U. Maine Law Students Trying To Shut RIAA Down

NewYorkCountryLawyer writes "Remember those pesky student attorneys from the University of Maine School of Law's Cumberland Legal Aid Clinic, who inspired the Magistrate Judge to suggest monetary fines against the RIAA lawyers? Well they're in the RIAA's face once again, and this time they're trying to shut down the RIAA's whole 'discovery' machine: the lawsuits it files against 'John Does' in order to find out their names and addresses. They've gone and filed a Rule 11 motion for sanctions (PDF), seeking — among other things — an injunction against all such 'John Doe' cases, arguing that the cases seek to circumvent the Family Educational Rights and Privacy Act which protects student privacy rights, are brought for improper purposes of obtaining discovery, getting publicity, and intimidation, and are in flagrant violation of the joinder rules and numerous court orders. If the injunction is granted, the RIAA will have to go back to the drawing board to find another way of finding out the identities of college students, and the ruling — depending on its reasoning — might even be applicable to the non-college cases involving commercial ISPs."

Rule 11

[sjbe]

In case you were wondering what Rule 11 [wikipedia.org] is like I was...

Re:Hidden subject

[morgan_greywolf]

Some additional translation:

FERPA is a law that products student records. FERPA :: Student Records == HIPPA :: Medical Records.

Joinder rules are what let a party join, whether the plaintiff or defendant, be named together in a single lawsuit. What these law students are doing is accussing the RIAA of misjoinder:

misjoinder [law.com] n. the inclusion of parties (plaintiffs or defendants) or causes of action (legal claims) in a single lawsuit contrary to statute. Reasons for a court ruling that there is misjoinder include: a) the parties do not have the same rights to a judgment; b) they have conflicting interests; c) the situations in each claim (cause of action) are different or contradictory; or d) the defendants are not involved (even slightly) in the same transaction. In a criminal prosecution the most common cause for misjoinder is that the defendants were involved in different alleged crimes, or the charges are based on different transactions.

The 3rd one is pretty obvious and means what it says.

Rule 11 [cornell.edu] is just the part of the Federal Rules for Civil Procedure that lets parties seek sanctions against a party in a lawsuit, usually for some type of misconduct.

Re:What a bucnh of idiots

[228e2]

Re: to answer 1, 2 and 3. No.

Look, its seriously time to stop pretending your silly excuses are valid. I will admit I download music/vids/etc, but it IS illegal. No seriously. Yes, some music through special online, downloadable vendors are legal ways to d/l music, but Kazaa is not. Limewire is not. Stop making excuses for yourselves and those who do this. Now, i am in no means a RIAA lover, but ignoring that stealing anything is illegal is irresponsible and childish.

Re:What a bucnh of idiots

[jwisser]

Talk about your bad car analogy.

Look: I take your car. Now I have a car, and you don't. I have clearly caused you harm: I have made it more difficult for you to go to work, spend time with your family, pick up groceries, and pay for a new car.

Now look again: You're sharing some music files. I download them from you. Now we both have a car... I mean, music files. I have not caused you harm- you still have your music that you (presumably) paid for. The only argument you can make is that I have caused harm to the RIAA (and those who work for it) and the artist. This may be the case, but it's not a given. If I was never going to buy that music to begin with, I haven't deprived anyone of anything. In fact, if I decide I like the music I would never have heard otherwise, I may decide to buy it somewhere down the road. I have caused no harm; I have simply gained a benefit, but not at anyone else's expense.

On the other hand, if I were planning to pay for the music, but downloaded it instead, I have denied income to the RIAA and the artist. That's pretty lousy, although a lot of people understandably have a lack of sympathy for uber-billionaire multinational corporations and their multi-billionaire hack artists. This lack of sympathy doesn't make the denial of income any less wrong; just more understandable.

You paint this out to be black and white, but in truth, this situation is extremely nuanced, and the heart of the problem is that our current laws (and the RIAA's current business model) are in no way sufficient or even relevant for it.

Re:New Library Wing.....

[Dragonslicer]

I'd love to see that happen, just so I could laugh. For those who didn't know (which I would assume is all but maybe 5 other people around here), the Maine School of Law isn't actually at the University of Maine, which is in Orono, but at the University of Southern Maine, which is in Portland. Still the state university system, but the campuses are about 150 miles apart.

Re:Hidden subject

[morgan_greywolf]

But privacy protections do not extend to protections of illegal activities. This comes up more often in relation to drug investigations

Drug possession and distribution are criminal actions. The RIAA is filing civil copyright infringement suits. They are not the same thing. In either case, a proper subpoena from a judge, for just cause, must be served before the school can legally produce these records. I don't think that the RIAA has done that in many cases -- they just demanded records from the schools and some schools, fearing legal initimidation from the MAFIAA, just turned them over. Both the school and the RIAA are liable for FERPA violations in these cases.

In the exchange you proferred, the school broke the law. They should have, to cover their legal arses, requested the cops come back with a subpoena. THat would be completely within the law.

Re:Hidden subject

[Anonymous Coward]

>But privacy protections do not extend to protections of illegal activities.

Actually, they do. My wife is a doctor and she always asks her patients if they're doing crystal meth (we're in the midwest; apparently the question gets changed to coke/crack in the east and pot/shrooms in the west) to make sure the meds don't have adverse reactions. Under HIPAA, she cannot provide that information to the authorities. A recent case in Kansas supported this where the attorney general (AG) tried to get Planned Parenthood (PP) to turn over medical records because he thought they were performing illegal late-term abortions. The Kansas Department of Health and PP fought the order and after 4 years have succeeded multiple times in preventing the AG from looking at patients medical records because he thought they _might_ have done something illegal (he was on a fishing expedition).

