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Magistrate Suggests Fining RIAA Lawyers
Posted by
kdawson
on Tue Jan 29, 2008 06:48 PM
from the just-fine dept.
from the just-fine dept.
NewYorkCountryLawyer writes "Angered at the RIAA's 'gamesmanship' in joining multiple 'John Does' in a single case without any basis for doing so, a Magistrate Judge in Maine has suggested to the presiding District Judge in Arista v. Does 1-27 that the record companies and/or their lawyers should be fined under Rule 11 of the Federal Rules, for misrepresenting the facts. In a lengthy footnote to her opinion recommending denial of a motion to dismiss the complaint (PDF, see footnote 5), Judge Kruvchak concluded that 'These plaintiffs have devised a clever scheme to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined.' She noted that once the RIAA dismisses its 'John Doe' case it does not thereafter join the defendants when it sues them in their real names. Arista v. Does 1-27 is the same case in which student attorneys at the University of Maine Law School, "enthusiastic about being directly connected to a case with a national scope and significance", are representing undergrads targeted by the RIAA."
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U.Maine Law Clinic Is First To Fight RIAA 129 comments
NewYorkCountryLawyer writes "'A student law clinic is about to cause a revolution' says p2pnet. For the first time in the history of the RIAA's ex parte litigation campaign against college students, a university law school's legal aid clinic has taken up the fight against the RIAA in defense of the university's students. Student attorneys at the University of Maine School of Law's Cumberland Legal Aid Clinic, under the supervision of law school prof Deirdre M. Smith, have moved to dismiss the RIAA's complaint in a Portland, Maine, case, Arista v. Does 1-27, on behalf of two University of Maine undergrads. Their recently filed reply brief (PDF) points to the US Supreme Court decision in Bell Atlantic v. Twombly, and the subsequent California decision following Twombly, Interscope v. Rodriguez, which dismissed the RIAA's 'making available' complaint as mere 'conclusory,' 'boilerplate' 'speculation.'"
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RIAA-fighting Maine Law Professor Speaks Out 129 comments
NewYorkCountryLawyer writes "In an interview with Jon Newton of p2pnet, Prof. Deirdre Smith of the University of Maine says that 'our students are enthusiastic about being directly connected to a case with a national scope and significance'. The UM Cumberland Legal Aid Clinic is the first law school legal clinic in the U.S. to have taken on the RIAA, to have the opportunity for hands-on experience fighting the RIAA's effort to rewrite copyright law. Smith went on to say that the case is probably one of the first intellectual property cases the clinic has ever taken on, and that if it proceeds further, she expects to also 'draw on the considerable expertise in IP among members of our faculty and the Maine Center for Law and Innovation, another program of the Law School'. "
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U. Maine Law Students Trying To Shut RIAA Down 229 comments
NewYorkCountryLawyer writes "Remember those pesky student attorneys from the University of Maine School of Law's Cumberland Legal Aid Clinic, who inspired the Magistrate Judge to suggest monetary fines against the RIAA lawyers? Well they're in the RIAA's face once again, and this time they're trying to shut down the RIAA's whole 'discovery' machine: the lawsuits it files against 'John Does' in order to find out their names and addresses. They've gone and filed a Rule 11 motion for sanctions (PDF), seeking — among other things — an injunction against all such 'John Doe' cases, arguing that the cases seek to circumvent the Family Educational Rights and Privacy Act which protects student privacy rights, are brought for improper purposes of obtaining discovery, getting publicity, and intimidation, and are in flagrant violation of the joinder rules and numerous court orders. If the injunction is granted, the RIAA will have to go back to the drawing board to find another way of finding out the identities of college students, and the ruling — depending on its reasoning — might even be applicable to the non-college cases involving commercial ISPs."
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Judge Refuses To Sign RIAA 'Ex Parte' Order 239 comments
NewYorkCountryLawyer writes "The RIAA just can't get enough of going after University of Maine students, but it appears that the judges in Portland, Maine, may be getting wise to the industry's lawyers' antics. RIAA counsel submitted yet another ex parte discovery order to the Court ('ex parte' meaning 'without notice'), in BMG v. Does 1-11, but this time the judge refused to sign, pointing out that there is no emergency since there is no evidence that records are about to be destroyed [PDF]. This is the same judge who has previously suggested the imposition of Rule 11 sanctions against the RIAA lawyers, accusing them of gamesmanship."
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What if my name REALLY is "John Doe" (Score:5, Funny)
Re:What if my name REALLY is "John Doe" (Score:5, Funny)
Or if your license plate was NO PLATE [snopes.com]? It would be hell dealing with all the John Doe warrants that will pop up in automated systems whenever you try to do anything.
Sorry to those of you who follow the above link and get Zango adware [slashdot.org].
Parent
Re: (Score:3, Interesting)
Re: (Score:2, Funny)
Re: (Score:2)
Especially if you were the groom and the bride was called Jane.
Re: (Score:3, Funny)
when bad things happen to bad people (Score:2)
I misread the headline (Score:3, Funny)
Re: (Score:2, Funny)
Re:I misread the headline (Score:5, Funny)
I'd rather not fire them into the Sun right now; it's busy doing the payroll. Would it be OK if I fired them into one of the Dells? None of them are doing anything mission critical.
