Judge Tells RIAA To Stop 'Bankrupting' Litigants

NewYorkCountryLawyer writes "The Boston judge who has consolidated all of the RIAA's Massachusetts cases into a single case over which she has been presiding for the past 5 years delivered something of a rebuke to the RIAA's lawyers, we have learned. At a conference this past June, the transcript of which (PDF) has just been released, Judge Nancy Gertner said to them that they 'have an ethical obligation to fully understand that they are fighting people without lawyers ... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it ...' She also acknowledged that 'there is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources,' while it is futile for self-represented defendants to resist. The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,' and also stated that the law is 'overwhelmingly on the side of the record companies,' even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story."

It's too bad

Too bad that our legislators aren't as honest and bright as this judge. Too bad that the mainstream media always sides with the MAFIAA; but it's not surprising, considering the same people who own the newspapers, TV stations, and radio stations also own the major record labels and movie studios.

The way American campaigns are financed it's a wonder we have any freedom at all. I'm thinking of the movie Brazil and the old TV show Dinasaurs with its "WeSaySo Corporation".

I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted. Ray, maybe you could use this angle in a court case?

Re:It's too bad

I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted.

It's the uploader's job to figure out if something they want to distribute is covered under copyright. They're the ones getting taken to court.

Re:It's too bad

"No, often times downloaders are getting sued too."

Only downloaders who are also distributing; Which is the default in most tools.

Read the copyright law again.

Common sense has never been common.

Re:It's too bad

Sir, that is not correct. You do not appear to have a solid grasp on the concepts of uploading and downloading data.

If you have data on your machine, and you are sending it to a remote location that is called uploading [google.com].

If data is coming from a remote machine into your computer, that process is called downloading [google.com].

If one computer makes content available for another computer to pull in, the content originator is the uploader and the content consumer is called the downloader.

Hopefully this corrects your impression that originating content for someone else to retrieve (especially over most common P2P networks) is downloading. If not, please re-read this post until it does.

Re:It's too bad

Too bad that our legislators aren't as honest and bright as this judge.

Yeah, uh, no. The judge basically said "this is wrong, and I'm not going to a damned thing about it."

The judge has bent over backwards to make the trial as one-sided as possible. This statement is just meaningless hot-air, since the judge has absolutely no intention of doing a damned thing about it.

I'm going to quote directly from the linked article - part of it is already quoted in the summary, but this part is important:

[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]

I suppose I shouldn't be surprised, it is Boston, the city that rewarded its police for demonstrating "valor" when they opted to not kill an MIT student who had a few blinking LEDs on her shirt...

Re:It's too bad

What I can't figure out is how these statutory damages could ever be considered constitutional. The Eighth Amendment is short and sweet, and pretty damn clear in its meaning:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Any person with even the slightest shred of decency can see that fining someone 10,000 times the value of an item they misappropriated is excessive.

Re:It's too bad

I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted.

Simple, every legit MPAA movie I've ever acquired has had a copyright notice at the start. So if doesn't have one, it must be free to share.. right?

i think this is the future

technological advances are running so far ahead of society's ability to adjust to and digest the implications of new technology, that as the advances get too far ahead, you get these absurdities which amount to nothing more than entrenched interests fighting progress

the riaa is as if the monk scribe's union rose up and sued operators of printing presses. incredibly stupid, but also impossible since the introduction of new technology back then proceeded at a slower clip

as society advances, its rate of progress seems to be retarded in a number of ways. a sort of trailing edge of reactionism, militant mediocrity, and end of the world believers

if progress is to continue in this world, the trailing edge can no longer be relied upon to simply slide into obscurity unnoticed and powerless. a sort of organized backlash arms itself against progress and undermines it

we must actively fight the trailing edge of progress. whether on legal issues, or in the relam of social morals. social conservatives and reactionary business practices must be waged war on. simply because they are already waging war on progress

Re:i think this is the future

the riaa is as if the monk scribe's union rose up and sued operators of printing presses

Actually, they did [aloha.net], or at least the Catholic Church as a whole fought the widespread possession of the bible. In many ways, monopolies act the same regardless of their target market, which is why you see a lot of corrupt popes back in the day.

Why should copyright-breakers have it easier?

understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people

Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

The judge is part of the Judiciary, that slowly made litigation a very expensive option — heal thyself, and consider awarding legal expenses to the winners, whoever they are, by default (rather than by special request, as happens now).

Re:Why should copyright-breakers have it easier?

What about the falsely accused?

Re:Why should copyright-breakers have it easier?

Everyone is innocent until proved guilty

This is a civil case, there's no guilt or innocence or presumption of innocence.

Re:Why should copyright-breakers have it easier?

Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

The other day, my girlfriend got a ticket in the mail saying "You were double parked, pay us $50. Your car wasn't there to give you the ticket, so we're sending it in the mail"

So you're right. This gross violation of rationality doesn't stop at copyright violations. It's spreading, and it needs to stop.

Re:Why should copyright-breakers have it easier?

I would rather be falsely accused of armed robbery than falsely accused of downloading music. If you commit a felony, the court will provide a lawyer if you can't afford one. Defendants against the RIAA, on the other hand, do not get court-appointed lawyers. That is the real problem. The Constitution requires that criminal defendants be provided with lawyers because otherwise, they could not defend themselves against the vastly superior resources of the government, even if innocent. That same imbalance exists when a large corporation sues an individual, but is not covered because corporations did not exist in their present form when the Constitution was written.

