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RIAA's Throwing In the Towel Covered a Sucker Punch 411

Posted by kdawson
from the many-eyes dept.
NewYorkCountryLawyer writes "The RIAA threw in the towel, all right, but was only doing it in preparation for throwing a sucker punch. After dropping its 'making available' case, Warner v. Cassin, before Judge Robinson could decide whether to dismiss or not, it was only trying to do an 'end run' (if I may mix my sports metaphors) around the judge's deciding the motion and freezing discovery. The RIAA immediately, and secretly, filed a new case against the family, calling this one 'Warner v. Does 1-4.' In their papers the lawyers 'forgot' to mention that the new case was related. As a result, Does 1-4 was assigned to another judge, who knew nothing about the old case. The RIAA lawyers also may have forgotten that they couldn't bring any more cases over this same claim, since they'd already dismissed it twice before. Not to worry, NYCL wrote letters to both judges, reminding them of what the RIAA lawyers had forgotten."
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RIAA's Throwing In the Towel Covered a Sucker Punch

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  • NYCL FTW! (Score:5, Funny)

    by Anonymous Coward on Friday June 13, 2008 @10:19AM (#23777751)
    That is all.
  • by Anonymous Coward on Friday June 13, 2008 @10:20AM (#23777763)
    Wouldn't this be contempt of court or some other punishment? I mean, I'm pretty sure the judges can't be too happy about trying to be tricked like this - can they punish the lawyers in any way?
  • by unity100 (970058) on Friday June 13, 2008 @10:21AM (#23777779) Homepage Journal
    just to make sure he's safe from any shit riaa may try pulling.

    now, which of you geeks want to take on this duty ?
  • by guruevi (827432) <<evi> <at> <smokingcube.be>> on Friday June 13, 2008 @10:23AM (#23777803) Homepage
    Either their lawyers are incompetent or crooks or both but this is ridiculous. What were they expecting? That nobody was going to find out? Thanks to NYCL we get a little bit of fairness in the crooked justice system. How can you file a 'secret' lawsuit anyway?
    • by dmgxmichael (1219692) on Friday June 13, 2008 @10:25AM (#23777839) Homepage
      Hopefully the lawyers involved will be disbarred. Probably they will not, but one can hope.
    • by j00r0m4nc3r (959816) on Friday June 13, 2008 @10:36AM (#23778033)
      How can you file a 'secret' lawsuit anyway?

      I do it all the time. I have a folder under my bed labelled "Secret Lawsuits".
    • by Rurik (113882) on Friday June 13, 2008 @10:40AM (#23778111)
      Not a real secret lawsuit. They refused to disclosed its relevance to the current case, which kept it secret from the ruling judge. They were hoping to slip it through the cracks and basically start from scratch with another judge that they thought would be sympathetic to their needs.
  • by DarkLegacy (1027316) on Friday June 13, 2008 @10:24AM (#23777823) Homepage
    When's the RIAA going to stop suing families and finally go for the homeless people? ;)
  • At this point... (Score:5, Informative)

    by Psmylie (169236) * on Friday June 13, 2008 @10:24AM (#23777827) Homepage
    It seems like the RIAA is throwing all the shit they can think of at the wall to see what will stick. Seems a little desperate to me.
  • Dirty Pool (Score:5, Interesting)

    by whisper_jeff (680366) on Friday June 13, 2008 @10:25AM (#23777841)
    A question for Ray (and any other lawyers on /.): I know lawyers are required to do what they can to the best of their ability for their clients but, to me, a non-lawyer, it really seems like the RIAA lawyers are playing dirty pool to the Nth degree. They aren't just doing everything they can - they are going beyond the call of duty to succeed even if it is beyond the scope of law and morals. Is this sort of conduct "normal" for lawyers (as in, common enough that this isn't terribly surprising) or are the RIAA lawyers truly standing out from the crowd with their actions?
    • Re: (Score:3, Interesting)

      by truthsearch (249536)
      Follow-up questions: Could the actions of these lawyers cause them to be disbarred? And if not, shouldn't they be?

