'materially advance the ultimate termination of the litigation,' since (a) depending on the outcome of the trial, plaintiffs might not wish to appeal from the judgment, and (b) no matter how the appeals court rules on the 'making available' issue, the case will still have to continue in the lower court, since even if the RIAA wins on the 'making available' issue, the Court will still have to address the constitutionality of the large jury verdict, which may result in a new trial."
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RIAA Wants Its $222,000 Verdict Back 203 comments
NewYorkCountryLawyer writes "The RIAA, unhappy with the Court's decision setting aside its $222,000 jury verdict over $23.76 worth of song files, and throwing out the legal theory on which it was based, has made a motion for permission to file an appeal from the Judge's order, in Capitol v. Thomas. Normally, only final judgments are appealable, and appeals are not permissible in federal court from 'interlocutory' orders of that nature."
[+]
Has RIAA Fired MediaSentry? 76 comments
NewYorkCountryLawyer writes "According to a tantalizing 'unconfirmed' report, it appears that the RIAA has jettisoned MediaSentry (now known as SafeNet) as its 'investigator.' MediaSentry has come under heat in a number of different states for the fact that it was 'investigating' without an investigator's license and invading people's privacy. Earlier this year it was found to have made diametrically conflicting written statements to two different tribunals within 30 days of each other, in one denying that it was an 'expert witness,' in another claiming that it was an 'expert witness.' If the report is accurate, the termination comes at an interesting time, since MediaSentry's investigator is the plaintiffs' only fact witness to prove copyright infringement in Capitol Records v. Thomas, which is now headed for a retrial on March 9th. If he does take the stand, the reasons for his company's termination will be fair game for cross examination. One also has to wonder if it's in any way connected to the puzzling enigma of the New York Attorney General's alleged involvement in the RIAA's recent Wall Street Journal announcement that it would be reducing its p2p file sharing cases to a trickle."
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I've heard enough about the RIAA (Score:5, Insightful)
Re:I've heard enough about the RIAA (Score:5, Funny)
Parroting your industry standard reply I see.
Parent
Re:I've heard enough about the RIAA (Score:5, Insightful)
So? If you have a problem with him, then don't hire him to represent you.
Parent
Re:I've heard enough about the RIAA (Score:5, Insightful)
I smell an ethical conflict of interest.
So do I. Your employers may dislike Mr. Beckerman for displaying them as the soulless vampires I believe them to be, but the rest of us think he's doing a good thing.
Parent
Re: (Score:3, Funny)
So do I. Your employers may dislike Mr. Beckerman for displaying them as the soulless vampires I believe them to be, but the rest of us think he's doing a good thing.
Sir, I am a soulless vampire, and I find your comparison to be highly offensive.
Re:I've heard enough about the RIAA (Score:5, Insightful)
That's a truly odd accusation to make; my employer(s) had no influence nor relevance to my comment.
Well, you clearly missed the GP's point (or perhaps are deliberately misconstruing it.) Generally, those who express opinions similar to yours on Slashdot are considered to be RIAA shills. Frankly, the fact that the media people have taken such an obvious dislike to Mr. Beckerman in particular indicates that he's doing something right. If he's enriching himself over this he's no different than the majority of attorneys in this country. He's on the right side, and that's sufficient for most of us. I do suspect you're right in one sense: he's probably not driving a used Chevrolet, and isn't giving his services away for free. What, exactly, was your point again?
... well. Given that his blog refers to original legal documents whenever they're available makes it hard to claim any degree of journalistic bias or manipulation of facts (other than the fact he makes no bones about his opinion of the way RIAA attorneys practices law.) There aren't too many other sources of reliable information on this subject, anyway, and honestly some of us appreciate his efforts.
So far as impartiality goes
You're free to disagree, and you're opinion is certainly welcome so far as it goes. Just don't expect a lot of support for them in this particular venue.
