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U. Maine Law Students Trying To Shut RIAA Down
Posted by
kdawson
on Wed Apr 02, 2008 07:14 AM
from the corrupt-enterprise dept.
from the corrupt-enterprise dept.
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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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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Magistrate Suggests Fining RIAA Lawyers 133 comments
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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No evidence (Score:5, Insightful)
Re:No evidence (Score:5, Insightful)
Parent
Re:No evidence (Score:5, Informative)
This is about the RIAA's abuse of the discovery process and, in particular, its filing lawsuits for the sole purpose of collecting evidence through discovery. You personally can't just send me interrogatories [wikipedia.org] without having a pending lawsuit against me, and you also can't file a lawsuit whose only purpose is to allow you to send me interrogatories. And that's what the RIAA is apparently doing, rampantly.
Parent
Re:No evidence (Score:4, Insightful)
Intent is irrelevant. Copyright infringement is a strict liability offense; mens rea is not a factor at all.
How do you suggest they protect their intellectual property rights
Oh, I'm not very interested in that side of things. I think that the better answer is to create an exception to copyright so that natural persons acting noncommercially can do anything, and it isn't infringing. The copyright holders still have copyrights, it's just that fewer things are copyright infringements.
Que the people suggesting that they should just give up all legal protections for their property, and thus there's no crime... just like there'd be no theft if we all owned everything equally.::
It's 'cue,' not 'que.' And the thing is, I recall Prohibition, where people suggested that a good way to get rid of the crimes of making, distributing, possessing, and consuming alcohol, as well as much of the criminal activity that was supported by people who violated the Prohibition laws, was to make alcohol legal once again. As it happens, it worked pretty well. Sometimes, when social norms and the law are in disagreement, the norms need to change, as happened in the civil rights movement; but usually, it's the law that has to change, since the law should serve the people, including their norms of behavior. Most people do not find noncommercial infringements by natural persons to be unacceptable. Lacking any very good reason to act contrary to that, the law should comply with those norms. OTOH, most people do somehow manage to distinguish copyright from the unrelated fields of real and personal property, and can support reform in the former and nevertheless be content with the latter. Go figure!
Parent
Interesting problems for students (Score:5, Interesting)
When I was studying Engineering, the most interesting case studies were the real life cases - actual original research and current theories.
Similarly here, these students seem to have a deparment which values them enough to give them something interesting AND useful to work on.
Good on them all.
Re:Interesting problems for students (Score:5, Interesting)
I wonder if many of the engineering students have figured out that an Ubuntu Live CD and a USB hard drive leave no fingerprints on a computer. There are no deleted files. They never existed. DHCP with temporary leases and an editable MAC addresses finish out the playing card. Some networks will allow www through their proxy but not the campus network without a login.
Not logged in, a new MAC address and DHCP lease, + no HD writes = no cache, history, or deletions evidence. Find a good place to stash that USB drive. That's the online privacy game at it's finest.
Parent
Those pesky students... (Score:5, Funny)
New Library Wing..... (Score:5, Insightful)
That should get the faculty to shut up those pesky law students
Re:New Library Wing..... (Score:5, Insightful)
Parent
Re:New Library Wing..... (Score:5, Interesting)
Parent
Re: (Score:3, Informative)
Rule 11 (Score:5, Informative)
Re: (Score:3, Funny)
Re:Rule 11 (Score:5, Funny)
Geez, and here I was thinking it was 10 with just a little bit extra.
These go to eleven.
Parent
Talk about a quality law school (Score:5, Insightful)
you dont need to have a big name to be a good law school. you just need quality students, and encouraging teachers.
If RIAA wins all these cases (Score:4, Insightful)
A Generation Against Them (Score:5, Interesting)
Re:A Generation Against Them (Score:4, Insightful)
That's what the hippy's thought in the 1960s with free love, drug law reform, and peace. Look at that generation now...
