ABA Judges Get an Earful About RIAA Litigations 349
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.
Queue RIAA press release... (Score:4, Insightful)
about the unfairness of the article in three, two...
Never mind that AC... (Score:5, Funny)
Ladies and gentlemen, I have uncovered a plot! A fiendish plot that undermines the very foundations of Slashdot itself!
Notice how Ray Beckerman goes out and defends people against the RIAA, to win the hearts and minds of Slashdotters. Then he uses that goodwill to get stories published from the firehose, onto the front page. What happens next is the really fiendish bit: he posts a series of comments on the article, whereupon the moderators invariably mod them up to +5.
Can't you see what he's doing? It all fits: Ray Beckerman is a karma whore! This is a bigger conspiracy than twitter and his sock puppets!
All that needs to be said (Score:5, Insightful)
You are a hero.
Sweet piece of writing, mate (Score:5, Interesting)
I may be a wee bit out of your jurisdiction but I maintain the appeal to fairness and reason presented in your paper holds universal appeal.
(Shakes head, walks away whistling.)
*Yeah, deliberate troll, on the basis that you're allowed to insult your friends. Deal.
Re:All that needs to be said (Score:4, Funny)
Re:All that needs to be said (Score:5, Funny)
He gets paid to submit articles to Slashdot?
Don't I wish.
Re:All that needs to be said (Score:5, Insightful)
Well, everybody has to make money. As a lawyer who has had a couple of RIAA cases referred my way, I can honestly say that there is no upside at all to taking the cases and doing any fighting in court. The costs of doing discovery and filing responses in the court will add up quickly enough that the defendants better option is just to pay the settlement and be done with it.
Even if there was a chance that the defendant would prevail, they'd be in a deeper hole than if they settled. And the RIAA has demonstrated that they'll fight an award of attorney's fees for a defendant, making any eventual payout years down the pike.
If I didn't have student loans that needed regular payments, and the ordinary costs of living, taking on one of these cases and fighting tooth and nail seems like a worthwhile thing to do. But I can't afford to do it.
We should be glad that NYCL is fighting this fight, and God bless whoever is paying him (or if he's been successful enough in his practice up to this point to be bankrolling it himself.)
Re:All that needs to be said (Score:5, Insightful)
Quick? NYCL has been posting on this stuff for years and is by far the most informative voice on slashdot for this type of thing - I can only assume you are a new AC around here.
It appears that he's getting paid for it.
Define "it". Also regardless of wether he is paid for "it", he has done far more than just sit on slashdot and bitch about the MAFIAA like the rest of us do.
Thank you for your efforts. (Score:5, Insightful)
They are greatly appreciated.
Re:Thank you for your efforts. (Score:4, Insightful)
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.
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.
Re: (Score:3, Funny)
Never mind that, did they give you free tickets to Mamma Mia?
Re: (Score:3, Funny)
Never mind that, did they give you free tickets to Mamma Mia?
What does free tickets have to do with anything? He's simply explaining to them: there's another side to the RIAA's arguments, and I'd like to articulate it, if you'll take a chance on me.
Re:Thank you for your efforts. (Score:5, Interesting)
Some courts have made pronouncements to the effect that the court does not "understand the technology" well enough to make the dismissal determination, and that therefore the determination should be made after completion of pretrial discovery. I submit that, if the court does not understand the technology well enough, it means that the plaintiffs have not pled their claim well enough and their complaint should be dismissed.
Thanks, NYCL.
Re:Thank you for your efforts. (Score:5, Interesting)
My favorite passage is related to yours.
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.
Re:Thank you for your efforts. (Score:4, Insightful)
I'll second that! I'll never need this info personally...
Don't be so confident about that, since many of the people being sued are no more guilty than you.
Re:Thank you for your efforts. (Score:5, Insightful)
No more? They're less guilty. He at least has a computer, he could at least somehow do it.
Re:Thank you for your efforts. (Score:5, Interesting)
Ummm...Then how do you explain this:
http://p2pnet.net/story/3773 [p2pnet.net]
A choice line form that same article...
Re:Thank you for your efforts. (Score:4, Interesting)
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.
Re:Thank you for your efforts. (Score:5, Insightful)
I would say the larger the settlement the less deterent it is.
If I were charged $50 per time getting caught I would probably be petrified. If I were charged $10,000,000,000 per time I would just view it like dieing "hopefully it won't happen but if it does it's pretty much over."
The lower the fine the more likely they are to be able to pass sweeping legislation which makes it easier to charge people. If downloading were like parking tickets and as easily enforceable then I think you see a much larger drop in piracy than threatening to sue millions of dollars.
