RIAA Conceals Overturned Case 211
NewYorkCountryLawyer writes "When a Judge agreed with the RIAA's claim that 'making available' was actionable under the Copyright Act, in Atlantic v. Howell, the RIAA was quick to bring this 'authority' to the attention of the judges in Elektra v. Barker and Warner v. Cassin. Those judges were considering the same issue. When the that decision was overturned successfully, however, they were not so quick to inform those same judges of this new development. When the defendants' lawyers found out — a week after the RIAA's lawyers learned of it — they had to notify the judges themselves . At this moment we can only speculate as to what legal authorities they cited to the judge in Duluth, Minnesota, to get him to instruct the jurors that just 'making available' was good enough."
So What (Score:1, Informative)
Ethical violation (Score:5, Informative)
There is an ethical obligation to inform the court of legal authority (cases) in the controlling jurisdiction (same state, or federal circuit, for example) known to the lawyer to be directly adverse to the position of the client. See ABA Model Rules of Professional Conduct, Rule 3.3(a)(2).
Rule 3.3(a)(3) prohibits offering "false evidence." Not quite on point, because legal authority is not "evidence".
The commentary suggests that a "lawyer must not allow the tribunal to be misled by false statement of law or fact or evidence that the lawyer knows to be false." Rule 3.3, cmt. 2. That's pretty inclusive, and I'd feel comfortable arguing that failing to disclose the reversal of authority you've previous cited is an ethical violation. A referal to the state bar commission could be in order here, and let them sort it out.
Re:My head is spinning (Score:5, Informative)
We have 3 branches of Govt: Congress, Judicial, and Executive.
Congress is a bicameral entity (similar to the house of lords and commons in the UK). Senate (one of those bodies) is comprised of 100 members. There are 2 from each state, so that every state has equal representation.
The other part of Congress is the House. It is made up of 435 members, representing population makeup through the states. This is so that more populated states can influence the law more, as there is more people affected by the law.
The executive branch represents the President, bureaucrats and others in executing laws made by Congress, however that idea has been perverted. The way the US looks now, the Executive branch (President) looks like they are the Judge, jury and executioner.
The way a law is passed: Congress writes a law (well, House and Senate write their own versions which must be arbitrated by committee). When/if law is passed by a simple majority, 50% +1, then said law goes to the presidents desk. If president signs, it is a law. If not, it is sent back to Congress for a 67% majority to veto the presidents choice.
The last branch is Judicial. They are the ones to rule on laws and breakings of said laws. The highest court is the Supreme Court, which there are 9 appointed judges (appointed by the Senate) which have lifetime seats. They rule purely on Constitutionality of laws passed by Congress. They have the ability to pass judgment on laws, strike them down, or define unclear terms. Many see that the Supreme court is probably more powerful than Congress or the Presidency.
_____
Now, how companies pass "Laws" as you probably have heard on Slashdot:
Congress doesnt exist in a vacuum, but instead well entrenched and 'sponsored' by different entities and interests. For example, Maine (a state) has heavy lumber interests, so the lumber industry donates money to the said political party. Even though there is no obligation for the party to do anything, they do the lumber entities interests in making law favorable to them.
Some lobbies have grown extremely powerful. For example, the RIAA is a lobby group brought forth by the Big 5 media companies. Big Pharma is another lobby, mainly on medical drugs. These companies and groups can literally buy laws by supporting both parties (the Republicans and Democrats) with their money coffers.
For indiduals, we have no recourse for bad laws other than voting the congress/president in or out
Re:So What (Score:5, Informative)
Re:legal appeal (Score:5, Informative)
-incorrect jury instructions which removed the plaintiffs' burden of proving a transfer of actual files
-the unconstitutionality of a verdict for about 30,000 times the actual damage, and
-allowing an "expert" to testify who doesn't meet the admissibility requirements under the Federal Rules.
I'm sure there were many others, but I wasn't there so I can't give you the list. I can tell you that the above three would be sufficient -- in fact each would be sufficient on its own -- to get a reversal.