Parent
Re:I've heard enough about the RIAA (Score:5, Insightful)
Ironically Machiavelli never had a Machiavellian bone in his body. The guy was being honest about how he saw countries being run in The Prince; it wasn't really how he thought they should be run.
This is brought to you by the people to give the old Italian politico farmer a proper memory in the public consciousness committee or PTGTOIPFAPMITPCC
Parent
Re: (Score:3, Informative)
why do you do it?
I do it because it is one of the rare opportunities I have had to really do what I went to law school to do, which is to fight for what is right.
The way it came about was that in late 2004 or early 2005 I learned of these cases from the Electronic Frontier Foundation, which is an organization for which I have the utmost respect.
I thought to myself : "I'm a copyright lawyer, I'm a litigator, and I hate bullies. Maybe I can help some of these people."
And so I jumped into the fight with no plan other than t
Re:I've heard enough about the RIAA (Score:5, Informative)
I'm personally rather sad we have had the first "too much of NYCL on /. posting" but I suppose fame and popularity always result a few detractors.
It's people like him that have help restore a little of my faith in the (US) justice system. When I see large rich corporations throwing cash at cases just to make it harder for their much poorer opponents to defend themselves it's good to know there are people out there who will help the underdog. These cases are particularly redolent for myself and many slashdoters as they invoke a certain "there but for the grace of God go I" feeling.
I would sincerely doubt Ray is becoming a rich (or much richer) man because of them. I would expect that most of his potential clients with any amount of money would rather pay the RIAA's pound of flesh and settle without going to court than risk several years disruption to their lives.
Most of people he will be defending will be those who cannot afford to pay and so his only hope of ever getting adequate recompense will be if courts award fees in his favor, which I believe is a bit of a lottery at the best of times - at least he believes enough in his own skills and his take on the law to take that risk.
1. Represent poor and middle class people defending cases that could be settled for $4000 or $5000, in lengthy complex cases against defendants whose primary goal is to make the cases as complex and as expensive as possible...for which you receive little compensation.
2. Oppose giant multinational corporations, joined in a cartel, who have an army of lawyers and are willing to spend tens of million dollars per year pursuing the poor and middle class people.... for which you receive little compensation.
3. Spend hours each day doing research, obtaining and reading legal documents, and writing a blog for which you receive no compensation.
4. Communicate each day with lawyers and RIAA lawsuit victims from all over the world, for which you receive no compensation.
5. Communicate each day with media from all over the world, for which you receive no compensation.
6.???
Profit!
Parent
Re: (Score:3, Informative)
FWIW, I think you're doing a fine job Mr. Beckerman, and thanks for all your hard work on this subject. And there really are a number of peeps here on /. who really need to appreciate you more and take the time to thank you. Without you being involved, I'm sure things would have been much, much worse for our fellow netizens, and the RIAA would be out of control at this point.
Thanks, perigee369. Actually I get a lot of support from the folks at Slashdot. In the non-cyber world I've never met anyone -- other than lawyers for the big content corporations -- who is not on my side. Which makes me a little suspicious of my few cyber-detractors. In any event, since the trolling this time around centers on my supposed profiteering, although I do not think it is actually sincere, let me just note that anyone who honestly thinks that representing the RIAA's victims is a way to make money
Re: (Score:3, Insightful)
Let me just note that anyone who honestly thinks that representing the RIAA's victims is a way to make money either (a) can't add, or (b) doesn't know how to use a calculator.
...or, most likely, both.
You made me smile, because I actually had that thought immediately after I'd clicked "submit". As you have correctly pointed out, the 2 concepts are not mutually exclusive.
Beware (Score:5, Insightful)
Re: (Score:2, Funny)
...a cornered wounded beast has nothing to lose and can therefore be very dangerous. ...
As my ex-spouse discovered to her dismay a few years back.
Re:Beware (Score:4, Funny)
Hans? They let you have Internet access for Christmas...?
