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ABA Judges Get an Earful About RIAA Litigations
Posted by
kdawson
on Tue Jul 29, 2008 07:20 PM
from the preaching-to-someone-other-than-the-choir dept.
from the preaching-to-someone-other-than-the-choir dept.
NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article.
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All that needs to be said (Score:5, Insightful)
You are a hero.
Thank you for your efforts. (Score:5, Insightful)
They are greatly appreciated.
Re:Thank you for your efforts. (Score:5, Interesting)
I'll second that! I'll never need this info personally, but feel this is for a greater good. The voice of NYCL is a breath of fresh air compared to the hostile assholes who are waging a war on potential customers and anyone who gets in their way. To bring some fairness to the people who are getting railroaded by the RIAA and their draconian tactics is a very, very good thing. Doing something helpful for someone you may never meet is commendable.
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Re:Thank you for your efforts. (Score:5, Informative)
I'll second that! I'll never need this info personally, but feel this is for a greater good. The voice of NYCL is a breath of fresh air compared to the hostile assholes who are waging a war on potential customers and anyone who gets in their way. To bring some fairness to the people who are getting railroaded by the RIAA and their draconian tactics is a very, very good thing. Doing something helpful for someone you may never meet is commendable.
Thank you, count.
I'm a Sudoku fan myself.
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Re:Thank you for your efforts. (Score:5, Interesting)
I think we need a -1 asshole option
Honestly, this doesn't make it 'easier' to do, this makes it more just to people. Regardless of your position on downloading music, you can't sanely argue that it's right that someone pays upwards of 2000 times what the damage is; there is no 'deterrence' feature to these rulings, as it is a civil matter. In fact, the only point of such rulings is retribution and punishment; there is no legal basis, as far as I am aware, for allowing civil rulings to include a deterrence factor.
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Re:Thank you for your efforts. (Score:5, Funny)
music thieves and the large Internet criminal element do thank you, NewYorkCountryLawyer
Is that you, MediaSentry? I didn't know the internet criminal element were posting in this thread.
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Damn it! (Score:5, Funny)
That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments. Now my replies need to be thought out!
I mean, you look like one of us(except for the monkey suit).
Re:Damn it! (Score:5, Interesting)
That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments.
No problem. You can keep on making snarky comments.
Now my replies need to be thought out!
Don't start on my account.
I mean, you look like one of us
I am one of you.
(except for the monkey suit).
I only wear the monkey suit for special events such as funerals, bar mitzvahs, and court appearances. I.e., just like you.
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Real question (Score:5, Insightful)
I have read the copyright law, but since I am not a trained lawyer I am confused on one part.
Is downloading infringement? or is it distribution?
Distribution makes sense to me, downloading(receiving) doesn't.
Am I to be liable if it turns out the book I bought from a bookstore is actually a copy of something some else wrote?
Where doesn't it say downloading is infringement?
AFAIK, All the cases had people whose software was downloading also had 'sharing' turned on.
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Re:Damn it! (Score:5, Funny)
"I only wear the monkey suit for special events such as funerals, bar mitzvahs, and court appearances. I.e., just like you."
Eh, I dunno, the last bar mitzvah I went to, I dressed like a renaissance knight.
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Re:Damn it! (Score:5, Insightful)
And a sense of humor, as well?
Ray - Not only do you do great things for "The People", but I believe your work is helping to fix the typical feeling of mistrust that most Americans have for lawyers.
I, for one, feel better knowing that not all lawyers are as portrayed in the movies.
And I am glad you can make jokes about yourself. I have long believed that this ability is one of the more noble qualities that a person can have... and somebody who can pull it off well is worthy of a great deal of respect.
Thank you.
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Wow (Score:5, Insightful)
Awesome read. I wish this was required material for any judge presiding over the cases in question. I also wish for a pony.
Question for NYCL... (Score:5, Interesting)
--Validity of Plaintiffs' Copyright Infringement Claim--
"Without actual distribution copies . . . there is no violation distribution right."
--William F. Patry, Patry Copyright, 2007.25
I assume that MediaSentry has some sort of signed agreement or license that gives the copies that they make in the course of thier "investigations-ha-ha-ha" the status of "authorized duplications". Without such a license or assignment of duplication rights, MediaSentry would be guilty of infringement themselves, would they not?
If said licenses or assignments do in fact exist, why can the "evidence" of the download transaction (a copy being made) be termed an act of "Unauthorized Distribution" if the party actively making the copy is explicitly "authorized" to make said copies?
Admissable (Score:5, Interesting)
This is the problem with the court systems in America. We use things like precident instead of common sense. Judges are too scared to make decisions that aren't supported by the actions of other judges (though someone had the balls to set the precident in the first place). Common lawyers are too inept or lack proper experience to understand the rights that their clients have as defendants in a civil suit (the old movie cliche of a worthless public defender comes to mind here).
I understand common-sense is something most people don't have anymore, but when my life or livelyhood is at stake, I would hope the person defending me has a little.
Ray Beckerman is the man (Score:5, Informative)
Definitely my favourite Slashdot user.