Re:Countersuing Microsoft, Sony, etal (Score:5, Informative)
Re:Who's slacking? (Score:4, Informative)
Re:MY GOD! (Score:5, Informative)
-GiH
Re:This reminds me of tax protesters (Score:3, Informative)
I don't know much about the tax protesters, so I'm going to decline to engage your specific example and challenge the logic of your argument. The critical remark you make is "They still cling to these arguments even when no court has ever ruled in their favor". Because of Stare Decisis [wikipedia.org] it is possible for the court system to repeatedly act contrary to fact and logic. And here lies an important point, there is a distinct difference between what courts do and what the law is. Those two things are not the same, but a trial judge is not (usually) receptive to interpretations of the law at variance with precedent. This is why we have appellate courts and the supreme court; those judges and justices have a bit of discretion to reconsider whether the precedent and the actual law agree.
But here again is an important point: neither the appellate courts nor the supreme court act of their own volition. They require first that a party challenge the interpretation. Consequently, I find your attitude of "give up, you lost already" rather out-of-touch with how the court system functions and the meaning of truth.
Re:This reminds me of tax protesters (Score:5, Informative)
-copyright infringement is NOT a crime
-the RIAA, thankfully, doesn't have the power to "prosecute" anyone, and
-if the RIAA had the ability to get the prosecutors interested in prosecuting these ridiculous cases, they would have done so already.
The Department of Justice stated in its brief in Elektra v. Barker [blogspot.com] that it DOES NOT PROSECUTE PEOPLE FOR "MAKING AVAILABLE" and that the only internet copyright prosecutions it has prosecuted were piracy cases.
Re:Who's slacking? (Score:5, Informative)
2. The same RIAA lawyer is supervising, and aware of everything going on in, all 3 cases.
when is a judge in MN bound by a decision in NY? (Score:4, Informative)
In our federal system, when is a trial judge in Minnesota bound by an decision in New York?
If he is a federal judge, he looks first to appellate decisions within his own Circuit - the Eighth. U.S. Courts [uscourts.gov] If he is a state judge, he looks first to appellate decisions within his own state.
But he is free to roll his own, subject only to the risk of reversal on appeal.
It is within bounds for a trial judge in Duluth to decide that the opinion of a trial judge in New York was correctly reasoned and that the opinion of the appellate court in New York was not.
The sate appellate courts of Minnesota can disagree with the state appellate courts of New York.
The Eighth Circuit Court of Appeals in St. Louis can - respectfully - disagree with the Second Circuit Court of Appeals in New York.
It is the responsibility of the U.S. Supreme Court to resolve such conflicts - if it believes that they are needlessly disruptive and of Constitutional significance.
But the Supremes take on only 100-200 cases a year.
Re:My head is spinning (Score:4, Informative)
Also, the President can not sign the bill, and in seven days it becomes law. This would usually be done for either bills that don't allow for a big press conference, or for ones in which the President doesn't support, but knows the veto will be overturned.
Another mistake here, the Justices are appointed by the President, and then confirmed by the Senate.
Oh, and one other duty of the Executive branch is that the Vice President presides over the Senate, and casts tie-breaking votes (but only votes if there is a tie).
Nephilium
Re:MY GOD! (Score:4, Informative)
Re:Countersuing Microsoft, Sony, etal (Score:5, Informative)
A lawyer is an "officer of the court" and must be truthful to the court. A lawyer must inform a court of law that is on point and contradicts his argument. He can argue for a change in the law or for a finding that it is unconstitutional, but he cannot simply ignore bad law in hopes of fooling a judge.
That doesn't mean there aren't lawyers who break the rules. But those of us who care about the profession do not admire attorneys who lie to judges, opposing counsel, or anyone else for that matter.
Re:How does this affect closed cases (Score:4, Informative)
Re:Oh, yeah... (Score:3, Informative)
Sorry, this is wrong. As officers of the court, lawyers have obligations to the court that override their obligations to their clients. For example, a lawyer may not suborn perjury by his or her client and may not intentionally misrepresent the facts of the case. When a lawyer submits case citations, they must, as far as he knows, be valid. If a decision is overturned while the motion is still before the court, the attorney is obligated immediately to notify the court. Failure to do so is fraud upon the court. Not only will the defendant here have an additional ground for appeal but the RIAA attorneys are subject to sanctions.