It's like "disaster syndrome" your brain can't quantify the damages so it just gives up and ignores it all together. My brain can perfectly understand $50 and its effect on my wallet.
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.
Re:Thank you for your efforts. (Score:5, Insightful)
Never want to see RIAA again? Then don't steal the dream - don't steal the music. Buy your "tunes" at a reputable record store instead of just stealing them off the Internet.
The RIAA and other entertainment lobbyists have been stealing from the public on a massive scale for decades. Beyond the repeated price-fixing convictions (which they never seem to get punished for), they've been taking works that should have become public domain and extending the duration of their monopoly rights over them, even retroactively so that the public never gets any return on the copyright bargain in their lifetime. You could wrap all those industry execs in bacon and drag them through an alligator moat and nobody would shed a tear.
Re:Thank you for your efforts. (Score:4, Funny)
Shed a tear? I'd pay for the bacon!
Re:Thank you for your efforts. (Score:5, Insightful)
And unlike the folks that claim that copyright infringment = theft, this *really is* theft (i.e., something taken from people that they are unable to use as a result) on a massive scale.
Did we hold a shotgun to EMI? (Score:4, Insightful)
Did we hold a shotgun to EMI/Sony/... and steal their works?
Did we hold a shotgun to the artists and steal their efforts?
No. The artists and labels have decided of their own free will to work in a sphere that is overtaken by technology. Just like the flint-knappers and buggy whip manufacturers.
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.
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.
Re:Real question (Score:5, Insightful)
Is downloading infringement? or is it distribution?
OK, I am not Ray, and I am not a lawyer. Make of this what you will. All of the following applies to US law.
Distributing other people's copyrighted files may violate 17 USC 106(3). Downloading other people's copyrighted files may be considered "reproducing" said file, which may violate 17 USC 106(1).
The big problem is these laws were written before p2p sharing existed, so we don't really know for certain how the law applies to these issues. The RIAA (and other groups such as the MPAA) is arguing that 17 USC 106 be applied very broadly, so as to definitely condemn downloading and uploading files. Ray, the EFF, and other organizations are arguing (among other things) that 17 USC 106 does not apply as RIAA thinks it should.
Re:Real question (Score:4, Insightful)
Re:Real question (Score:4, Insightful)
1. Some 'copying', i.e. from from drive to RAM, has already been held to be legally exempt from the very definition you are trying to give it, in reference to various EULA's and such. While some courts are still wrangling over just what does and doesn't count, such actions as sending data to a printer buffer and then printing it definitely don't count as multiple violations of copyright.
Your claim that 'every time you open the file after that, another set of copies gets made" is absurd, and has gotten inexperienced lawyers censured for invoking it in actual courts. It would make every person reading an electronic book they had legitimately paid for a criminal, as they have purchased only one copy and no rights to reproduce it.
2. By your definition, you have made a copy of a written document by looking at it (a copy then exists as an inverted image on your retina.) You have then made another copy by retaining that image in your brain, and by your brain's having converted the data to an interpreted set of ideas and not just an image in the visual cortex, you have made a third copy. If you even consider speaking the words you have seen, a fourth copy has just been made, in your brain's speech processing regions. So, your argument apparently makes all reading illegal.
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.
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.
Well I'm not a trend-setter like you.
Re:Damn it! (Score:4, Funny)
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.
Re:Damn it! (Score:4, Funny)
I'll have you know I don't even own a monkey suit. :-)
The dearly departed don't care what you wear, they're dead.
I've never been to a bar mitzvah.
For my only court appearance so far, I wore shorts and a T-shirt.
OK OK.
I take back the part about "just like you".
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.
Re:Wow (Score:4, Funny)
I also wish for a pony.
And blackjack!
Re:Wow (Score:4, Funny)
If you have hookers, why screw the pony?
Unless...
Great paper, still reading... (Score:4, Informative)
Re: (Score:3, Insightful)
I started reading and then a question occurred to me. In the Napster days you found someone with a song and downloaded it. With a torrent, you are getting a chunk. I don't see the chunk as having any copyright since you need to assemble the file with the header to listen / view it. IANAL, To prosecute someone, wouldn't you have to prove that you got each chunk from the same computer / person? Just because someone is seeding a file doesn't mean that he is supplying all of the pieces to you to recreate / dupl
Re: (Score:3, Interesting)
OK. Your immediate question would seem to have a parallel in books and similar things. There are any number of books, bibles, collections and whatnot that include some sort of language up front that says something to the effect that you may copy and use up to so many words.
