Judge Refuses To Sign RIAA 'Ex Parte' Order

NewYorkCountryLawyer writes "The RIAA just can't get enough of going after University of Maine students, but it appears that the judges in Portland, Maine, may be getting wise to the industry's lawyers' antics. RIAA counsel submitted yet another ex parte discovery order to the Court ('ex parte' meaning 'without notice'), in BMG v. Does 1-11, but this time the judge refused to sign, pointing out that there is no emergency since there is no evidence that records are about to be destroyed [PDF]. This is the same judge who has previously suggested the imposition of Rule 11 sanctions against the RIAA lawyers, accusing them of gamesmanship."

Re:These guys...

[Anarke_Incarnate]

Sadly, their tactics have been working.

Even if you are innocent or think you have a good chance of being found not guilty, the time it will take out of your life, possibly having your good name tarnished and hurting your job or chances of income, the negativity on your credit to have a judgment against you, etc is enough to have people settle for a few thousand dollars they should not have had to pay.

Re:These guys...

[masdog]

The RIAA are getting stupider by the minute. It's high time they learned that people aren't going to take this shit sitting down for much longer. The more the courts resist their moves, the more people will stand up for their rights.

The RIAA and their lawyers have one thing that most defendants don't have - bags of money to fund these suits. The goal isn't to win - those who fight the charges have shown that the RIAA doesn't have much of a leg to stand on - but to drag the cases to a settlement where they get some money.

I don't think they would give this up - even with a string of defeats, they will eventually find a friendly judge or get enough laws passed in their favor to protect their antiquated business model.

Re:These guys...

[Bman21212]

I would love to see people stand up, but years of seeing the **AAs, have made me pessimistic. Most will probably not stand up for their rights, because it is easier and less risky to just pay the $3k of protection fees.

Re:These guys...

[aliquis]

And how many people are actually innocent?

I don't see the issue in that a few innocent people may get caught, I see the issue in that we are all criminals ;D
(And I think it's to late for them to fix it, all crimes of copyright infrigement should just be statute-barrred.)

Good news but still...

[pravuil]

With all that has been going on with these cases, there has been tons of money thrown down the drain through court costs and layers fees. Most of it on the side of the recording industry. They haven't made any dent in which accounts for anything. I understand going after legitimate pirates who attempt to profit from shared distribution. People like that need to be jailed. With the industries failure to create a viable model of distribution within the digital age, I start to ask are they spending all their time on lawsuits while hoping the internet is a passing fad? I think it's time they wake up to reality and take a good look at what is already available and accept it. Acceptance can be a bitch sometimes but what else can you do sometimes, right? RIAA, please just move on. This is getting embarrassing.

Re:These guys...

[Darkness404]

And how many people are actually innocent?

But our justice system was founded on the principles of you are innocent until proven guilty, with a RIAA case, it is the exact opposite, you need to prove beyond a reasonable doubt that you are innocent, rather then the RIAA prove you are guilty. And some of the people have gotten fines put on them for very little solid evidence and all the evidence wasn't even enough to convict them (so someone had a few songs in their shared folders, but they can't even prove they are or were being shared!).

Re:These guys...

[fishbowl]

I'm waiting for the RIAA to claim infringement against something they don't actually represent the copyright (or mechanical license) to. One thing Copyright Law does a pretty good job of, is protecting you (the copyright holder) from other parties claiming your work as your own (and using that claim as a basis for litigation).
I keep hoping they screw this up, and claim to represent some independent songwriter who will then press criminal charges.

Re:These guys...

[gnick]

But unlimited songs would probably cost quite much in the industries view, say 50 dollar / month or so

Actually, it's about $12.99/month [rhapsody.com]... Some people just like to whine without exploring their legal options first because the criminal options are marginally cheaper and they like to play the part of a martyr whose piracy rights are being violated. If you want copywritten material, buy a copy. Otherwise, live without it (or boycott it if you feel the need to protest.)

Here come the (-1 Troll) mods... Sig embarrassingly related.

All of them!

[Anonymous Coward]

> And how many people are actually innocent?

Everyone is, until proven guilty.

(Though you have a great point about criminalizing large segments of the population for profit.)

Re:BUZZWORD alert: SYnergy:

[NewYorkCountryLawyer]

How stupid can these people be?....

Good question. I don't know the answer to it. Each time I think they've reached the mountain top, they come up with something even better.

It's as tough as the other question I keep wondering about with these characters:

"How mean and how heartless can someone who was born of a human mother be?" Each time I think I've seen how low they can sink, they find some way to sink even lower.

These questions are simply unanswerable.

Re:Good news but still...

[NewYorkCountryLawyer]

RIAA, please just move on. This is getting embarrassing.

Unfortunately, these people aren't capable of embarrassment. They are shameless.

Re:Losers should pay

[Tubal-Cain]

More specifically, if the prosecutor loses they should have to pay. If the defendant loses, lawyer fees are paid by their respective parties. Wouldn't want the RIAA to have all their cases handed to them for free.