      Thanks, NYCL.
      • Re:Dirty Pool (Score:5, Informative)

        by ZOMFF (1011277) on Friday June 13, 2008 @11:07AM (#23778595) Homepage
        IANAL (but I am dating one) and this is the response I got from her on the matter:

        "Every state has a grievance board that deals with things like unethical conduct. There is one case here involving a grievance against our client (another lawyer) for overly aggressive litigation techniques specifically the service of a subpoena on children, which is not illegal, but their parents felt it was improper and intimidating. Attorneys have to have professional liability insurance as well to protect against claims of malpractice, which could be attributed to "incompetence" or willful misconduct. I know that when I worked in NYC, there was an attorney we knew who was sanctioned (and possibly disbarred) for improperly managing his escrow account. I obviously know no case law on this, but my impression is that once the judge on the new case becomes aware of the Plaintiff's lack of following proper procedure, the case will be thrown out. As far as punishing the attorneys, I am not sure if the court system would take any action other than the dismissal of the case, but certainly if the RIAA feels that its attorneys were behaving incompetently, they could sue for malpractice. My guess is that this was intentional and that the RIAA is on board, though. And a grievance can come from anyone, not just the court or another attorney. And if a grievance was filed the board would have to determine that the RIAA's counsel knowingly ignored procedure."
    • Re: (Score:3, Interesting)

      by bitflip (49188)
      I'm not a lawyer, but I've hired a few over the years.

      Frankly, I want my lawyers ready and willing to sue their own mothers if that's what I want them to do.

      I regard lawyers (mine or not) as instruments of the client's will. It is the RIAA that is the scumbags, because they're the ones asking for, or at least not blocking, their tactics.
    • Re:Dirty Pool (Score:5, Interesting)

      by JustinOpinion (1246824) on Friday June 13, 2008 @10:45AM (#23778181)
      I should let NYCL answer for himself... but if you look at his comment history [slashdot.org], you'll find that he re-iterates that the RIAA lawyers are indeed using unconventionally dirty tactics. He says they are unethical and/or stupid, and sometimes implies that their actions are outright illegal and they should be disbarred.

      Example: [slashdot.org]

      It's the RIAA's lawyers that are missing something. I'm not sure what they're missing, but I've got it narrowed down to 2 things: (1) brain cells, or (2) integrity. Or possibly some of each.
      Another example: [slashdot.org]

      what they are doing is totally illegal. In federal practice ex parte relief is only granted as a last resort. In these cases the RIAA lies through its teeth to get the order, falsely saying that the ISP or University will destroy the records if they are given notice of the application. It amazes me that there is any judge in the U.S. who would sign such an order. I think you'll be seeing more and more judges refusing, as news of the RIAA's lies spreads.
      Another: [slashdot.org]

      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.
      I think it's safe to say that NYCL has a low opinion of their tactics both from an ethical standpoint and from a legal practice standpoint.
    • Collateral attack (Score:5, Informative)

      by debrain (29228) on Friday June 13, 2008 @11:38AM (#23779143) Journal
      What the RIAA lawyers are doing is often referred to as a collateral attack - the attempt to undermine one Court's unfavourable ruling by seeking out a different ruling in another court. It is also related to the concept of litigation by installments. It is generally accepted that fundamental principles of justice (fairness, expediency, access to justice, finality, and certainty) are undermined by collateral attacks. The Court committing the collateral attack is often estopped (by collateral estoppel) from making a judgment which would undermine another Court's ruling. One example of this principle exists in mainstream media as "double jeopardy". In the practice of law, this is quite a common issue; for example, when a unionized individual brings a collective agreement grievance to labour arbitration they are often then precluded from seeking out a remedy at Court.

      A collateral attack is not the same as an appeal. Appeals are to "higher" Courts that typically only have a limited scope to review the decision of a lower Court.

      Of course, you ought to seek out proper legal advice in your jurisdiction to see how these rules would apply and in particular apply to the facts of your situation.

