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Judge Refuses To Sign RIAA 'Ex Parte' Order

Posted by Soulskill on Thu May 29, 2008 09:59 PM
from the wearing-out-their-legal-welcome dept.
Government The Courts News
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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[+] 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."
Firehose:Judge refuses to sign RIAA 'ex parte' order by NewYorkCountryLawyer (912032)
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  • These guys... (Score:5, Interesting)

    by that_itch_kid (1155313) on Thursday May 29 2008, @10:10PM (#23595255)
    The RIAA are getting stupider by the minute. It's high time they learned that people aren't going to take this shit sitting down for much longer.

    The more the courts resist their moves, the more people will stand up for their rights.

    • Re:These guys... (Score:5, Insightful)

      by Anarke_Incarnate (733529) on Thursday May 29 2008, @10:16PM (#23595285)
      Sadly, their tactics have been working.

      Even if you are innocent or think you have a good chance of being found not guilty, the time it will take out of your life, possibly having your good name tarnished and hurting your job or chances of income, the negativity on your credit to have a judgment against you, etc is enough to have people settle for a few thousand dollars they should not have had to pay.

        • Re:These guys... (Score:5, Insightful)

          by Darkness404 (1287218) on Thursday May 29 2008, @10:58PM (#23595579)

          And how many people are actually innocent?


          But our justice system was founded on the principles of you are innocent until proven guilty, with a RIAA case, it is the exact opposite, you need to prove beyond a reasonable doubt that you are innocent, rather then the RIAA prove you are guilty. And some of the people have gotten fines put on them for very little solid evidence and all the evidence wasn't even enough to convict them (so someone had a few songs in their shared folders, but they can't even prove they are or were being shared!).

          • Re:These guys... (Score:5, Informative)

            by Anonymous Coward on Friday May 30 2008, @12:57AM (#23596281)
            My guess is you're not an American. These are civil cases, not criminal. In that case, you aren't innocent until proven guilty, and there is no concept of "reasonable doubt". They just have to prove that its more likely that you did it than that you didn't. No one has been fined. A settlement is not a fine. Fines go to the government, settlements to the other party. You aren't convicted in civil court either. Either stop pretending to be an American, or take a civics class.

            • Re:These guys... (Score:5, Insightful)

              by gnick (1211984) on Thursday May 29 2008, @11:38PM (#23595875) Homepage

              But unlimited songs would probably cost quite much in the industries view, say 50 dollar / month or so
              Actually, it's about $12.99/month [rhapsody.com]... Some people just like to whine without exploring their legal options first because the criminal options are marginally cheaper and they like to play the part of a martyr whose piracy rights are being violated. If you want copywritten material, buy a copy. Otherwise, live without it (or boycott it if you feel the need to protest.)

              Here come the (-1 Troll) mods... Sig embarrassingly related.

              • Re:These guys... (Score:5, Interesting)

                by RzUpAnmsCwrds (262647) on Friday May 30 2008, @12:07AM (#23596069)
                Well, it's "copyrighted", not "copywritten", which isn't even a word.

                And, no, some of us don't like to pay these bastards anything at all. I don't download illegally. I don't download legally. I don't buy CDs.

                Instead I gave $100 to the EFF. I'll probably give them more.

        • Re:These guys... (Score:5, Insightful)

          by fishbowl (7759) <nethack.cox@net> on Thursday May 29 2008, @11:23PM (#23595759)
          I'm waiting for the RIAA to claim infringement against something they don't actually represent the copyright (or mechanical license) to. One thing Copyright Law does a pretty good job of, is protecting you (the copyright holder) from other parties claiming your work as your own (and using that claim as a basis for litigation).
          I keep hoping they screw this up, and claim to represent some independent songwriter who will then press criminal charges.

    • Re:These guys... (Score:5, Insightful)

      by masdog (794316) <masdogNO@SPAMgmail.com> on Thursday May 29 2008, @10:20PM (#23595311)

      The RIAA are getting stupider by the minute. It's high time they learned that people aren't going to take this shit sitting down for much longer. The more the courts resist their moves, the more people will stand up for their rights.