Re:These guys...

[Solandri]

And how many people are actually innocent?

I don't see the issue in that a few innocent people may get caught, I see the issue in that we are all criminals ;D
(And I think it's to late for them to fix it, all crimes of copyright infrigement should just be statute-barrred.)

Just to complete the thought: When a law makes the majority of the population criminal (or infringers), it's time to rethink the law.

In China they have laws which everyone has to break to conduct business. The government uses these laws to arrest / imprison / execute whomever they feel like for whatever reason they feel like - if everyone is guilty of breaking the law, "innocent until proven guilty" becomes a moot point. Local officials use them to extort bribes from the populace. There's enormous potential for abuse of such laws.

Re:These guys...

[tlhIngan]

1) Of course they were being shared. Whether anyone took them up on their offer to share, and whether the person understood what they were doing... those are issues that are uncertain. But they were accessable for other people to download.

Reasonable doubt doesn't factor in at all. It is a civil case, the standard of proof is "more likely than not". Which means you will need to explain why those files were publically shared.

But is the offer to share the same thing as sharing?

To overuse a car analogy, if you buy a car that can go >110MPH (basically the highest legal speed limit), are you guilty of speeding? And should the DMV just fine every driver for speeding anyhow, since I'm sure 99% of all drivers during their lives have exceeded the speed limit (even by 1MPH... or inadvertently, going downhill, for instance)?

Just because you could, doesn't mean you did. More likely than not, the car in your driveway can exceed the speed limit. Why don't you explain why you have it, since you can be speeding?

Conscientious Objector

[Anonymous Coward]

Sorry, but I am a conscientious objector. I do not share music, I refuse to buy any more CDs, instead, I rely on the massive compilation I collected in the 80s and 90s, and in the event that I just HAVE to have the latest Fall Out Boy single, I buy it on iTunes since I have the disposable income. But generally, if it's not on the radio, I refuse to continue to fund the economic terrorists that represent the RIAA and I pretty much eliminate "pop music" from my life as an objection to the RIAAs business practice. In effect, I'm a well-to-do Gen-Xer who votes with my wallet.

I take issue with this heap o' crap because the RIAA is trying to criminalize MY behaviour. They fight against fair use and try to prevent me from transferring my CD collection to my iPod. They fight to criminalize my sharing" or music between my own media devices... the two tivos and 5 computers I own and share within my home.

I abhor any and all court cases that imply that all potential "infringers" are guilty until proven innocent, as this represents a stereotypical assumption that the "criminals" are young kids who "rip off" the establishment through their deeds.

This straw man argument actually DENIES my ability to vote with my wallet, as the courts presume that criminal violations have undermined the RIAAs business, when in fact, my boycott of their goods contributes to their market failure. However, my "voting with my wallet" is misrepresented as a "crime against the RIAA" that has cost them loss of revenue.

Criminalization of a "loss of revenue" is an undue burden on our society and must not be tolerated.

Re:Losers should pay

[ZorbaTHut]

What I've always liked:

Loser pays the winner the cost of the loser's lawyer fees. (As well as their own lawyer fees, obviously.)

If the winner had to fork over ten million to win, and the loser paid ten thousand, then the winner gets ten thousand of it back. If the loser paid ten million and still lost, and the winner could only afford ten thousand, congrats, mr. winner now has $9,990,000.

I'm sure it's horribly flawed in some way. But it's also beautifully poetic.

Re:Good news but still...

[DerangedAlchemist]

I think you have the goal wrong. The entire purpose is to take dropping distribution costs and turn them into increased profits rather than lower the price of the product. They just want to use ligation to milk this as long as possible.
Mp3s are obviously inferior to cds. A cd contains artwork, lyrics an uncompressed version of the music that can easily be made into mp3s of any quality desired. Besides that, an mp3 is obviously much cheaper to distribute. Expecting consumers to pay a similar price is obviously a flawed business model, even to a record executive.

Re:These guys...

[MightyYar]

But for $12.99 you get songs that you can only listen too on your computer or "approved devices". Of course, you can rip the streams but then you might as well just pirate since you are once again a dirty outlaw.

I think that while you have an excellent point, when you pay money I think that most people would expect an experience that is superior to not paying money. Rhapsody certainly makes it easier to find music than the pirate methods, but it is a lot harder to use your music once you get it.

I think that the original poster has a point - to get the same level of convenience as the pirate product, I expect the studios would be looking for more than the $12.99/month that Rhapsody gets.

Re:These guys...

[Anonymous Coward]

Playing the devil's advocate here (hence AC), it's not really the same thing.

Having files in a publically shared folder demonstrate *intent* to share. That is, if another computer were to request the files, they would get them.

Intent counts here, I think, because it is the last action required on behalf of the person. You would find a person equally liable if, for example, they had scheduled a computer to send out slanderous materials at a given time. The fact that someone discovers the program and stops it before the tort has occured does not entirely eliminate the defendant's liability.