Parent
Re:Beware (Score:4, Funny)
Parent
Re:Beware (Score:4, Funny)
And *that* has to be the most clueless comment I have ever heard about a comment about the RIAA.
Parent
Re: (Score:3, Funny)
mod parent redundant. It is slashdot.
InnerWeb
Judge's kids (Score:5, Insightful)
Re: (Score:3, Insightful)
Re:Judge's kids (Score:5, Interesting)
Parent
Re:Judge's kids (Score:5, Informative)
Drunken karma whoring! [slashdot.org]
Parent
Re: (Score:3, Insightful)
Re-read it a few times (Score:4, Interesting)
And it seems to be better news than simply the RIAA getting smacked on their request to appeal.
The RIAA claimed this: "there is a substantial ground for a difference of opinion on the question of law presented"
Concerning: "whether the Judge had erred in accepting the RIAA's proposed jury instruction that merely 'making files available' could constitute an infringement of the plaintiffs' distribution rights"
Now, I occasionally have a difficult time translating from Lawyer to English, but it sounds to me like the judge is not only saying "no you can't appeal" but "making available isn't copyright infringement, and there is no wiggle room to discuss the matter further because it's obvious that it's not."
Do I have that right, NYCL? Because if I do it really sounds like bigger news than a trivial appeal request getting smacked down. Sounds like the Judge just dropped The Big One.
Re: (Score:3, Informative)
As the Court fully explained in its September 24 Order, in National Car
Rental System, Inc. v. Computer Associates International, Inc., the Eighth Circuit
held that "[i]nfringement of [the distribution right] requires an actual
dissemination of either copies or phonorecords."
Basically they said that even though their earlier decision was appealed by another court that appeal is not binding so they'll stand by their earlier decision which I quoted above.
IANAL but I think this just matters for this particular co
Re:Re-read it a few times (Score:5, Informative)
Disclaimer: IANYetAL, but I'm a law student.
Usually you're right, the Eighth Circuit doesn't have to follow the Ninth Circuit's decisions (for example) and vice versa, but in this case, The Honorable Judge Davis does have to abide by that decision, since Minnesota's in the Eighth Circuit.
What "actual dissemination" actually is, though... that's an open question, and I think that's what they're trying to figure out.
I have no idea if I got that right, it's late and I'm on break. (And hence trying not to think about all things legal :-D )
Parent
Re:Re-read it a few times (Score:4, Funny)
When I see that written in a context like this it always seems that it's in order to distinguish this Judge Davis from some other less honorable Judge Davis. As in "No, this one was by the honorable Judge Davis."
Parent
Re: (Score:3, Funny)
Re: (Score:2)
Ya got a subpoena?
No? Then buzz off.
Re:Re-read it a few times (Score:4, Informative)
Now, I occasionally have a difficult time translating from Lawyer to English, but it sounds to me like the judge is not only saying "no you can't appeal" but "making available isn't copyright infringement, and there is no wiggle room to discuss the matter further because it's obvious that it's not." Do I have that right, NYCL?
Yes you have that right. But there's another biggy in the decision which is a little more subtly presented. The judge is also implying that even if the 'making available' issue were not on the table, he would probably be ordering a new trial because of the excessiveness of the size of the verdict.
Parent
There is a simple fool proof solution to all this. (Score:5, Funny)
The RIAA shoudl just stop making the music available.
Too many ads (Score:5, Informative)
The "Recording Industry vs. the People" site has become incredibly ad-heavy. It now has layer ads that won't dismiss, a link farm, and regular Google ads. This thing has advertising from services I've never even heard of, like "shareasale.com". Amusingly, it has ads for RIAA-controlled music, and even for the iTunes store.
Block "st.blogads.com" to make it at least tolerable.
Re:Too many ads (Score:5, Informative)
The "Recording Industry vs. the People" site has become incredibly ad-heavy. It now has layer ads that won't dismiss, a link farm, and regular Google ads. This thing has advertising from services I've never even heard of, like "shareasale.com". Amusingly, it has ads for RIAA-controlled music, and even for the iTunes store.
