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RIAA Conceals Overturned Case 211

Posted by Zonk
from the shoe-is-on-the-other-foot dept.
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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  • MY GOD! (Score:3, Funny)

    by heinousjay (683506) on Saturday October 06, 2007 @06:46PM (#20883181) Journal
    The RIAA wouldn't sabotage their own chances in court? The humanity!
    • 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
      • Re:MY GOD! (Score:5, Interesting)

        by Romancer (19668) <romancer@deathsd ... 5926com minus pi> on Saturday October 06, 2007 @08:23PM (#20883843) Journal
        Might even be more than professional responsibility. Isn't there some kind of LAW for this sort of thing? Like presenting false evidence or fraud?

        Presenting the evidence in the first place sounds fine but when they learned that the case was overturned, shouldn't they be required by law to inform the court that the evidence they submitted had been negated.

        To me it sounds like submitting matched DNA evidence at the beginning of a trial and then learning that it was actually inconclusive halfway through the trial and not informing the defence. Isn't that illegal?
        • Re:MY GOD! (Score:5, Interesting)

          by queequeg1 (180099) on Sunday October 07, 2007 @01:19AM (#20885369)
          Most likely not in this instance. We're talking about legal theory, not evidence. It is a violation of any number of rules of professional conduct and statutes to withhold evidence.

          In this particular situation, the local ethics rules would determine how close to the line the RIAA came. Citing cases that an attorney knows have been overturned is generally a no-no. It would not per se result in a loss for that attorneys side (it is really just an ethical breach). However, it would cast a huge shadow over the attorney's argument. In this case, it sounds like the case was not overturned when the RIAA cited it (I could be wrong because, of course, I haven't read the actual article). Even if they didn't actually cross the line, many judges would fly off the handle if a party cited a case of particular importance for a keystone point and failed to alert them that it had been overturned if the citing party knew it had been overturned (such as if the citing party were a party to the overturned case).
      • Re:MY GOD! (Score:4, Interesting)

        by hedwards (940851) on Saturday October 06, 2007 @08:28PM (#20883867)
        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.
        • Re:MY GOD! (Score:5, Insightful)

          by NewYorkCountryLawyer (912032) * <ray@beckermanleg ... m minus language> on Saturday October 06, 2007 @08:32PM (#20883895) Homepage Journal

          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: (Score:3, Insightful)

          by Jafafa Hots (580169)
          The RIAA isn't ethical in its business practices, why should they be in their litigation?
    • 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.
      • I would question this. Though IANAL, I have worked in a position of technical expertise for a large legal firm, advising lawyers of technical issues pertaining to cases and I never once saw any brief that "affirmatively disclosed unfavorable legal authority", and never once did I see censure from the judiciary or bar as a result therefrom.

        Citation?

  • ...Kentucky Fried Recording Industry Association of America!
  • by packetmon (977047) on Saturday October 06, 2007 @06:49PM (#20883213) Homepage
    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.
    • by Jay L (74152)
      The RIAA certainly sucks, and IANAL, but - do they actually have any obligation to point out to the judge when case law contradicts their stance? Even if it's the very same case that previously supported their stance, and thus was cited by them?

      My very limited understanding of the adversarial system of law is that each side is expected to highlight the relevant cases that support their claims, but not necessarily to argue against themselves.
      • 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.
      • 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.
        • IAAL, but you are not my client. This isn't legal advice. I probably didn't even think before I wrote it. Cheers!

          I love your disclaimer. Most common sense one I've read in a long, long time.

          If you are willing to divulge (sole curiosity on my part, and likely you've answered this elsewhere):
          What kind of law do you practice and what about /. draws you here (I'm banking on all the *stunning* armchair IANAL banter myself...)
          -nB

          IANAL because they'd burn me at the bar :-)

        • by akpoff (683177)

          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.
          No slight intended but my first read through I parsed this as:

          do not admire (attorneys who lie to judges), opposing counsel, or anyone else for that matter.
          ;-)
    • by HexaByte (817350) on Saturday October 06, 2007 @07:04PM (#20883331)
      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?

      • Where do you live? Here in Australia you have to sign a statutory declaration naming the driver if you intend to claim it was not you. The quite reasonable argument goes along the lines of: If the car was not stolen then who did you lend it to? If you answer "I don't know" their answer is: Perhaps you do lend your car to strangers thus voiding your insurance, you are still responsible for the car and I hope this fine will discourage you from that reckless practice in the future.

        That is not possible with
        • by HexaByte (817350)
          I live in America, where, if you're rich or smart enough, you're innocent until proven guilty.

          I can lend my car to strangers w/o voiding my insurance, and, thanks to Hillary's testimony before Congress in the 90's, "I don't recall" is perfectly acceptable as an answer.