Parent
Re:I misread the headline (Score:4, Informative)
Parent
Re: (Score:3, Funny)
A more effective solution might be filing the RIAA's attorneys (under "W" for Weasels, say) and then locking the cabinet. Just make sure it's a particularly sturdy model, and if it so happens that your filing cabinets are inside a bank vault so much the better.
Do you get the feeling? (Score:5, Interesting)
Unfortunately, I assume not even a fine like this will slow down the RIAA. They will probably just move on to their next questionable tactic and keep going.
Not really (Score:5, Informative)
RIAA lawyers were bending the law to get names--this was seen as being done in bad faith. Hence the footnote and the news article.
You may now resume your activity of reading further into the judge's remarks.
Cheers.
Parent
Re:Not really (Score:5, Insightful)
1 - Sue the batches of people as a group. This wouldn't stand long as it would be easy to prove that their alleged wrongdoings weren't connected in nature.
2 - Submit the John Doe suits separately. This would backfire as judges wouldn't be too happy to see a giant stack of individual lawsuits being added to their docket. The RIAA would quickly see their lawsuits getting tossed out by judges and perhaps even fines issued for wasting the court's time.
NewYorkCountryLawyer, if you're reading this, can you verify whether I'm reading this right?
Parent
Re:Not really (Score:5, Informative)
Parent
Re: (Score:3, Interesting)
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Re:Not really (Score:4, Insightful)
Parent
Re:Not really (Score:4, Informative)
Parent
Hold a lit candle under their scrotum instead. (Score:5, Funny)
Re: (Score:2)
I recommend they be sentenced to Max-Security Prison for 48 hours; and that their cell partner be 'Bubba': a 200 lbs neanderthal who has never and will never see sunlight.
Typical (Score:4, Interesting)
Until we're willing to elect leaders to make a change, until we are willing to demand that the education system educate, until we vote with our pocketbooks and with our protest signs, this will continue. How long are we going to let the law abuse us? How long will our children be tossed in jail among adults to be murdered and sexually abused?
Re: (Score:3, Insightful)
Re:Please cite link for Paul Morrison and 16 yr. o (Score:4, Informative)
So what does Paul Morrison do? He throws the book at an abused 15 year old girl. At 16, she is placed in an adult prison. The 16 year old girl is forced to strip on a weekly basis in front of male guards. She's surrounded by women and transgender men who are in jail for trafficking drugs, violent crimes, prostitution, and other violent crimes. She is not allowed to take college courses. At 15, her life was over, all because she did not want to be abused any longer.
As you know, Paul Morrison is now AG. He used the misery of a little girl to catapult himself to statewide office.
Parent
Rule 11 (Score:5, Informative)
The judge specifically wants to fine them under Rule 11(b)(3), which states:
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery
Re:Rule 11 (Score:5, Informative)
Federal Rules of Civil Procedure - Rule 11 [cornell.edu]
Parent
Re: (Score:3, Interesting)
That's not the first time I've heard a claim like that, and -- from the perspective of somebody who doesn't know anything about hands-on practice of law -- it doesn't seem credible. Can you go into more detail?
Is there a blacklist somewhere? How will it interfere with their ability to attract clients? Will people drop them as attorneys? Exactly how will it affect how they're perceived by a judge? By opposing counsel?
Re:Rule 11 (Score:5, Informative)
Parent
Re:Rule 11 (Score:4, Informative)
Parent
Re: (Score:2)
Wowie, indeed.
Good luck (Score:2, Insightful)
Re: (Score:2)
I happen to believe the best justice that money can buy if FAR lower than the best justice. Maybe I have too much hope in the judicial system, maybe I am a privileged white male in a racist and misogynist world, but regardless I still believe there are plenty of good judges out there, and their justice is much better than they justice money can buy.
So what? (Score:3, Interesting)
The lengthy footnote 5 (Score:5, Informative)
I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants' names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder. Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accura
RICO (Score:2)
Re:The fat lady (Score:4, Interesting)
Parent
Re:The fat lady (Score:5, Insightful)
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Re: (Score:2)
Re:The fat lady (Score:4, Informative)
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Outrage! RIAA blames economic downturn on piracy (Score:3, Funny)
Re:Outrage! RIAA blames economic downturn on pirac (Score:4, Informative)
If the trolls were all like you, the internet would be a more fun place
Parent
Re:Outrage! RIAA blames economic downturn on pirac (Score:2)
usually trolls piss me off, but you win.
Re:The judge (Score:4, Interesting)
More important is the fact someone didn't do their homework. The PDF is dated this year! It admits using Media Sentry. Isn't the legal status of using an unlicensed investigator already in question? This case could have been thrown back with so much holes exposed it could get laughed out of court. They even seem to get away with calling the infringement copyright piracy. Wow. At least they have toned it down and didn't call it outright theft. Dudes.. It's copyright infringement.
Parent
Re: (Score:3, Informative)
Only in states where it's illegal to be an unlicensed "investigator".
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Re:This Would End Immediately If... (Score:4, Informative)
-evidence
-in a form that would be admissible at trial
-sufficient to establish each and every element of
-a legally sufficient claim for copyright infringement.
The RIAA has none of the above.
Parent
Re: (Score:3, Informative)
2. This judge [blogspot.com] did.