Swing and a...

It is a crime for someone with enough knowledge to help you by giving legal advice - can't allow competition you know.

No, it isn't, unless you claim you are a lawyer.

Basically, the lawyers write the laws to make themselves richer. And you are going to elect another one to the highest office now.

A lawyer who has 1) grown up on welfare, 2) has shown at least some interest in returning balance to income inequality which threatens our entire culture, and 3) will replace the Bush Administration with a cabinet full of something besides the Bush Administration.

If the ABA were under government oversight, you could pressure your congressperson to change the way it runs, or cut their funding. Since it has no governmental oversight, all you can do is bitch. That's the "freedom" of unregulated but necessary industry - they're free to extort money, you're free to waste your breath complaining about it.

Background

The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance', and also stated that the law is 'overwhelmingly on the side of the record companies', even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story."

I'm going to need a little bit more explanation that isn't in TFA. The judge has been presiding over a trial for 5 years in which only one side is allowed to speak? Is this the result of some RIAA-lobbyist induced law that says the other side doesn't get a say, or for some reason did the judge declare the other side didn't get to talk in this case? Are the next five years of the court case going to be "Now the RIAA doesn't get to talk, defendants only."?

Re:Background

I believe the point is that the record companies are repesented by lawyers, hundreds of lawyers, who are trained in the law, and who have experience not just in the strategic use of the law, but in its tactical uses as well. The strategic uses include choice of venue, points of law to be briefed and argued, witnesses to prepare and examine, etc. The tactical uses include the taking of depositions, issuing subpoenas, and requiring access to documents and accountings. All of this can be arcane and difficult to fathom for a non-lawyer, and compliance can be expensive. Non-lawyers are at a disadvantage in both depolying these strategies and tactics and in executing them to the satisfaction of a court. It is not that the defendants were not permitted to speak. It is more as if they could not find the right words to say.

Judge did not create the situation...

"The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance'"

What are you talking about? No, because she didn't create the imbalance. The legislators and litigants created it. The legislators by creating the relevant laws, the RIAA created it by suing people, and the people being sued provoked the RIAA by allegedly sharing the files in question. Copyright law exists to stipulate who is within their rights and who isn't, and the judge is there to PRESIDE over the case and the decision, the procedure for which is also constrained by law.

The imbalance exists because the RIAA has loads of money and the people they've decided to sue don't. Did the judge establish that situation? No. To imply that she's at fault for even hearing the case is silly (it's her job), unless you think the case shouldn't be heard simply because one litigant has loads of money and the other doesn't. It would be an interesting precedent.

Re:With friends like her ....

This so reminds me of the tobacco cases that, once won, the wining lawyers turned around and sued the very people they represented because they wanted a bigger share of the blood money..
Somehow the Judge chiding RIAA weasels seems like a morality lesson from the Sopranos...

Re:With friends like her ....

The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,'

Come on, now. Let's not be greedy or ungrateful. Sometimes change must happen gradually and we shouldn't bite the hand for feeding us so long as it is doing the Right Thing(tm).

With replies like this ....

needs personal pronouns?

Re:Summary is Inflamatory and Unforgiving

Her next cycle? This is a Federal judge, who has a life term, and can only be removed by impeachment, and who's salary can never be decreased.

Re:Sanity Check?

Please read the rest of the exchange if you're going to criticize. The judge is clearly being sarcastic. From a brief review, I also see (in the same conversation):

MR. MANN: I don't know what the merits of the case were when the earlier court rendered a judgment against Mr. Atkinson.
THE COURT: There were no merits of the case, it was a default judgment, all that happened,' you sued, there was silence on the other side, and then you come up with a judgment of $4,000 because that's the statutory damages, and Congress says you can get it. These people never defended, if now they brought forward a defense --

and

THE COURT: But you understand this is a terribly vicious cycle. On the one hand, you say we bring them into court so we can examine them. They come into court without a lawyer. They haven't a clue what these proceedings are. We have been trying to explain it to people, and then because they don't respond, the numbers keep on going up and up, and at a certain point after 133 cases in my court and countless around the country, the plaintiffs are going to realize this is making no sense and making them look bad.

-Puk

Re:Sanity Check?

Wow, you're dense. The judge was clearly being sarcastic in this comment. If you read the rest of the text, it seems awfully like the judge was trying to help Mr. Atkinson by implying that his son should tell the plaintiffs he has no money, having just graduated from school, rather than Mr. Atkinson giving his son money to pay the settlement.

This judge clearly feels that while the RIAA is legally correct, their heavy-handed approach to dealing with people who don't really cause all that much damage, cannot afford a lawyer, and have no clue about the legal system, is a despicable way to attempt to solve their problems.

Re:throw the book at those pirates!

There is a damage component and a punishment component. Its reasonable for damages to scale up as actual damages go up... there is no reason to do the same for punishment.

The problem with the penalties for copyright is that they are punitively applied 'per infringement'. Getting nailed for $500 for violating copyright is actually a reasonable punishment, call it $2 damages, and $498 for punishment; that's a relatively fair outcome.

The problem is that sharing 22 songs SHOULDN'T be counted as 22 separate acts of infringement; the damages might be at most $2 x 22 = $44, plus the SAME $498 for punishment. So the final award for 22 songs ought to be around $542, not $11,000, and certainly not $222,000.