      The RIAA and their lawyers have one thing that most defendants don't have - bags of money to fund these suits. The goal isn't to win - those who fight the charges have shown that the RIAA doesn't have much of a leg to stand on - but to drag the cases to a settlement where they get some money.

      I don't think they would give this up - even with a string of defeats, they will eventually find a friendly judge or get enough laws passed in their favor to protect their antiquated business model.

      • Losers should pay (Score:5, Interesting)

        by hedwards (940851) on Thursday May 29 2008, @11:35PM (#23595855)
        This is really why there needs to be some sort of change to the way that trials are conducted. It's really an embarrassment that one side so often outspends the other by such a huge amount. And it's considered to still be a fair trial.

        Seems to me moving loser pays system would make it a lot more difficult to abuse the system. Or potentially require the loser to pay the winner the cost of the winner's counsel plus the cost of the losers council as well. In cases where the loser had insufficient counsel it wouldn't add a whole lot but in cases where the loser brought in a lot of high priced attorneys to try and pull a fast one, they'd get a much large penalty. Of course require the winner to demonstrate that the size of the bill is reasonable for a case of that type.

        I think that the Judge refusing to sign the order was perfectly reasonable considering both the spurious nature of the suits as well as the other nefarious dealings of their unlicensed "investigator" mediasentry. http://yro.slashdot.org/article.pl?sid=08/05/29/2026213 [slashdot.org]

        What I do wonder is if this goes where it looks like it's going to something resembling an organized crime prosecution, would any or all of the settlements still be valid? Or would a conviction for extortion and misrepresenting the facts be grounds for declaring the settlements invalid?

    • Re:These guys... (Score:5, Interesting)

      by Ethidium (105493) <chia_tek AT yahoo DOT com> on Thursday May 29 2008, @11:38PM (#23595869) Homepage Journal

      The more the courts resist their moves, the more people will stand up for their rights.
      Don't pull out your revolutionary songbook quite yet. Keep in mind that it wouldn't be news if judges were resisting this shit left and right. It's news because this judge did something uncommon.

      • Re:These guys... (Score:5, Interesting)

        by halcyon1234 (834388) on Thursday May 29 2008, @10:55PM (#23595563) Journal
        Ultimately, that is what will get them in the end: the judges. Changes to the law are slow, but the unspoken consensus of the judges isn't. They're supposed to be unbiased arbitrators, which means they everyone gets a fair shake to prove themselves. However, it works when you prove yourself to be a scummy, annoying, lying, untrustworthy entity-- well-- you can't be biased against the truth. ;)

  • Hey CmdrTaco (Score:5, Interesting)

    by Chabil Ha' (875116) on Thursday May 29 2008, @10:24PM (#23595343)
    How 'bout getting an interview with these guys? I think it would be the perfect opportunity for the **AA to put up or shut up with the community on their long term goals.

    No need for ad hominem attacks, et all, but an opportunity to speak on an issue that is mostly one sided here on /.

  • Good news but still... (Score:5, Insightful)

    by pravuil (975319) on Thursday May 29 2008, @10:53PM (#23595549) Homepage Journal
    With all that has been going on with these cases, there has been tons of money thrown down the drain through court costs and layers fees. Most of it on the side of the recording industry. They haven't made any dent in which accounts for anything. I understand going after legitimate pirates who attempt to profit from shared distribution. People like that need to be jailed. With the industries failure to create a viable model of distribution within the digital age, I start to ask are they spending all their time on lawsuits while hoping the internet is a passing fad? I think it's time they wake up to reality and take a good look at what is already available and accept it. Acceptance can be a bitch sometimes but what else can you do sometimes, right? RIAA, please just move on. This is getting embarrassing.

  • Internet in Maine? (Score:5, Funny)

    by russlar (1122455) on Thursday May 29 2008, @11:16PM (#23595705)
    I didn't know TCP-over-moose technology had matured!

    • NYCL is a lawyer who handles RIAA cases! (Score:5, Informative)

      by Anonymous Coward on Thursday May 29 2008, @10:29PM (#23595375)
      > 'Ex parte' does not really mean without notice.

      Normally, no. In RIAA 'expedited discovery' cases, however, it _does_! They grab the discovery against twenty or so people and withdraw from the case immediately afterwards.