Block "st.blogads.com" to make it at least tolerable.
Before you get modded OT and NYCL will miss your post, I suggest that you politely email him.
I enjoy his many submissions to Slashdot, so perhaps people should consider donating to his website, instead of criticizing his advertising.
Parent
Re: (Score:2)
I couldn't agree more.
I, for one, love his advertising and hope people stop donating to his site.
That way he'll add more glorius advertising for people, such as myself, to enjoy.
Re: (Score:3, Insightful)
This is Slashdot. We dislike anything that isn't free as in beer. We don't pay for music, videos or software; we're not going to pay for a blog.
Penny-wise, pound-foolish. If you truly want to see the RIAA stopped cold, and see rational reform in copyright law, it's people like Ray Beckerman and groups like the EFF that will probably bring that about. Helping them out now is a wise investment. I happen to find Ray's blog far more worthwhile than 99.99% of the blogs out there (99% of everything is crud, after all) and where else will you find such a substantial collection of relevant court documents? Heck, where else can the people involved in these cases, from judges on down, educate themselves as to what's really going on, with all the proper documentation? Nowhere that I've been able to find. Would you rather a judge presiding over an RIAA case receive his information from their attorneys ... or from Ray's blog? Having all that data collected in one place is valuable in itself.
So yeah, I hit the Paypal button. You should too.
I just want to say that the reason I have the affiliate ads on my blog is that it seemed to me like an easy way for someone who appreciates my blog to help financially without it costing anything. I.e. you're going to buy stuff anyway, so why not buy it through one of my links and help me make a few bucks? So for those of you who are my friends, if you think there's too much advertising, tell me what you'd buy so I could target the ads better and run fewer of them.
The judge said it best (Score:5, Insightful)
The term "piracy" has been misused on individuals. An individual may be guilty of theft, like a shoplifter, but it's not piracy. Someone that takes an item without paying for it is very different than a rogue company selling unauthorized copies of another company's product. The RIAA treats individuals like profit-seeking organizations, and until now they've been successful. It's refreshing to see a judge recognize the distinction. I believe most critics of the RIAA would be a little more sympathetic to their position if they were pursuing misdemeanor charges for stealing $0.99 songs.
Re:The judge said it best (Score:5, Interesting)
As it's been said in the courts,
they're treating it like criminal matter but it's civil.
The reason is that you can't subpoena people's addresses and stuff like that if it's civil. Also, unlike criminal court, you absolutely have to pay the fines if you lose. Since there is no proof of distribution, they'd have to pay for every single case.
Parent
Re: (Score:3, Insightful)
I believe most critics of the RIAA would be a little more sympathetic to their position if they were pursuing misdemeanor charges for stealing $0.99 songs.
I wouldn't be, for reasons I'll explain below.
You seem to have fallen for the RIAA line that "ZOMG PIRACY IS THEFT". It isn't. In order for something to constitute theft, somebody has to be permanently deprived of property. Not profits, not the possibility of profits. When somebody's deprived of profits, that's not theft, that's copyright infringement.
Theft is a criminal matter, punishable by possible jail time. Copyright infringement is a civil matter, punishable only by monetary damages. If you stea
Re:The judge said it best (Score:4, Insightful)
"ZOMG PIRACY IS THEFT". It isn't.
Of course it is. It's also frequently murder. But it only really counts if you use a cutlass and wear an eye patch.
In order for something to constitute theft, somebody has to be permanently deprived of property. Not profits, not the possibility of profits. When somebody's deprived of profits, that's not theft, that's copyright infringement.
That's not necessarily true. Many, if not all, states have laws concerning theft of services. I'm not saying that copyright infringement is or is not theft, but I get really annoyed when people keep repeating the incorrect statement that theft must involve loss of physical property.
