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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."
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RIAA Conceals Overturned Case

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  • So What (Score:1, Informative)

    by WebHostingGuy ( 825421 ) on Saturday October 06, 2007 @06:52PM (#20883233) Homepage Journal
    This happens all the time. Of course the RIAA is not going to "rush" the court to bring forth the case. Geez, get a grip. It's like no one has ever seen the way the legal system works. When something bad happens to you, you aren't the one to bring that up in the court--the other guy does. It's amazing to see the amount of stories about how the RIAA does something in court and how people are shocked, shocked I tell you, to believe they did that. Let me fill you in--most of the stuff they do is what all lawyers do.
  • Ethical violation (Score:5, Informative)

    by monstermagnet ( 101235 ) on Saturday October 06, 2007 @07:45PM (#20883571)
    IAAL, and I've worked directly for judges. This won't win the RIAA lawyers any friends on the bench.

    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.
  • by Creepy Crawler ( 680178 ) on Saturday October 06, 2007 @07:51PM (#20883617)
    Well, our country is a representative republic. In other words, we dont vote on laws. We vote "Congressmen" and presidents in for that instead.

    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)

    When a lawyer submits a case to the Court, and then discovers that the case was overturned, he is obligated to notify the Court immediately.
  • Re:legal appeal (Score:5, Informative)

    She has plenty of grounds for an appeal. E.g.,
    -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.
  • When they sent the judge a copy of the case.... and they found out the decision had been vacated by the judge who issued it.... yes they had an obligation to notify the Court immediately.
  • Almost nobody targeted by the RIAA has the resources to withstand the $500,000 or so in legal fees the RIAA is willing to throw into a case.
  • Re:MY GOD! (Score:5, Informative)

    by GodInHell ( 258915 ) on Saturday October 06, 2007 @08:13PM (#20883777) Homepage
    They have a profesional responsabiliy (as lawyers) to inform the court when an authority they cited in support of their legal case gets overturned.

    -GiH
  • by drmerope ( 771119 ) on Saturday October 06, 2007 @08:17PM (#20883805)

    After the MN jury verdict was announced, I realized that the file sharing crowd has a lot in common with the tax protester crowd. For those that aren't aware, tax protesters have a variety of reasons why the US Income tax doesn't need to be paid: the amendment wasn't correctly ratified, wages can't be taxed, the IRS doesn't have authority, etc, etc. And They still cling to these arguments even when no court has ever ruled in their favor (it's a conspiracy, after all).

    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.

  • I don't know how to break this to you but
    -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.
  • 1. It's more than a moral obligation, it's also a legal obligation.
    2. The same RIAA lawyer is supervising, and aware of everything going on in, all 3 cases.
  • by westlake ( 615356 ) on Saturday October 06, 2007 @08:35PM (#20883913)
    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.

    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.

  • by Nephilium ( 684559 ) on Saturday October 06, 2007 @08:36PM (#20883921) Homepage

    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.

    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.

    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.

    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)

    by ari_j ( 90255 ) on Saturday October 06, 2007 @08:58PM (#20884077)
    It's not that. It's that the lawyers have ethical duties relating to what authority they cite and possibly relating to an affirmative duty to disclose unfavorable legal authority.
  • by spiritraveller ( 641174 ) on Saturday October 06, 2007 @09:13PM (#20884157)

    do they actually have any obligation to point out to the judge when case law contradicts their stance?
    Contrary to popular belief, a lawyer's obligations go further than just his client. Yes, a lawyer has a duty to his client, a very important duty. But also important is the lawyer's duty to the court.

    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.
  • by Anonymous Coward on Saturday October 06, 2007 @09:37PM (#20884267)
    Yes, it's called an appeal. Seriously, appeals are not meant to be just a re-evaluation of the matter. It is generally assumed that the lower court did their job, and an appeal is only considered if there are matters of law that weren't obeyed in the trial process. This might indeed be such a circumstance.
  • Re:Oh, yeah... (Score:3, Informative)

    by belmolis ( 702863 ) <billposer&alum,mit,edu> on Saturday October 06, 2007 @10:10PM (#20884429) Homepage