    • Re:Dirty Pool (Score:5, Informative)

      by NewYorkCountryLawyer (912032) * <ray.beckermanlegal@com> on Friday June 13, 2008 @03:51PM (#23783749) Homepage Journal

      A question for Ray (and any other lawyers on /.): I know lawyers are required to do what they can to the best of their ability for their clients but, to me, a non-lawyer, it really seems like the RIAA lawyers are playing dirty pool to the Nth degree. They aren't just doing everything they can - they are going beyond the call of duty to succeed even if it is beyond the scope of law and morals. Is this sort of conduct "normal" for lawyers (as in, common enough that this isn't terribly surprising) or are the RIAA lawyers truly standing out from the crowd with their actions?
      No it is not normal. These lawyers are at the bottom of the profession. In my book, they're outside the profession.
  • by Reality Master 201 (578873) on Friday June 13, 2008 @10:25AM (#23777849) Journal
    Seriously, if they're gaming the system this way, they deserve to lose their licenses. This is clearly unethical and deceptive.

    Or, if you chose to think that they just forgot about the second suit, they're clearly so fucking incompetent that they deserve disbarment anyway.

    Jeez, that's some scummy shit.
    • Re: (Score:3, Funny)

      by Ang31us (1132361)
      "They're clearly so fucking incompetent that they deserve dimemberment anyway."

      There, I fixed that for you.
  • by spazmonkey (920425) on Friday June 13, 2008 @10:26AM (#23777861)
    I would like to know how this sort of thing works within the boundaries of ethics rules. Sanctions? Disbarment?
    Anyone have knowledge to input?
  • Estoppel (Score:5, Insightful)

    by Raul654 (453029) on Friday June 13, 2008 @10:27AM (#23777873) Homepage
    I'm not a lawyer, but isn't there some kind of estoppel that prevents a party from dismissing a suit that isn't going well and then refiling it?
    • Re:Estoppel (Score:5, Interesting)

      by k_187 (61692) on Friday June 13, 2008 @10:33AM (#23777991) Journal
      It depends on jurisdiction. I did pretty bad in Civil Procedure, and don't have my FRCP in front of me, but in Federal Court (which I don't even know if theyre in since I didn't RTFA), you get 2 bites at the apple. You can voluntarily remove yourself once, then refile and I think if there's a procedural problem, you can also remove and refile. Don't quote me on all that though.
      • Re:Estoppel (Score:5, Funny)

        by PolyDwarf (156355) on Friday June 13, 2008 @10:39AM (#23778089)

        It depends on jurisdiction. I did pretty bad in Civil Procedure, and don't have my FRCP in front of me, but in Federal Court (which I don't even know if theyre in since I didn't RTFA), you get 2 bites at the apple. You can voluntarily remove yourself once, then refile and I think if there's a procedural problem, you can also remove and refile. Don't quote me on all that though.
        Well, then everything's fine. There was a procedural problem with their second suit; they were going to lose.
      • Re:Estoppel (Score:5, Funny)

        by SQLGuru (980662) on Friday June 13, 2008 @11:33AM (#23779061) Journal
        An unnamed source says:

        You can voluntarily remove yourself once, then refile and I think if there's a procedural problem, you can also remove and refile. Don't quote me on all that though.
        Layne
  • Not a smart move (Score:5, Interesting)

    by Todd Knarr (15451) on Friday June 13, 2008 @10:28AM (#23777885) Homepage

    I don't think this is a smart move. Given that the first case is still active, and that the new case involves the same acts and the same defendants, can't the defense move to have the new case reassigned to the first judge and consolidated with the first case? I'd think that would be a lawyer's worst nightmare, to have tried this kind of end-run and wind up back in front of the judge you tried to evade anyway. He's sure to be none too thrilled about it, and now has a reason to crack down harder.

  • by aredubya74 (266988) on Friday June 13, 2008 @10:29AM (#23777895)
    ...since there was no actual trial for the defendants in the initial case, but how is this remotely legal? IANAL, but if someone here actually is, how is it legal, procedurally, that a plaintiff is permitted to drop a claim and then immediately file an identical new one? This seems like blatant judge shopping, as it seemed possible that Judge Robinson would dismiss the charges with prejudice (so they could not be refiled), leaving precedent for dismissal of "making available" cases.
  • Sanctions? (Score:4, Interesting)

    by Penguinisto (415985) on Friday June 13, 2008 @10:30AM (#23777919) Journal
    I'm genuinely curious - doesn't the RIAA risk facing sanctions or worse? If not from the courts, there has got to be something from the Bar Association that prevents unethical behavior like this... and if not, then maybe all you geeks out there need to see about lobbying state/provincial legislators to have some sort of stronger enforcement against unethical behavior put into place. It seems a bit too loose from my POV.