      If you knew anything about our submitter, you'd know that he's a lawyer and that when the RIAA runs things, they go for "expedited" motions so that things really do happen without reasonable notice for the parties in question.

      While you're correct about what ex parte (usually) means, in RIAA cases, I will defer to NYCL. He is, after all, an attorney who has been directly involved in cases opposing them and who has a nice FAQ on his website. It tells you exactly how they run these cases and why they habitually withdraw from the case once they get discovery in the ex parte suit and send people to their "settlement center" after that, making the entire process something most parties only find out about after the fact.

      So no, he didn't include the words "ex parte" just because he thought they sounded cool.

      - I Don't Believe in Imaginary Property [eff.org]

      • > 'Ex parte' does not really mean without notice.
        Normally, no. In RIAA 'expedited discovery' cases, however, it _does_! They grab the discovery against twenty or so people and withdraw from the case immediately afterwards. If you knew anything about our submitter, you'd know that he's a lawyer and that when the RIAA runs things, they go for "expedited" motions so that things really do happen without reasonable notice for the parties in question. While you're correct about what ex parte (usually) means, in RIAA cases, I will defer to NYCL. He is, after all, an attorney who has been directly involved in cases opposing them and who has a nice FAQ on his website. It tells you exactly how they run these cases and why they habitually withdraw from the case once they get discovery in the ex parte suit and send people to their "settlement center" after that, making the entire process something most parties only find out about after the fact. So no, he didn't include the words "ex parte" just because he thought they sounded cool.
        Thank you. No I don't do anything to sound cool. I don't have it in me to sound cool.

        In American litigation (which I've been working in since 1974), the term "ex parte" means "without notice".

    • Re:Ex parte (Score:5, Informative)

      by Ungrounded Lightning (62228) on Thursday May 29 2008, @10:39PM (#23595469) Journal
      I suspect NewYorkCountryLawyer has some clue about what he's talking about.

      Also: According to the (current) page on it in wikipedia:

      In Australian, Canadian, U.K., and U.S. legal doctrines, ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. It is also used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.

      So it's "ex parte", not because the Does aren't present, but because the RIAA is asking the judge to rule without consulting the Does and giving them a chance to file a counterargument. If they are given a chance to file a response (even if they're not physically present - especially at the same time as the RIAA representatives which could lead to them being identified even if they should not be) then it's no longer "ex parte" according to the US usage.

          • Re:Ex parte (Score:5, Informative)

            by NewYorkCountryLawyer (912032) * on Friday May 30 2008, @12:11AM (#23596087) Homepage Journal

            What are the rules about when ex parte orders can be issued?
            The rule is, 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.

            In the University of Oregon, the RIAA conveniently "forgot" to tell the judge [blogspot.com] that the University had told the RIAA that it had gathered and was preserving the records.

            In the University of New Mexico case [blogspot.com], the judge had this to say about the RIAA's "ex parte" request:

            Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule.


            In the College of William & Mary case [blogspot.com] the judge just rejected the application outright.

    • Re:Ex parte (Score:5, Informative)

      by nickrout (686054) on Thursday May 29 2008, @11:58PM (#23596003)

      'Ex parte' does not really mean without notice.
      Yes it does. It means without notice to the other part[y|ies]. If someone is about to do me a legal wrong (e.g. undermine my house by excavating under my land) and the situation is urgent I may be able to obtain ex parte an injunction to stop them. Becasue the bulldozer is humming outside my house I can get the order urgently. The quid pro quo for getting it without the bulldozer man getting an opportunity to show his side of the case is that I must be scrupulously honest and up front to the judge and provide all relevant evidence, whether it helps me or the other side, and my lawyer must refer the court to any cases or laws which may be against me as well as those that may be for me. ex parte orders are reserved for urgent situations, which is why the judge here said there was no need for an ex parte discovery order as there was no evidence that records were about to be destroyed. Oh and IAAL.

    • Re:BUZZWORD alert: SYnergy: (Score:5, Insightful)

      by NewYorkCountryLawyer (912032) * on Thursday May 29 2008, @11:42PM (#23595895) Homepage Journal

      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.

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