Parent
Re:A Generation Against Them (Score:4, Interesting)
Parent
Cantenna and a wireless router in the library! (Score:3, Interesting)
Ruling judge's sanctions (Score:3, Informative)
Re:Hidden subject (Score:5, Funny)
And note,Last time I checked, porn stars aren't paid for producing gibberish.
Parent
Re:Hidden subject (Score:4, Funny)
Have you ever been subjected to porn which attempts to actually have a dialog and maybe a plot? Believe me, these people aren't really capable of delivering lines. It's purely gibberish, and jarringly annoying.
Er, at least, that's what I've been told. Yeah, that's it. I, uh, read it on line some place.
Cheers
Parent
Re:Hidden subject (Score:5, Funny)
Parent
Re:Hidden subject (Score:5, Informative)
FERPA is a law that products student records. FERPA
Joinder rules are what let a party join, whether the plaintiff or defendant, be named together in a single lawsuit. What these law students are doing is accussing the RIAA of misjoinder: The 3rd one is pretty obvious and means what it says.
Rule 11 [cornell.edu] is just the part of the Federal Rules for Civil Procedure that lets parties seek sanctions against a party in a lawsuit, usually for some type of misconduct.
Parent
Re:Hidden subject (Score:5, Informative)
In the exchange you proferred, the school broke the law. They should have, to cover their legal arses, requested the cops come back with a subpoena. THat would be completely within the law.
Parent
Re: (Score:3, Insightful)
Re:Hidden subject (Score:5, Informative)
The FERPA argument is: "The records are not discoverable under FERPA; the issuance of the subpoena was contrary to law. Period." The same point is made by the Oregon Attorney General in Arista v. Does 1-17 [blogspot.com].
The additional arguments for sanctions, which are separate and distinct from the FERPA argument, are that (a) the case is brought for improper purposes (publicity, intimidation, and discovery) and (b) the deliberate misjoinder flaunts the court rules and numerous court orders.
The discovery issue under (a) is that it's never proper to bring a lawsuit in federal court for the purpose of obtaining discovery. The "John Doe" cases are definitely brought for that purpose, because they are immediately dropped after the RIAA gets the information it was looking for. I.e., it is a pre-action discovery proceeding [which is not authorized under the Federal Rules] masquerading as a copyright infringement proceeding. It is immaterial to the latter argument whether the discovery is or is not barred by FERPA.
Parent
Re:Hidden subject-You'd Think (Score:5, Interesting)
You'd think the judge could put a stop to that -- or better yet a new Federal Rule -- mandating that any identities discovered could only be utilized in the current case. That way, if the plaintiffs lost, or never went to trial in the first place, that information couldn't be misused otherwise.
There was a non-RIAA non-Copyright case a couple years ago where a company sued to obtain the identity of a blogger, critical to that company, and believed to be an employee. While that company had no possibility of winning their case under the First Amendment, once they forced the internet site to cough up sufficient identifying information, they dropped their case and simply fired the employee. That should have never been allowed, and side-steps the whole intent that anonymous persons can be forced to be identified by the courts in virtually any case, no matter how lame, because it's necessary for the administration of justice to identify these defendants.
The whole idea that this will all come out in the wash so to speak, meaning at the actual trial exonerating innocent defendants and punishing overreaching plaintiffs totally misses the point of the damage already being done by the time identities have been revealed under the most flimsy of pretenses.
There should be an argument made that because the RIAA cannot win at trial with the illegally gathered evidence they already have, then identities shouldn't be revealed in the first place. Of course the RIAA will throw back the Jamie Thomas case were stupid juries, a less than bright defendant, and outright wrong jury instructions show that anything is possible if you throw enough b.s. at it.
Of course, my idea will only work if the penalties for actually misusing identity information outside of the trial itself are very VERY severe!
Parent
Re:Hidden subject (Score:5, Informative)
Actually, they do. My wife is a doctor and she always asks her patients if they're doing crystal meth (we're in the midwest; apparently the question gets changed to coke/crack in the east and pot/shrooms in the west) to make sure the meds don't have adverse reactions. Under HIPAA, she cannot provide that information to the authorities. A recent case in Kansas supported this where the attorney general (AG) tried to get Planned Parenthood (PP) to turn over medical records because he thought they were performing illegal late-term abortions. The Kansas Department of Health and PP fought the order and after 4 years have succeeded multiple times in preventing the AG from looking at patients medical records because he thought they _might_ have done something illegal (he was on a fishing expedition).