    I don't just mean the RIAA, either. SCO v IBM stands out as another really big example where lawyers get to screw directly with the things that we in geekdom make a daily living from (e.g. the RIAA spewing mistruths about how the Internet works, corps claiming rights they do not have over code, etc).


    As a bonus, maybe keeping the less scrupulous lawyers among us honest will at least make things a little easier for all of us.


    Even coordinating a letter-writing campaign couldn't hurt, y'know?

    /P

  • I don't understand (Score:5, Interesting)

    by Yurka (468420) on Friday June 13, 2008 @10:38AM (#23778069) Homepage
    why it is so important to try and nail this particular defendant. It's not like they lack potential victims; drop "making available" (just as they did in refiling this one) and do the next sweep. Is it only because they're pissed this one got away? They can't afford it. Revenge is a dish best prepared from correct ingredients; if all you have is crap, just keep shoveling it in front of the ventilator, and don't attempt precision targeting.
    • by Todd Knarr (15451) on Friday June 13, 2008 @11:07AM (#23778585) Homepage

      Because this defendant has fought and won. The RIAA needs to send a clear message to everyone else: even winning against us comes at too high a cost. That's all this is about now, and hopefully the courts will send a message to the RIAA: the legal system isn't here to use as your personal club to beat people you don't like with.

  • by splutty (43475) on Friday June 13, 2008 @10:39AM (#23778085)
    We are very proud to announce our new workshop called Subversion of Justice.

    We think this is the new trend in law at this moment, and have already found 4 speakers that are more than willing to state their case.

    Our thanks go to Mr Bush, Mr Thompson, An anonymous person from the Scientology church who wants to go by the nomicker of 'Tom', and one or more speakers from an organization calling themselves RIAA for being this fast in giving their assent to speak at this great event.

    Please stay tuned for more details.
    • by jc42 (318812) on Friday June 13, 2008 @12:18PM (#23779949) Homepage Journal
      We are very proud to announce our new workshop called Subversion of Justice.
      We think this is the new trend in law at this moment, ...


      Heh. Very deserving of the "funny" mods. But it's actually not anything new at all. The US Constitution's 5th Amendment was written to include the phrasing "... nor shall any person be subject for the same offense to be twice put in jeopardy ..." in order to prevent exactly this sort of thing.

      The folks who wrote the US Constitution were familiar with the history of monarchs and other tyrants handling their victims via "perpetual trial", in which a person would be arrested and tried, and if the court decided for the defense, it didn't matter. As you walked out of the courtroom, you would be immediately arrested again on the same charges. You could easily spent the rest of your life in jail awaiting a sequence of trials. The general legal term for this is res judicata (q.v.).

      But that term only deals with cases that have been decided by an earlier court. The American revolutionaries were also familiar with the tactic for avoiding res judicata: Terminate a trial before the decision is handed down, and file the same or similar charges against the victim in a new case. The phrasing in the US Constitution was supposed to prevent this approach, which is what the RIAA is doing.

      So it's nothing new; it's a centuries-old legal tactic used by people in power to deal with their opponents by draining their finances with unending legal battles.

      It's not a recently rediscovered tactic in the US, either. Back in the 1960s and 1970s, a lot of "subversive" groups claimed (and investigative journalists verified) that they were treated the same way. Their people would be arrested and held in jail the maximum time allowed without filing charges. They would be released without charges, and as they walked out the door of the police station, they would be met by officers who would arrest them and haul them back inside. In these cases, there weren't even charges filed, much less any trials, so the lawyers could argue that the Fifth Amendment technically didn't apply.

      It's an old story, and the legal system doesn't seem to be very good at preventing it or punishing people for doing it.