I agree that no copyright infringement has occured in this situation (and thus, statutory damages should be out of the question), but I would find it to be an actionable civil tort.

Re:These guys...

[gnasher719]

The point is the legal statutes of "making available" are absurd, and should be struck down by the Courts as unconstitutional.

You are wrong. The law in this case is absolutely fine and dandy and very clear. However, the law about "making available" doesn't say what the RIAA wants the courts to believe it says. One high profile case is going back to the courts right now because the judge figured out that while a defendant (likely) made songs available for downloads, that wasn't "making available for further distribution" in the sense of copyright law. Because the judge was hoodwinked by the RIAA, he gave the wrong instructions to the jury, which therefore came to the wrong conclusions, so it has to go back to the court.

If you contacted a supermarket chain and offered them copies of Britney Spears' latest album so they can distribute them all over the country, that would be "making available for further distribution" in the sense of copyright law and would be illegal even if the supermarket chain doesn't accept your offer. If you offer the same album to ten thousand private citizens to download and keep, that is not "making available for further distribution" in the sense of the copyright law, even though the RIAA claims it is. As long as nobody accepts your offer and downloads the album, nothing illegal has happened.

Just dawned on me.

[Steauengeglase]

I've often heard it said that those in the legal profession are the ones who carry out responsibilities that were once held by kings and nobles. The RIAA's only fault is confusing kings and nobles with vindictive gods.

Re:These guys...

[sm62704]

You can't buy music from Rhapsody, you can only rent it. Rhapsody is more like a jukebox than buying a CD.

I get unlimited music for free, and legal. I have this device called a "radio", you might have heard of it? Its only drawback is that all its music is RIAA music.

Re:These guys...

[bigstrat2003]

Interesting post, but early on, you touch on a point that explains precisely why copyright is necessary and proper:

to collaborate or trade (honourable exchange of labour or possessions)

is listed as being a natural right. This is precisely why copyright is necessary. It is because works such as, say, a poem, are so easily copied. The people have no inherent right to force the author to make his work available to them: it is available to them under the terms he chooses to provide. If the author makes it available under the terms "Pay me $2 for this poem", that is obviously his right. Copyright law exists so that people cannot force the author to work for them against his terms, ie, copying his work without having paid for it.

Current copyright law (in the US, at any rate, I have no idea what other countries' laws are like), has several problems, but the concept of copyright law itself is perfectly fine. In fact, I would say that it is a (as you put it) natural law, much like laws against rape, murder, destruction of property, etc.

Re:These guys...

[NewYorkCountryLawyer]

Otherwise it'd be a madhouse in which I could sue people and automatically win most of the time (without even making any arguments), just because they didn't have the wherewithal to defend themselves properly. Well, isn't that exactly what the RIAA has been doing ?

Indeed it is.

I can't believe how well you guys have summed it up.

Thankfully, though, it appears we've entered a new phase. The phase where more and more people are fighting back, and more and more lawyers are jumping into the fray.

Re:Losers should pay

[ultranova]

I'm sure it's horribly flawed in some way. But it's also beautifully poetic.

Any system where you have to have money in order to sue or defend yourself in court is horribly flawed, because it exchanges the rule of law for plutocracy. I'm not sure how to fix it, thought; if you simply have the state pay all legal fees, it makes rising nuisance suits even easier than they are now, and might even make making them for hire a new profession.

Re:These guys...

[bigstrat2003]

I benefit from the labour of the craftsman who made my chair everyday - without his permission, and without me needing to reward him further.

True. And the craftsman was rewarded for his labor, by someone if not you. Your use of the chair is perfectly legitimate, and is under terms agreeable to the craftsman.

I benefit from the labour of coders who developed the GPL software I use everyday.

And those coders have agreed that you can use their software free of charge. You benefit from their labor under terms agreeable to them.

Only copyright says you can't copy something that someone else has authored - despite our natural right to do so.

Again, no. We have no such natural right. This would infringe upon the natural right of the author to charge a fee for his labor (if he so wishes).

I think you exaggerate by comparing the ability of our governments to enforce copyright with their ability to control the tide. If it's not within their power to enforce copyright, it isn't within their power to enforce any law. In any case, that isn't what we've been debating. We have been debating the ethics of copyright, not whether or not it's feasible.

Re:These guys...

[bigstrat2003]

No, my position is that copyright is not unnatural in the slightest, rather, it is, in fact, the only way to protect an author's natural right to seek compensation for his work.

Further, I hold that a lack of copyright is unethical and unnatural, because it allows someone to use the work of the author without compensating him (assuming he wishes to be compensated, of course), analagous to giving someone materials and forcing him to make you a table, without pay.

The public should have liberty to build upon others' work, but it should in no way be able to profit from said work without putting any effort forth themselves, nor take said work without compensation. I honestly fail to see how you can call these actions "natural", and condone them. They're natural in the same sense that it's natural to kill a man who angers you, and should be condoned to exactly the same extent.