Re:Who's slacking? (Score:3, Informative)
One of the admins of a site parallel to my own gripe site (sig) was taken to court by Farmers. The estimates are that they spent north of $700K to litigate the case. His legal fees were in the $200K territory. It was only through heaps of pro-bono time and assistance from his home-owners insurance that he was able to fight the case, and his is one with gobs of precedent (gripe sites/free speech/fair use). In the end the case was settled out of court and part of the settlement was a confidentiality clause (I'm assuming this is SOP) so I don't know the details of the deal, but his site is still up and last time I was on the phone with him I asked him how he was financially, with his house and such, and got a positive answer.
It's only because they "lost" that case and because I'm in California with its wonderful SLAPP-Back statue that I think they have not outright sued me... yet. That and my riveting response to their C&D letter: http://www.farmersreallysucks.com/editorialtakedown1.shtml [farmersreallysucks.com].
The main difference I see (and am disturbed by) between cases like Rene's and the RIAA cases is the dragnet methods the RIAA use for identifying targets. The rest I see as fairly uniform IP sleaze law practice.
-nB
never been ruled on (Score:3, Informative)
link to details (Score:4, Informative)
Re:Disbarrment? (Score:5, Informative)
Re:legal appeal (Score:5, Informative)
Re:So What (Score:2, Informative)
I believe these cases are in New York, which has not adopted the Model Rules. However, the New York Lawyer's Code of Professional Responsibility has similar provisions.
Re:legal appeal (Score:3, Informative)
Didn't even have evidence that it shared file stubs.
Re:legal appeal (Score:3, Informative)
Re:Countersuing Microsoft, Sony, etal (Score:2, Informative)
spiritraveller is only mostly right.
Lawyers are required to share all facts with the court and the opposing counsel. Hence they often 'do not want to know' about things when asking their clients questions. They have inferred that there is evidence somewhere that could harm the case, but aren't required to tell anyone if they've just guessed it might exist, only if they know it does.
They are not required to share legal interpretations they don't like, except where they conflict or overturn things they use. I.e., if you cite something in court, you damn well better not cite it if it's been overturned, or fail to cite a later decision that narrowed the ruling.
Of course, the correct way to fight in court is to figure out what your opponent is going to say and disprove it before they get there, so if there is a ruling that seems to hurt your case, it's probably a good idea to mention it and explain why it doesn't hurt your case. (And if a case is sufficiently obviously applicable to criminal defense, and the defense doesn't mention it, the prosecutor should, only because he's risking a mistrial when it comes out that the defense is incompetent.)
Different lawyers might have different access to the facts and whatnot. Prosecutors have access to the evidence well before the defense lawyers. (They have access before they even decide who to charge.) Lawyers have to share factual information to make the system work.
But every lawyer is presumed to have the same access to case law and actual law, and thus sharing there is not that relevant. What is relevant is that you don't mislead judges. The opposing counsel is supposed to stop you from using misleading legal interpretations to mislead the judge. But you don't get to do it even if they fail to stop you.
Which is, sadly, what the RIAA did here. They cited a case, which was all well and good, but then failed to mention it was overruled during the trial. Which, in practice, means they were 'citing' it when they knew it was invalid. Which means the judge is very very pissed at them. I doubt it's grounds of any sort of disbarment, unless they explicitly based on arguments on the overturned ruling after it was overturned, but it's exactly the sort of crap that will cause the judge to keep them on a very short lease.
And considering how idiotic their lawsuits are, basically means they lost this one, because now they're going to have the judge, in addition to the defense, poking holes in their arguments.
Re:No, actually they don't. (Score:2, Informative)
Wrong. Very wrong. Colorado rule is the same as everyone else:
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
Colorado Rules of Professional Conduct Rule 3.3(a)(3)
Paypal Fund for Contributions to Jammie Thomas (Score:4, Informative)