    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)

    by networkBoy ( 774728 ) on Saturday October 06, 2007 @10:54PM (#20884609) Journal
    Sadly this is true.
    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)

    by Trepidity ( 597 ) <delirium-slashdo ... h.org minus city> on Saturday October 06, 2007 @11:45PM (#20884851)
    There's speculation among some legal authorities that there might be a constitutional limit on how far statutory damages can depart from actual damages. There was a notable Supreme Court case that put such a limit on punitive damages (BMV v. Gore, 1996), holding that punitive damages can only be a relatively small multiplier over actual damages (the court suggested 10x or more would be highly unlikely to qualify). No case about statutory damages has made it up that high in the 11 years since, so whether court would extend a similar ruling to statutory damages is all speculation. In part this is because statutory damages usually are actually reasonably close to estimated actual damages, so there's no occasion for an appeal on those grounds. Copyright laws are an anomaly in that respect, but also don't come up much because convictions like this one are rare.
  • link to details (Score:4, Informative)

    by Trepidity ( 597 ) <delirium-slashdo ... h.org minus city> on Saturday October 06, 2007 @11:50PM (#20884873)
    One defendant, in UMG v. Lindor, has actually raised this defense, and the judge accepted that it can be added to the case [blogspot.com], rejecting the RIAA's arguments that it was implausible or inapplicable. In particular, the judge wrote in support of the defense's plausibility: "...Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered."
  • Re:Disbarrment? (Score:5, Informative)

    So when will this lawyer be disbarred for obviously, knowlingly, and willingly breaking the law, not to mention bringing disrepect and irreparable harm to the image of the courts and integrity of lawyers?
    That's for the judges. We did all we could do, which was notify them of what the RIAA had failed to tell them.
  • Am I missing something?
    Yes you're missing something. I said "unconstitutionality". The Supreme Court has held that jury awards which are more than ten (10) times the actual damage are presumptively unconstitutional. Read this stuff [blogspot.com] if you want to learn more about it.
  • Re:So What (Score:2, Informative)

    by tony1343 ( 910042 ) on Sunday October 07, 2007 @12:32AM (#20885111)
    As someone else pointed out, this is indeed not acceptable and is a breach of the attorneys' ethical responsibilities. This is in fact a violation of the Model Rules of Professional Conduct, which most states have adopted in one form or another. A judge would be in his right to sanction such action and the Bar should (well maybe depending upon all the facts) bring disciplinary charges against the attorneys. But, then again, the Bar almost never brings discplinary charges against attorneys. I don't believe any charges have been brought against the attorneys involved in Enron and the other corporate scandals. As a future attorney, I find this unacceptable.

    Rule 3.3 Candor Toward The Tribunal
    (a) A lawyer shall not knowingly:
    (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
    (2) 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; or
    (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
    ...

    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.

    DR 7-102 [1200.33] Representing a Client Within the Bounds of the Law.
    A. In the representation of a client, a lawyer shall not:3. Conceal or knowingly fail to disclose that which the lawyer is required by law to reveal.
    ...
    4. Knowingly use perjured testimony or false evidence.
    ...

    DR 7-106 [1200.37] Trial Conduct.
    ...
    B. In presenting a matter to a tribunal, a lawyer shall disclose:
    1. Controlling legal authority known to the lawyer to be directly adverse to the position of the client and which is not disclosed by opposing counsel.
    ...

  • So the plaintiff did not show file transfer. Could the plaintiff have done so if required?
    No

    Did they have the evidence of actual files being transferred?
    No

    If not, did they have the evidence that the computer in question shared real files and not just file stubs?
    No
    Didn't even have evidence that it shared file stubs.

    As I understand, they never got to examine the hard drive.
    Your understanding is wrong. They did examine the hard drive and it did not support their claim.
  • Re:legal appeal (Score:3, Informative)

    by TheSkyIsPurple ( 901118 ) on Sunday October 07, 2007 @01:33PM (#20889131)
    http://recordingindustryvspeople.blogspot.com/2006/11/judge-grants-marie-lindors-motion-to_09.html [blogspot.com] is pretty close to that. ...Furthermore, Lindor provides a sworn affidavit asserting that plaintiffs' actual damages are 70 cents per recording and that plaintiffs seek statutory damages under the Copyright Act that are 1,071 times the actual damages suffered.
  • 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.

  • by Anonymous Coward on Sunday October 07, 2007 @08:24PM (#20892129)
    "Telling a judge about how some other judge ruled, but leaving out the fact that the case was overturned is perfectly acceptable."

    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)
  • Jammie Thomas has asked me to notify people that contributions can be made via Paypal at freejammie.com [freejammie.com].

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