Lemme look... Yup. NIV states the following:
The NIV text may be quoted in any form (written, visual, electronic or audio), up to and inclusive of five hundred (500) verses without express written permission of the publisher, providing the verses quoted do not amount to a complete book of the Bible nor do the verses quoted account for 25 percent or more of the total text of the work in which they are quoted.
Notice of copyright must appear...
So... If what you're suggesting has any validity, it would seem to undercut the ability to provide this provision. That is, why would anyone need to care? It would seem the distributi
Re: (Score:3, Interesting)
Even better yet, I can say for certain that for each video, there is an exact number assigned to it. A hundred byte file has a number not exceeding 2^800.
This number grows rather large when we talk about 600MB files. However, these numbers are either prime, or composed of multiples of prime. Aside the difficulty of factoring out primes in big numbers, would trading the primes and frequency violate copyright?
Or worse yet, we can describe film data as a 3d graph. If we approximate the set of equations, we ca
judges (Score:3, Insightful)
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?
Re: (Score:3, Interesting)
It doesn't matter if MediaSentry is allowed to make copies, the person uploading the file still does not have permission to distribute the file. It doesn't matter who they are distributing to, it matters that they can't legally distribute the file. Unless the copyright holder explicitly gives me permission to distribute the file, I can't legally make a copy for anyone, even if they can legally have or make a copy.
Re:Question for NYCL... (Score:4, Informative)
--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?
1. It's not a "distribution".
2. It's not "unauthorized".
Re:Question for NYCL... (Score:5, Insightful)
My understanding is that the RIAA downloads from their victims, then sues them for making those files available.
That's exactly right. Pretty pathetic, isn't it?
Re:Question for NYCL... (Score:4, Insightful)
Re:NYCL's silence means...(A POLL) (Score:4, Funny)
Obligatory.... (Score:4, Informative)
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.
Re:Admissable (Score:4, Informative)
We use things like precident instead of common sense
For better or worse that is our legal system. The roots go back almost 1000 years.
http://en.wikipedia.org/wiki/Common_law [wikipedia.org]
Re: (Score:3, Informative)
Re:Admissable (Score:4, Interesting)
God Bless Ray Beckerman (Score:3)
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!!
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.
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.
Re:Well done (Score:5, Insightful)
No, it's really fucking not! Attorneys are also "officers of the court," and have the responsibility and obligation to uphold proper court procedure. The RIAA's lawyers are absolutely failing in their duty to the court, and should be sanctioned for it!
Re:Well done (Score:4, Insightful)
Yeah, it's called "being a good attorney". Being one yourself, you can certainly identify. The attorney's job is to present the client's arguments in the best possible light, and if he has to bend the law or ethics to do it, then that's his job. Breaking the law is OK too, as long as you don't get caught...
Maybe that's your definition of a good attorney. But it isn't mine.
+5 Insightful? +3 Informative? (Score:3, Interesting)
Re:+5 Insightful? +3 Informative? (Score:5, Funny)
Funny, I didn't realize the ABA utilized slashcode.
I guess you didn't read my Slashdot interview [slashdot.org] and the comments which followed it, where I said quite clearly [slashdot.org]:
Thank you all for the interview, and for the rough and tumble comment period which followed it. I really enjoyed it. It was incredible fun. I've even learned an important new legal research method in the process. A lawyer can't just read a bunch of cases and statutes to know what the law is. He also needs to come to Slashdot, because if somebody here says something's the law, and it gets moderated to +5, then it's the law. Maybe lawyers don't know it, and Congress doesn't know it, and the judges don't know it, but sooner or later, I'm sure they'll come around.
The legal profession is just starting to catch up to Slashdot, but we'll come around.
Re:+5 Insightful? +3 Informative? (Score:4, Funny)
It has become a geek meme. Can also be used as a pickup line, as in "Hey, babe, anyone ever tell you you're +5 beautiful?" Followed shortly by, "Hey, sweet stuff, I see you've barfed in your drink. Can I buy you another?"
I'll probably get modded down as "redundant" (Score:5, Insightful)
But I'll post this anyway. Your efforts are sincerely appreciated by many of us. I've read the article, and I hope that judges who read it will take a serious look.
I am currently actively involved in supporting a blogger in the UK whose right to free speech was recently threatened. I would not have had the interest or courage to become involved in this effort if I had not been exposed to the RIAA issue on Slashdot. Though the two types of cases differ greatly, the underlying message is the same: Individual freedoms must not be tampered with or trampled. You have expressed that basic truth very eloquently, and I hope you will continue to do so for a very long time.