Such dedication to the greater good is like a rare gem. So rare, in fact, you start doubting it even exists anymore. For those of you who don't know, Ray Beckerman has been fighting the RIAA since a long time, and has been great at it!
The suggestions from TFA (Score:5, Informative)
By all means, RTFA, as the following will be put into absolutely needed context, but here are the suggestions themselves:
Suggestion 1. Be alert to misjoinder in "John Doe" cases.
If a court is presented with a "John Doe" case that joins more than one defendant, under well-settled principles the case should be dismissed as to all John Does except John Doe number one. Plaintiffs should be ordered to show cause why they should not be held in contempt of the November 17, 2004, order of the district court in Fonovisa v. Does and subject to Rule 11 sanctions. And because there will likely be no defendant's counsel present, the court should read the plaintiffs' response with a critical eye.
Suggestion 2. Require in personam jurisdiction and venue.
If a court is presented with a John Doe case that fails to set forth detailed factual allegations of the basis for venue and for in personam jurisdiction in that district, the action should be dismissed.
Suggestion 3. No ex parte motion practice.
Nothing should be granted ex parte unless it involves an order providing for meaningful notice of the motion for discovery to be afforded to the John Doe and to the ISP. The order should state that the ISP is to be provided with a full set of papers for transmission to the John Doe, and should provide ample time from the Doe's receipt of such papers, consistent with the court's usual practices for motions on notice, to respond. These should include everything a defendant is normally entitled to receive under the court's usual rules and practices, including the summons and complaint, all of the motion papers, and the court rules, notices, and other materials supplied to defendants.
Suggestion 4. Make explicit the legal authority upon which discovery
applications are permitted or rejected.
Justice will be well served if a court is able to take the time to scrutinize the statutory basis invoked for each discovery application, cite the authority supporting its rulings, and deny discovery applications on their merits if they are not warranted by existing statutes or case law.
Suggestion 5. Scrutinize John Doe pleadings and evidence without being intimidated by technology jargon.
The complaint, of course, affords the opportunity to ensure that plaintiffs have validly pleaded a copyright infringement claim and that the evidence is admissible and covers all elements of the claim. It is easy to be overwhelmed by impressive-sounding technical and pseudo-technical jargon. Allow me to observe that if the court and the court's law clerks and law secretaries (many of whom are "digital natives") do not understand the case, that may be a sign that the plaintiff has none.
Suggestion 6. Carefully evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Careful evaluation of a complaint's sufficiency on a motion to dismiss may ultimately spare defendants significant and unwarranted hardship. A court, therefore, should stay all discovery while the motion is pending, and, if it denies the motion, certify the order denying the dismissal motion for an interlocutory appeal.
Suggestion 7. No routine consolidation or "related case" treatment.
A court need only follow traditional principles for consolidation and "related case" treatment. There is no need to create a special exception for these plaintiffs. Where the defendants are unrelated to each other, their cases are unrelated to each other and should be treated as such.
Suggestion 8. Keep discovery short and sweet.
If, and only if, the plaintiffs can muster an evidentiary showing that their case has merit and that the defendant committed copyright infringement, then the court may allow (1) a deposition of the plaintiffs; (2) a deposition of the defendant; and (3) an examination of the hard drive by a mutually agreeable independent neutral forensics expert whose fees will be advanced by the plaintiffs and will be treated as a taxable disbursement to ab
Well done (Score:5, Insightful)
I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say...
Oh, and well done Ray, I will be saving this article as an example of why we need due process.
Re:Well done (Score:5, Insightful)
I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say... Oh, and well done Ray, I will be saving this article as an example of why we need due process.
Yes it's pretty astonishing the lengths to which they will go to make sure the defendant doesn't have a fair shake in court.
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you're doing it wrong (Score:5, Funny)
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Re:you're doing it wrong (Score:5, Funny)
What's a 12 year old girl doing in center field?
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Re:you're doing it wrong (Score:5, Funny)
Lawyering, NewYorkCountry style.
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Re:Hey NewYorkCountryLawyer (Score:5, Funny)
Saw your pic. I thought you were younger!
I used to be much younger. But that was quite a while ago.
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Re:Of all 3 branches (Score:5, Informative)
FYI, the Justice Department != the judicial branch. In fact, the Justice Department is and has been under a lot of scrutiny because of its political bias.
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Judges, Justices, or Department of Justice? (Score:5, Informative)
The Department of Justice (DOJ) is an executive branch department (Wikipedia Entry [wikipedia.org]). The judicial system is made up of Judges at most levels, and justices are the supreme court level. To laymen, that distinction it one of terminology, not job (though they don't judge cases the same way a trial court does, and the terms have some meaning.
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Re:God Bless Ray Beckerman (Score:5, Informative)
All I want to say is God Bless you, Ray Beckerman.. You are the lone voice crying in the wilderness against the RIAA/MPAA... May you continue fighting the good fight!!
Thank you for your kind words. But I am not alone. I have been joined in this fight by many fine men and women all across the country, lawyers and defendants alike. We learn from each other, and help and support and get strength from each other.
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