Lawyer records are similarly protected, except that a lawyer has an ethical obligation to report an ongoing crime (eg if his client tells him he plans to kill the informant).

Re:FERPA

[NewYorkCountryLawyer]

It amazes me that the schools have turned over any information. When I was working tech support for a school district hardly a day went by where we would run into an administrative roadblock because of FERPA, and all the privacy guarantees it gives to students.

I think the reason it's happened is because the proceedings are ex parte: i.e., they're behind closed doors, without prior notice to the students or to the college. Had the discovery motion been made on notice, the university and students would have had a chance to educate the judge about FERPA and other privacy statutes. Certainly the RIAA isn't doing that.

So the real culprit is the judge who signs an ex parte order instead of requiring proper notice of motions, as the law requires.

Ruling judge's sanctions

[esocid]

IANAL so don't mind me if I'm incorrect here, but in that case the ruling magistrate judge suggested Rule 11 sanctions [blogspot.com]. Stating In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. This judge's complaint is the last point of the motion that the legal aid is filing, but if even the judge has problems with what the MAFIAA is doing here I see the defendants winning most, if not all of the points of this motion.

Re:What a bucnh of idiots

[pipatron]

but it IS illegal

And because it is written in the holy book it is true and shall always be.

ignoring that stealing anything is illegal is irresponsible

A copyright violation is not stealing.

Re:Hidden subject

[NewYorkCountryLawyer]

No, you're mixing together two different arguments.

The FERPA argument is: "The records are not discoverable under FERPA; the issuance of the subpoena was contrary to law. Period." The same point is made by the Oregon Attorney General in Arista v. Does 1-17 [blogspot.com].

The additional arguments for sanctions, which are separate and distinct from the FERPA argument, are that (a) the case is brought for improper purposes (publicity, intimidation, and discovery) and (b) the deliberate misjoinder flaunts the court rules and numerous court orders.

The discovery issue under (a) is that it's never proper to bring a lawsuit in federal court for the purpose of obtaining discovery. The "John Doe" cases are definitely brought for that purpose, because they are immediately dropped after the RIAA gets the information it was looking for. I.e., it is a pre-action discovery proceeding [which is not authorized under the Federal Rules] masquerading as a copyright infringement proceeding. It is immaterial to the latter argument whether the discovery is or is not barred by FERPA.

Re:No evidence

[ari_j]

"Circumstantial" does not mean any of the following, about evidence: (1) inadmissible; (2) insufficient to prove a fact in court; or (3) unreliable. You can be convicted of murder based on nothing but circumstantial evidence, if it is strong enough. Otherwise, murderers who hide their victims' bodies the best could not be convicted. And the RIAA only has to prove infringement by a preponderance of the evidence, a much lower standard of proof than beyond a reasonable doubt as required for a criminal conviction.

This is about the RIAA's abuse of the discovery process and, in particular, its filing lawsuits for the sole purpose of collecting evidence through discovery. You personally can't just send me interrogatories [wikipedia.org] without having a pending lawsuit against me, and you also can't file a lawsuit whose only purpose is to allow you to send me interrogatories. And that's what the RIAA is apparently doing, rampantly.

Re:FERPA

[Anonymous Coward]

actually, the lawyers are required by the bar of whatever jurisdiction they practice in to disclose to the court all applicable laws and binding precedent. failure to do so leads to serious sanctions, including disbarment, which is a very serious matter for a lawyer

Re:FERPA

[NewYorkCountryLawyer]

A federal judge is not supposed to sign orders where the other side has not been given prior notice.

Re:Hidden subject

[Anonymous Coward]

FERPA is a law that products student records. FERPA :: Student Records == HIPPA :: Medical Records.

Some correct translation:

FERPA == Family Educational Rights and Privacy Act : protects student records

HIPAA == Health Insurance Portability and Accountability Act : protects medical records

Re:FERPA

[NewYorkCountryLawyer]

No judge or lawyer can be expected to "know the law". I don't care if the judge knows all about FERPA or not. I do care that the judge knows that our system requires "notice" to the other side, so the other side can get a lawyer to look into it and bring the law to the judge's attention.

Re:Hidden subject

[audubon]

...the deliberate misjoinder flaunts the court rules and numerous court orders...

flaunt to exhibit ostentatiously

flout scoff: treat with contemptuous disregard; "flout the rules"

Re:What a bunch of idiots

[monxrtr]

I know the constitutional prohibition of cruel and unusual punishment doesn't pertain to civil trials but in this case that's what it was.

http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution [wikipedia.org]

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

A.) The fines for civil damages are set by federal statute.

B.) They are excessive.

C.) Therefore, unconstitutional.

It certainly does apply to Civil Trial when damages are a priori set by Federal Statute, juries are instructed, biased, and beholden to not awarding actual damages, which according to recent Supreme Court cases, are deemed excessive at more than three times the actual damage amount. So any penalty greater than $3 per infringed song is unconstitutional, let alone $150,000 fines for $1 (not even *proved*) actual damages.

Re:Hidden subject

[demonlapin]

OT, the drug use question depends on specialty. I'm an anesthesiologist, so I ask about cocaine/crack, methamphetamine, ecstasy, PCP, and heroin/morphine/OxyContin. The first three will make you dead if I don't know about them. The last two I just use to estimate doses.

And I always preface it with: "I'm not the cops, and I don't really care, but I have to know."