Interesting... (Score:5, Interesting)
FTA: Only a single case in four years, Capitol v. Thomas,11 has ever gone to trial, and that one only because the judge denied the defendant's attorney's motion for leave to withdraw.
The possible reasons behind this interest me:
It seems that only the most unconscionable, reckless, and irresponsible corporate officers would authorize settling a debt for pennies on the dollar, yet this is exactly what the likes of Vivendi, Sony, etc... propose with their settlement offers. For this to be a legitimate debt, the CEOs of said corporations are breaching their fiduciary responsibility to their shareholders.
I'm wondering if I could buy stock in Sony and sue the CEO for devaluing the company's assets. After all, if downloading really does cost several hundred thousand dollars per infringer, why are they settling for a few thousand?
I'm waiting for them to get sued under RICO.
Re:Interesting... (Score:4, Insightful)
Hmm... let's see the possible outcome...
1. Defendent knows he's guilty and settles -> RIAA wins
2. Defendent knows he can't afford to fight, no matter if he's guilty -> RIAA wins
3. Defendent knows he's innocent and decides to fight, RIAA drops case -> Defendent wins
In total, I think it's quite a good chance for the RIAA to win their case without ever going to court. I wonder why they don't just randomly pick people and sue ... nevermind.
Re:Interesting... (Score:4, Insightful)
I'm wondering if I could buy stock in Sony and sue the CEO for devaluing the company's assets. After all, if downloading really does cost several hundred thousand dollars per infringer, why are they settling for a few thousand?
IANAL, and nor am I a music executive, but I can think of an answer to that one easily enough.
Because otherwise they'll have to spend just as much on lawyers which they're unlikely to get back; even if awarded costs you can't get a man whose total assets amount to $100,000 to give you $200,000.
fishing with a net... (Score:4, Insightful)
Seems to me that the RIAA's quote in the appendix is quite interesitng:
when you fish with a net, you're gonna catch a few dolphins
Especially since you can see from the list of people they sued, that they have only sued dolphins(casual defenseless infringers), and not a single barracuda(large scale industrial pirates)...
What options do WE have? (Score:3, Interesting)
The article does raise a question for me, however, as a standard person that could get caught up in something like this. If I were to get a judge who turns a blind eye to these seemingly common sense parts of a due process, would there be anything I could do to demand that I be given the rights to a fair trial, or would such demands be seen as contempt of court? I'm assuming it'd be poor sport to tell the judge that he's not doing his job, and even if granted a retrial, wouldn't win me many points with his replacement.
tl;dr: what's the best way a man can proceed if he doesn't get a fair first trial?
Re:What options do WE have? (Score:4, Insightful)
The article did have a few "think of the poor" phrases that seemed a little obtuse (in comparison to the rest of the article, which was impeccable), as justice meted for violation of copyright laws should be, ideally, blind -- listening to what's right vs. wrong instead of who is right vs. wrong.
Personally I think Ray made a good case for this (see page 2 in particular). The judge's job, he argues, is to make sure that the trial is equitable. As he points out, there's an awful lot of ex parte stuff going on, and most times the defendant actually appears it's pro se or else the defendant's representation is only there because they have to be; given that, the only way to make sure that the trial is equitable is for the court to rest a finger lightly on the scales. I hope the article's intended readers find that half as persuasive as I do.
Awesome (Score:3, Informative)
I'm Canadian but am impacted a lot by what goes on down there as certain parties luuuuv to peddle that sleeze Northward and beyond.
So allow me to throw some transnational thanks your way:) It greatly is appreciated.
I'd like to point out... (Score:5, Informative)
Isn't that intentionally misleading the Court? (Score:4, Insightful)
In a fair number of instances you mention it appears the reality is somewhat far removed from what the RIAA lawyers state, or it appears statements were made with the clear intention to mislead.
Isn't that a punishable offense? If not it should be IMHO - at a criminal level so that it cannot be insured against or subverted by some more creative lawyering. One must keep in mind that if a lawyer is prepared to step so far out of the expected modus operandi to make such statements, actual misdirection is not too much further from the accepted course of action.
It's up to the judges to safeguard the system. So far, that idea apparently hasn't worked too well..
No "John Doe" subpoenas in Germany (Score:5, Informative)
Epilogue to the article (Score:5, Informative)
you're doing it wrong (Score:5, Funny)
Re:you're doing it wrong (Score:4, Funny)
and the appropriate answer is 12/f/cf
Re:you're doing it wrong (Score:5, Funny)
What's a 12 year old girl doing in center field?