          Here the red light cams are all about $$$$. Pay us $100, and you get no points against your license for this moving violation. Challenge us and well, we have no proof it was you, and the camera company is getting 75 of the 100 dollars, s

          • There are plenty of complaints about cameras over here and you lose points as well as, rather than instead of paying the fine. And yeah, who wants to loose a few hundred bucks on the off chance you can save 50, but if your license were at stake as it can be for repeated infringements over here? Not sure how much our contractors are paid but it's NOT based on the revenue generated by fines, camera placement is determined by traffic volume and accident records (Victoria is the state that has for 40yrs pioneer
  • I wouldn't expect the RIAA to report a decision that hurts them, but I think that could be an illegal act. I think not telling the whole truth about the precident in a case is illegal. Does anyone know for sure? I'd be amazed if they got away with this, but I'm not shocked that they'd try it.
  • by 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.
    • The problem here is that the RIAA is nothing but a figurehead, a lightning rod, a distraction, that draws the ire of all concerned and keeps us from recognizing the true enemy. What is the RIAA? What does it actually do? The RIAA has no business model, manufactures no product, produces no music, and sells nothing (other than a nice line of baloney.) They used to help define audio standards way back when (anyone remember the RIAA compensation curve?) That was then: today they are merely footsoldiers in the o
    • 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.

      Even better is if they run the SCO course. RIAA members claim to own most music. Developers and end users shun using the members. Their revenue stream dries up in litigation costs and loss of artists and customers.

      One can only hope... It's already started. How many of the cases going to trial will get put on hold pending the RICO clas
  • by Chemisor (97276) on Saturday October 06, 2007 @07:10PM (#20883369)
    What we really need here is the Gowachin [wikipedia.org] Justice system where the winning lawyer kills the losing lawyer. It would certainly help cut down on stupid lawsuits.
  • Arent they *required* to disclose this information? Couldn't the entire case be tossed out and them held in contempt?
  • 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.
  • its a mess (Score:2, Insightful)

    by FudRucker (866063)
    "The United States is a nation of laws - poorly written and randomly enforced." - Frank Zappa
  • 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 TubeSteak (669689)

      In our federal system, when is a trial judge in Minnesota bound by an decision in New York?

      The Judge isn't, but they'll always take a hard look at any applicable precedents in areas of law that are relatively 'new' or 'untested'.

      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.

      Yea, but the Prosecution also has an obligation to notify that the precedent they've relied on just got overturned.

  • Doesn't an officer of the court have an obligation to provide all relevant material? If so, does this mean Thomas is likely to be overturned by the judge? Puts the judge in a rather awkward position, having to reverse himself, but if I were him I'd shoot the RIAA's lawyers out of a cannon if they truly did know, and didn't disclose.
  • The RIAA lawyers have made astonishing and unsupported claims (infringement is ongoing and continuous), outright lies (identified an individual), technical lies, violation after violation of court rules and rulings, and concealment of their reversals, which I'd call baldfaced lying to judges.

    WHERE IS THE PUNISHMENT TO THEM FOR THESE ACTIONS? Punishment sufficient to fully deter them from ever trying this again? In the Duke Rape case, the public prosecutor was disbarred - and he only ruined 3 lives along

  • The RIAA lawyers had an obligation to inform the judge and the other party as soon as they learn about that case being overturned. This is a clear cut case of malpractice, if the facts are as stated in the article.
  • by mshurpik (198339) on Sunday October 07, 2007 @12:39AM (#20885149)
    Let's take a look at the case:

    http://arstechnica.com/news.ars/post/20071003-judge-bars-riaa-president-from-testifying-in-capitol-records-v-thomas.html [arstechnica.com]

    This afternoon also marked the appearance of Jammie Thomas [defendant] on the stand. She was called by the plaintiffs immediately after lunch, who started by questioning her about her experience with computers.

    NEVER let the defendant testify, especially in first trial! Or is this a civil case where you have no 5th amendment rights? Anyway...

    The questioning then turned to her CD-ripping habits. In her deposition, Thomas said that she ripped no more than six or seven CDs per day, but on the stand today, she said she could have ripped over 2,000 songs in a little over two days.

    Wow. Then,

    She originally had said that she bought the PC from Best Buy in 2003 and that the hard drive was replaced in January or February of 2004. After her forensic expert inspected the hard drive and found that it wasn't manufactured until January 2005, she then said that she bought the PC in 2004 and that the hard drive was replaced in March 2005. "I was a year off on everything in my deposition," she said.

    Lying on the stand isn't good either.

    Finally,

    "He also said that the 'jury could do the math' on whether it was possible for her to rip 2,000 or so tracks over a two-day period given the demonstration earlier in the day."

    Well, I'm a bit surprised too...but...this is the best defense?

    Silly me, I thought the RIAA spoofed her computer and faked the whole thing.
  • Jammie Thomas has asked me to notify people that contributions can be made via Paypal at freejammie.com [freejammie.com].

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