Lawyer records are similarly protected, except that a lawyer has an ethical obligation to report an ongoing crime (eg if his client tells him he plans to kill the informant).
Parent
Re:Hidden subject (Score:5, Insightful)
Aren't you both right? There are some illegal things that have privacy protection in some circumstances and some that don't.
In the case of your wife who's a doctor, she may be obligated under HIPAA to keep drug use private. But if some 8-year-old comes in with a condition clearly caused by repeated sexual activity, I'll bet she has a higher priority legal obligation to notify the authorities. You can get no-questions-asked treatment for drug addiction but if you go to a therapist and ask for help overcoming your addiction to child porn, you're likely to find the cops banging on your door.
Likewise, confessional privilege varies. It doesn't exist in the U.K. In the U.S., it's modified depending on the state you're in, whether your priest is a licensed counselor of some sort (and thus subject to the laws applying to that profession) and the context under which your confession is made.
In the instant case, we're dealing with things at a lower level. This isn't a planned murder or ongoing child molestation. This is a civil claim, represented as being *really* big and important by the people who are bringing it, versus a set of legal protections for student records, something generally acknowledged to be a good thing. But neither concern is so clearly inferior to the other that a judgement is easy. It sounds to me like a real crap shoot whether a judge would come down on one side or the other.
Of course, I could render a more insightful opinion if I actually read the article. But then I wouldn't be a true slashdotter, would I?
Parent
Re:Hidden subject (Score:4, Informative)
And I always preface it with: "I'm not the cops, and I don't really care, but I have to know."
Parent
Re:Hidden subject (Score:5, Insightful)
I don't question the money my doctor will make when he sticks needles in my eye tomorrow. He has the training and experience to do the job. I also didn't question the money I paid my divorce attorney when I was divorced; she, also, had the training and experience. I don't pay my lawyer to produce gibberish, I pay him to translate it to me, and speak Martian with his fellow Martians. Most normal people (i.e., those not on slashdot) whouldn't have a clue what two slashdotters were talking about when we're discussing, say, computers. "Sorry, Mr. Geek, I don't speak nerdish".
I don't see where a porn star has to have a lot of education. Like an MD, you pay your lawyer more for what he knows than for what he does.
Parent
Re: (Score:3, Insightful)
Not quite. A good lawyer, or team of lawyers, should be able to put their knowledge to good use. Just knowing how to defeat someone doesn't mean you actually can.
So you're paying for both, the strategist who comes up with the game plan and the warrior who executes it.
It's the same with surgeons, and even sometimes with general physicians. You wouldn't want to have a needle meant to draw blood going into a nerve, would you?
I kind of
Re:Hidden subject (Score:5, Funny)
Aren't you taking the whole "cross my heart, hope to die" thing a little too far?
Parent
Re:Hidden subject (Score:4, Insightful)
Parent
Re:Hidden subject (Score:4, Insightful)
Parent
Re: (Score:3, Interesting)
Answer #1: Why not?
Answer #2: Since it's now free, everyone can afford it.
Answer #3: These days, you can have the music even if you can't afford it. Since they're at college to learn, they'd better spend their money on books.
Re:What a bucnh of idiots (Score:5, Informative)
Look: I take your car. Now I have a car, and you don't. I have clearly caused you harm: I have made it more difficult for you to go to work, spend time with your family, pick up groceries, and pay for a new car.
Now look again: You're sharing some music files. I download them from you. Now we both have a car... I mean, music files. I have not caused you harm- you still have your music that you (presumably) paid for. The only argument you can make is that I have caused harm to the RIAA (and those who work for it) and the artist. This may be the case, but it's not a given. If I was never going to buy that music to begin with, I haven't deprived anyone of anything. In fact, if I decide I like the music I would never have heard otherwise, I may decide to buy it somewhere down the road. I have caused no harm; I have simply gained a benefit, but not at anyone else's expense.