Re:you're doing it wrong (Score:5, Funny)
Lawyering, NewYorkCountry style.
Re: (Score:3, Funny)
No, no, she's in Core Foundation. Running in loops.
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.
Re: (Score:3, Funny)
Re: (Score:3, Funny)
Re: (Score:3, Interesting)
Yeh, we all thought you were fighting the good fight from your Mom's basement*.
On a serious note though, nice work, Mr NYCL. You are the first and only legal eagle I've come across who is well-grounded and rooted in reality. I hope others will follow your lead (if they aren't already).
Some men are pioneers and others are followers. You Sir, are a fine pioneer and for that we commend you. Man, you're like the legal profession's Columbo. Do you have a Mac? ;)
Re: (Score:3, Interesting)
The key thing is that the message is getting to the right ears. NYCL's work puts him in a unique position to put the pieces together to show the bigger picture. Hopefully things will improve as a result, at least until the RIAA and MPAA get the law changed. And yes, I'm THAT pessimistic about it.
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.
Re: (Score:3, Insightful)
under a lot of scrutiny because of its political bias
Now, let apply the same to the other branches of Government please ....
Political Bias = Republicrat and Demican parties, where 2/3 of the people can want something and one person can hold it up because they "want to save the planet", or "protect us against evildoers"!
Re: (Score:3, Informative)
Political Bias = Republicrat and Demican parties, where 2/3 of the people can want something and one person can hold it up because they "want to save the planet", or "protect us against evildoers"!
Not sure what you're referring to here, but if 2/3 of Congress wants to pass a bill, they can do so. 2/3 is also the amount needed to override a presidential veto, so one person can't hold it up.
Re:Of all 3 branches (Score:4, Insightful)
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.
Re:Judges, Justices, or Department of Justice? (Score:5, Interesting)
A few of the Supreme Court appointees have actually been people without law degrees, and some more have been people who didn't actually first serve as judges in any lesser capacity. In fact, it used to be fairly common for the president of that time to appoint former governors or cabinet members to the court, and some of these had never practiced law, either from the bench or in front of it. What's surprising is that during those times the SCOTUS has been led by someone who wasn't ever a trial lawyer, they dealt with, on average, about 35% more cases per session, and whenever at least one justice wasn't, about 20% more.
Re:Wonderful article (Score:5, Insightful)
A very thorough yet accessible article. Very well done- a wonderful job of putting together a complex set of factual and legal issues. Do you suppose someone at the RIAA will read and (in any way) react to this?
My guess is that they've been reading it, and preparing a public relations counterattack. It's not in their nature to learn something from it; they're not programmed to learn.
Re:this is excellent news (Score:4, Insightful)
It doesn't so much make a mockery out of the legal system but abuses it to browbeat its opponents.
The MAFIAA has a lot of money to back it. When someone with money wants to get you to submit, he uses the courts. For many rather simple reasons:
First, money. It takes a LOT of money to stand up in court against someone. Now, of course it costs both sides a lot of money, but as I said, they have more than you. Almost invariably so. And they choose their opponents carefully, I'm fairly sure they wouldn't go after, say, Donald Trump. Check their records and you'll see that you almost invariably have "regular Joes" on their target list. They don't even have to make remotely sure that they have a case at all. It's a FUD campaign, with the courts as the "muscle".
They drag you to court into an expensive battle. You have the choice now. Back down and pay their insane claims, whether you're guilty or not, or fight them and pay insane amounts of money for lawyers. Your choice, you're broke either way.
Oh, you mean suing them for expenses. Sure, you can. Unless of course they suddenly drop your case, leaving you empty handed, or drag the settlement of expenses for months and years. Tell me, how long do you think your creditors will want to wait? For the verdict that will come in a year or two? Anyone who thinks so doesn't deal with banks too often.
First they try to browbeat you into submission by using a lot of legal mumbo jumbo, a lot of bullying with exaggerated claims and a "moderate" settlement fee (this alone shows that they don't even consider their case good enough to win with a verdict, why should they be interested in a short trial? They have the time and money on THEIR side!), and should you fight it out, they wear you down by dragging it out like some well chewed gum, letting your bills pile up and simply and plainly trying to bleed you dry.
Re:What's this I shit? (Score:5, Funny)
I? Who the fuck are you?
You must be new here.
Re:Wow. (Score:4, Funny)
Ray, You rock! Great article! I'm not worthy. I'm not worthy. Seriously, I sent the link to both my friends!
Thanks for reminding me. I need to send it to my friend.