  • disbarment needed (Score:5, Insightful)

    by RichMan (8097) on Friday June 13, 2008 @10:40AM (#23778115)
    This clearly looks like an attempt by the lawyers to game the system. There are clear rules they should know. At some level lawyers for both parties are supposed to be agents of the court.

    Fines to recover the courts cost for all actions are needed on top of disbarment of the RIAA's lawyers. The message "Don't Game the System" needs to be sent.
  • Disbar them (Score:3, Interesting)

    by mlwmohawk (801821) on Friday June 13, 2008 @10:41AM (#23778141)
    Maybe I'm wrong, but to be a practicing attorney, you are legally obligated to be ethical.
  • by Anita Coney (648748) on Friday June 13, 2008 @10:46AM (#23778213) Homepage
    There's an old legal maxim that say if you can't win under the law, argue the facts. And if you can't win under either, well, there's always lying, cheating, and stealing.
    • by ColdWetDog (752185) * on Friday June 13, 2008 @11:38AM (#23779157) Homepage

      There's an old legal maxim that say if you can't win under the law, argue the facts. And if you can't win under either, well, there's always lying, cheating, and stealing.

      I thought it went:

      If the facts are on your side, bang on the facts.
      If the law is on your side, bang on the law.
      If neither the facts nor the law is on your side, bang on the table
      I'm not sure what the RIAA lawyers are doing here, banging their heads against the wall perhaps?

  • by BobMcD (601576) on Friday June 13, 2008 @10:47AM (#23778223)
    This is the direct result of all those dollars you and I have given the parent companies over the years. Next time a new CD, DVD, etc hits the shelves, consider buying it used first. Wait a month or two, until someone else gets bored of it, and support a local business instead of these vampires.

  • by WCMI92 (592436) on Friday June 13, 2008 @10:50AM (#23778275) Homepage
    Contempt of court citations?

    Seems to me that what they did here was clearly an action in contempt of court, since they ostensibly refiled the same case, hoping to get a free "reset" button with a new judge.

    This is one of the real illustrative reasons why we need a "loser pays" system in the courts (where the initiating party would be liable for all legal and court expenses if they lose), since it would discourage megacartels like the MAFIAA from using their financial advantage to manipulate the legal system.

    What the defendants should do is immediately file a contempt motion in the original court.
  • Two words... (Score:4, Insightful)

    by Fallen Andy (795676) on Friday June 13, 2008 @10:51AM (#23778291)
    If they can't be nailed on ethical practice, just two words - "IRS Audit". (if they are prepared to risk gaming the system, then there's (illegal) money involved).

    Andy

  • One solution (Score:4, Interesting)

    by boatboy (549643) on Friday June 13, 2008 @11:05AM (#23778527) Homepage
    One interesting solution I've heard for this sort of unethical lawyering is to require lawyers to carry malpractice insurance. Talk to any doctor, and they'll tell you that malpractice insurance actually makes them targets for litigation, since the prosecution knows there is a higher chance of a high payout. At least in my state, it's mandatory doctors carry it. Apply that same rule to lawyers, and you would get a great, entertaining situation of lawyers suing each other over malpractice. Too bad politicians are typically lawyers.
  • you're some sort of saint in the fight against corrupt business abuses upon society
  • by AttillaTheNun (618721) on Friday June 13, 2008 @12:15PM (#23779887)
    The RIAA is a monopolistic mafia that depends on the popularity of their artists to enforce their ways. Popularity which they artificially create via their PR machine and monopoly.

    I say we play into their game... to their detriment.

    Find the lamest, most retarded RIAA artist out there (I'm thinking orders of magnitude beyond Milli Vanilli here) and everyone (and I mean everyone) buy ONLY that artist's material. Buy every CD, online album, single, ringtone, whatever. I wanna see that artist as the sole occupant of every music chart and radio playlist. The more obvious to everyone of the sham that is taking place, the better.

    Once the RIAA is dependent on this single jackass of an artist for all of their revenue (effectively killing off the rest of their artists or driving them outside the RIAA), stop buying. Let the competition, based on free market labels and artists with true talent, drive the final stake through their sorry butts. It will go down as one of the most hilarious (and satisfying) scandals ever.

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