RIAA Conceals Overturned Case

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."

Countersuing Microsoft, Sony, etal

[packetmon]

Personally, I would like to see someone march a slew of television and radio commercials from vendors and how you can "Share your favorite files, songs!" and sue the vendors who touted the abilities to do so by buying their products. How many advertisements has one seen from computer manufacturers and software developers telling people about the ability to store, share and "make available" their favorite files and songs.

Re:My head is spinning

[janrinok]

I'm not an American, so please forgive me if I'm not as knowledgeable of your legal system as you are.

But when are we going to have this stuff get to the point where we can see a real change?

Just as soon as you do something about getting it changed.... What is required? Are you demanding it? Or is it someone else's problem? Please don't take offence, but I've read the stories here that you have. I agree, it isn't changing, but perhaps that's because no-one is making it happen.

Re:Countersuing Microsoft, Sony, etal

[HexaByte]

Better yet would be some nefarious prankster botting the RIAA leaders w/ file sharing software, and letting them go after themselves! If I can get out of a red-light camera ticket by making them prove I was in the drivers seat, how come the same doesn't hold for a computer that many people may have access to?

Delaying the Inevitable

[Anonymous Coward]

So it gets turned over on appeal...and it happens enough times that these lawsuits become a waste of their time. One can only hope that they start losing countersuits, finally getting a clue that their outdated business model that screws over artists and consumers has run its course.

Re:This reminds me of tax protesters

[smallfries]

Given that it might be either how about a reply instead of a mod for a change?

Let's get something straight - sharing copyrighted material is a crime, and if the the RIAA went about prosecuting just for that they wouldn't get half the flack that they do. But so far they have failed spectacularly to do so. Part of this is down to the basic structure of the internet - proving that party A shared a copyrighted file with party B beyond all reasonable doubt is hard. As they are pursuing civil actions they are going for the much easier burden of on the balance of probabilities. Unfortunately they are using the lack of knowledge in juries and judges to do so, rather than evidence of a crime.

If you present a printout of a screenshot of a file sharing client with my ip address and the name of song - that is not evidence.

Before you reach the evidence stage you need to provide:
A log of an ip transaction from a reputable source - ie a router at an ISP.
Proof that the file was not mislabeled - a hash of the transfer that shows the file contained copyrighted material.
Proof that the person being sued is responsible for files offered at that ip address.

Until then the RIAA is just pissing in the wind and winning temporarily until they get struck down on appeal.
Even if you show infringement of copyright, the "exponential" damages being asked for are absurd. Let's see a bandwidth breakdown from the ISP being converted into a "number of cds distributed" and then converted into damages.

Re:Illegal???

[NewYorkCountryLawyer]

It is highly improper. If a lawyer sends a copy of an authority to a judge, and then learns that the authority was vacated by the judge who wrote it, while there is still a motion pending on the judge's desk, he is obligated to immediately notify the judge of the change. A lawyer is not only a representative of the client; he is also an officer of the Court.

Re:My head is spinning

[NewYorkCountryLawyer]

That's litigation. Along the way everybody wins some battles, and loses some battles.

its a mess

[FudRucker]

"The United States is a nation of laws - poorly written and randomly enforced." - Frank Zappa

Re:MY GOD!

[NewYorkCountryLawyer]

They also have a duty to not have experts that perjure themselves to advance a case. As well as not basing entire cases on speculation. And making some effort to allow for the subpoenas to be challenged before they are formal court orders. While the definition of perjury seems in recent years to have slid somewhat, claiming to be an expert in order to pass off misleading information as fact. Especially when it is used to manufacture evidence which shouldn't be admissible in court to prop up a poorly thought out case. Ethics thus far have not been of any real concern to the RIAA, so I can only imagine why they would want to start behaving at this juncture having already gotten away with far more than is common. Seems to me that if they haven't been worried about being disbarred for their less than professional behavior up until now that this won't be the tipping point.

Well I can see you've been doing your reading. Agreed, they will do anything they can get away with.

Re:Countersuing Microsoft, Sony, etal

[ortholattice]

Reasonable people understand that it's ethically wrong to buy a creative work for your own use, and than give it away to all your friends so they don't have to buy it. Most people understand this ethical truth as a separate thing from the question of if or not a Mega-Huge-Record-Company is "evil" or not.

Thank you for bringing this to my attention! I wasn't aware of this "ethical truth", and I'll definitely have to mend my ways.

The next time I buy a CD, I'll play it only when I'm sure that no one else is around to hear it, unless I know they also have bought a copy. But even that may be ethically questionable since they're not listening to their copy but to mine. Like homeopathic water, even though the sound waves are physically indistinguishable, it might be possible they have a "memory" of which CD they came from - which might not be the same physical CD my friend purchased. Oh, the immorality!

And when I bring my friends over to watch a movie, I'll make sure they bring their own DVDs and DVD players, and carefully position everyone so they can't peak at the other guy's copy being played, thus preventing any possibility of ethical leakage.

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:From what you say it sounds plausible

[NewYorkCountryLawyer]

I find it very difficult that she is going to proceed, mainly because of the money.

I think this highly publicized, and highly absurd, verdict, has been a wake up call, and I think you will money and legal talent pouring into this case from all over the place. If the RIAA gets away with this nonsense, the internet as we know it is going to disappear.

Re:How does this affect closed cases

[DustyShadow]

Unfortunately an appeal will probably cost her another 100k in attorney's fees. Appeals are expensive.

Re:Ethical violation

[richie2000]

I was waiting for the cavalry to arrive.

Ray, you are the cavalry.

Re:legal appeal

[NewYorkCountryLawyer]

Our legal system doesn't rest on speculations as to what might have happened; it rests on evidence.

Re:MY GOD!

[DavidTC]

They aren't required to cite legal cases that do not help theirs.

However, what the RIAA did here was cite a legal ruling that went their way, and then failed to mention, later on in the case, that said ruling had been overturned. (And they don't get the excuse of not knowing about it, because said case involved them.)

It's not an example of failing to mention a ruling, it's an example of continuing to base legal arguments on a ruling they knew had been overturned.

Re:So What

[NewYorkCountryLawyer]

While the motion is pending they have an obligation to alert the judge that the authority they'd sent him is no longer valid.