On the other hand, if I were planning to pay for the music, but downloaded it instead, I have denied income to the RIAA and the artist. That's pretty lousy, although a lot of people understandably have a lack of sympathy for uber-billionaire multinational corporations and their multi-billionaire hack artists. This lack of sympathy doesn't make the denial of income any less wrong; just more understandable.
You paint this out to be black and white, but in truth, this situation is extremely nuanced, and the heart of the problem is that our current laws (and the RIAA's current business model) are in no way sufficient or even relevant for it.
Parent
Re:What a bunch of idiots (Score:5, Insightful)
That said, the RIAA should NOT be allowed to use questionable tactics to enforce their copyrights. They really do bully people. It's unfortunate that well connected and very wealthy organizations can do things that the average guy couldn't. The law should be enforced with a modicum of parity. If the law really falls short in addressing what downloading music illegally is defined as, at least it can be consistent in how far a corporation can go in defending its IP, as well as how much in damages it can seek in a civil trial. The story of the woman from Michigan who was successfully sued for >200K should have never happened. What sane court could grant such a sum for such a small crime? That should be as illegal as copyright infringement, I know the constitutional prohibition of cruel and unusual punishment doesn't pertain to civil trials but in this case that's what it was.
Parent
Re: (Score:3, Informative)
And because it is written in the holy book it is true and shall always be.
A copyright violation is not stealing.
That's ridiculous (Score:5, Interesting)
The problem businessmen have is that they can't figure out the solution to this problem. Perhaps by exposing a band to a wide market, they could collect x amount of dollars from the concerts they performed, as they're supposedly responsible for popularzing the band to begin with. So the contract would spell that out for as long as the band is signed up with a particular record label. Recording music would simply be to advertise for the band rather than a major means of profit. You simply can't reproduce live performances--it's a different experience. Start making shit that can't be downloaded! Add extra shit to those hard copy of albums to make them worthwhile to buy: extra art, neat case, raffle tickets to win apparel, dogtags with band member names on it, et cetera. It's time to be creative. The artist at this point seems to be supported, so now I want my art for free and I'll worry about the artist when necessary. After all, isn't art's main purpose to be enjoyed by both the creator and his of her fans? As long as the artist isn't broke, I'm not going to feel guilty for not supporting the business of uncreative suits.
Parent
Re: (Score:3, Funny)
There was no need for that. Apologise.
Re: (Score:3, Insightful)
Besides, RIAA gives us plenty of reason to bitch about them, as long as they do, I actually want to stay informed. I'd be glad to see a rapid decline in bitch-against-RIAA-stories on
Re:FERPA (Score:5, Informative)
So the real culprit is the judge who signs an ex parte order instead of requiring proper notice of motions, as the law requires.
Parent
Re: (Score:3, Interesting)
You can blame the judge, but I usually like to presume ignorance until I know otherwise. Rather, I'd blame the lawyers of the RIAA, for not informing the judge of this particular law (which they're not obligated to do, but is a matter of ethics), and for the schools for not appealing based upon this.
IANAL (which makes me either really foolish or really bold to argue with you
Re:FERPA (Score:4, Informative)
Parent
Re: (Score:3, Informative)
Re: (Score:3, Insightful)
Unfortunate that we can't hold these judges responsible somehow. Sovereign immunity should be abolished.
Re: (Score:3, Insightful)
I think the reason it's happened is because the proceedings are ex parte: i.e., they're behind closed doors, without prior notice to the students or to the college. Had the discovery motion been made on notice, the university and students would have had a chance to educate the judge about FERPA and other privacy statutes. Certainly the RIAA isn't doing that.
The fact that judges are issuing ruling without being knowledgeable of the pertinent laws kind of terrifies me. It also kind of gives lie to the whole "ignorance of the law is no excuse" line; if the judges don't know the law, how on earth are the rest of us supposed to?