Parent
Re: (Score:3, Insightful)
Theft of services generally refers to failing to pay for a previously agreed upon service.
If I hire someone to write a song for me and then fail to pay them, that is theft of services.
If someone writes a song and I "steal" it, that is not theft of services. That is copyright infringement.
The theft of services usually has to prevent the victim from providing the same service to someone who would pay for it (because it was provided to you instead) in much the same way that property theft prevents the victim
Re: (Score:3, Informative)
I am not trying to be a smartass here but what does theft of service actually mean? Is it signing a contract for work done and then not paying?
More or less, but it doesn't necessarily have to involve actually signing a contract. In general, it means gaining some benefit that you normally have to pay for without paying. Sneaking onto a bus or not paying a taxi fare would probably be considered theft of services. Wikipedia [wikipedia.org] has a pretty good summary:
This category encompasses a wide variety of criminal activity including, but not limited to, tampering with (or bypassing) a utility meter so that the true level of consumption is understated; leaving a hotel or restaurant or similar establishment without paying for the service; and "turnstile jumping" or other methods of evading the payment of a fare or fee when using a public transit vehicle or entering a private facility normally requiring payment (e.g., amusements).
Re: (Score:2)
Re:Then what do you call... (Score:2)
...theft of service? It's quite real, yet quite intangible.
Just an interlocutory appeal routinely denied. (Score:5, Interesting)
This isn't a big deal either way. The judge denied an "interlocutory appeal", one made regarding some legal point before the decision in the case was final. Such appeals are rarely tried and even more rarely successful. The issue can still be appealed, just not until the current case is finished.
I can't read Legalese (Score:2)
Re: (Score:2)
Congratulations (Score:5, Interesting)
If you can read this, you're now a criminal.
Yes, the author's life plus 70 years has passed. Unfortunately I took this work from a compendium that owns the rights of reproduction that will persist well into the next century. This bit our our culture has been stolen from us by lawyers and sold legislators. Under current law there is no legal difference between you downloading Britney Spear's latest attempt at vocal rehab and your browser loading this poem written nearly a century ago on this page. That's wrong. That's very wrong.
And now you're a dirty information property stealing criminal. You should be ashamed of yourself.
Re: (Score:3, Insightful)
If you can read this, you're now a criminal.
Naa, you are a criminal (supposedly criminal) for posting it on a public website. If what you say were true, all the RIAA has to do is, get some loud speakers, play a copyrighted song, and sue everybody within the hearing radius (except the deaf of course).
On the contrary (Score:4, Interesting)
Copyright does not protect portions of derived works that lack originality. That principle is the basis of the recent court decision Bridgeman Art Library vs. Corel Corp. [wikipedia.org]. Unless the publisher has made substantial changes to Kipling's work, I dare say we are not dirty rotten intellectual property stealing criminals after all.
Parent
Re:What does it mean? (Score:4, Informative)
Sorry to ask such an obvious question, but what does "making files available" mean? Say I lose my laptop or mp3 player and it is used by even a single user, or say they dump in on Limewire.... What then? What would happen if I lost in the US? (Canuck here)
Beats me.
There's nothing about it in the US Copyright Act.
It's just something the RIAA made up.
Parent
Re:Please translate OP into English (Score:4, Funny)
I used to really enjoy reading Ray's posts because he had a knack for translating legalese into something a bit more human-readable.
I never had the knack for that; I speak Legalese. You're just being nostalgic.
The last few articles just read like someone's copied and pasted from court filings though.
I don't really have time for witty or insightful commentary. I'm so overburdened timewise I have to prioritize, and I came to a realization in 2005 that my priority should be the one thing that I'm doing that no one else is really doing, which is getting the litigation documents online so that the rest of the world will have access to them and can provide the witty and/or insightful commentary.
Has Ray's account been hijacked,
Yes
or has he just forgotten how humans think?
Correction. I have never understood how humans think.
Parent