ABA Judges Get an Earful About RIAA Litigations 349
NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article.
Re:Of all 3 branches (Score:5, Informative)
FYI, the Justice Department != the judicial branch. In fact, the Justice Department is and has been under a lot of scrutiny because of its political bias.
Judges, Justices, or Department of Justice? (Score:5, Informative)
The Department of Justice (DOJ) is an executive branch department (Wikipedia Entry [wikipedia.org]). The judicial system is made up of Judges at most levels, and justices are the supreme court level. To laymen, that distinction it one of terminology, not job (though they don't judge cases the same way a trial court does, and the terms have some meaning.
Great paper, still reading... (Score:4, Informative)
Obligatory.... (Score:4, Informative)
Re:Thank you for your efforts. (Score:5, Informative)
I'll second that! I'll never need this info personally, but feel this is for a greater good. The voice of NYCL is a breath of fresh air compared to the hostile assholes who are waging a war on potential customers and anyone who gets in their way. To bring some fairness to the people who are getting railroaded by the RIAA and their draconian tactics is a very, very good thing. Doing something helpful for someone you may never meet is commendable.
Thank you, count.
I'm a Sudoku fan myself.
Ray Beckerman is the man (Score:5, Informative)
Definitely my favourite Slashdot user.
Such dedication to the greater good is like a rare gem. So rare, in fact, you start doubting it even exists anymore. For those of you who don't know, Ray Beckerman has been fighting the RIAA since a long time, and has been great at it!
The suggestions from TFA (Score:5, Informative)
By all means, RTFA, as the following will be put into absolutely needed context, but here are the suggestions themselves:
Suggestion 1. Be alert to misjoinder in "John Doe" cases.
If a court is presented with a "John Doe" case that joins more than one defendant, under well-settled principles the case should be dismissed as to all John Does except John Doe number one. Plaintiffs should be ordered to show cause why they should not be held in contempt of the November 17, 2004, order of the district court in Fonovisa v. Does and subject to Rule 11 sanctions. And because there will likely be no defendant's counsel present, the court should read the plaintiffs' response with a critical eye.
Suggestion 2. Require in personam jurisdiction and venue.
If a court is presented with a John Doe case that fails to set forth detailed factual allegations of the basis for venue and for in personam jurisdiction in that district, the action should be dismissed.
Suggestion 3. No ex parte motion practice.
Nothing should be granted ex parte unless it involves an order providing for meaningful notice of the motion for discovery to be afforded to the John Doe and to the ISP. The order should state that the ISP is to be provided with a full set of papers for transmission to the John Doe, and should provide ample time from the Doe's receipt of such papers, consistent with the court's usual practices for motions on notice, to respond. These should include everything a defendant is normally entitled to receive under the court's usual rules and practices, including the summons and complaint, all of the motion papers, and the court rules, notices, and other materials supplied to defendants.
Suggestion 4. Make explicit the legal authority upon which discovery
applications are permitted or rejected.
Justice will be well served if a court is able to take the time to scrutinize the statutory basis invoked for each discovery application, cite the authority supporting its rulings, and deny discovery applications on their merits if they are not warranted by existing statutes or case law.
Suggestion 5. Scrutinize John Doe pleadings and evidence without being intimidated by technology jargon.
The complaint, of course, affords the opportunity to ensure that plaintiffs have validly pleaded a copyright infringement claim and that the evidence is admissible and covers all elements of the claim. It is easy to be overwhelmed by impressive-sounding technical and pseudo-technical jargon. Allow me to observe that if the court and the court's law clerks and law secretaries (many of whom are "digital natives") do not understand the case, that may be a sign that the plaintiff has none.
Suggestion 6. Carefully evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Careful evaluation of a complaint's sufficiency on a motion to dismiss may ultimately spare defendants significant and unwarranted hardship. A court, therefore, should stay all discovery while the motion is pending, and, if it denies the motion, certify the order denying the dismissal motion for an interlocutory appeal.
Suggestion 7. No routine consolidation or "related case" treatment.
A court need only follow traditional principles for consolidation and "related case" treatment. There is no need to create a special exception for these plaintiffs. Where the defendants are unrelated to each other, their cases are unrelated to each other and should be treated as such.
Suggestion 8. Keep discovery short and sweet.
If, and only if, the plaintiffs can muster an evidentiary showing that their case has merit and that the defendant committed copyright infringement, then the court may allow (1) a deposition of the plaintiffs; (2) a deposition of the defendant; and (3) an examination of the hard drive by a mutually agreeable independent neutral forensics expert whose fees will be advanced by the plaintiffs and will be treated as a taxable disbursement to ab
Re:God Bless Ray Beckerman (Score:5, Informative)
All I want to say is God Bless you, Ray Beckerman.. You are the lone voice crying in the wilderness against the RIAA/MPAA... May you continue fighting the good fight!!
Thank you for your kind words. But I am not alone. I have been joined in this fight by many fine men and women all across the country, lawyers and defendants alike. We learn from each other, and help and support and get strength from each other.
Re:Admissable (Score:4, Informative)
We use things like precident instead of common sense
For better or worse that is our legal system. The roots go back almost 1000 years.
http://en.wikipedia.org/wiki/Common_law [wikipedia.org]
Re:Of all 3 branches (Score:3, Informative)
Political Bias = Republicrat and Demican parties, where 2/3 of the people can want something and one person can hold it up because they "want to save the planet", or "protect us against evildoers"!
Not sure what you're referring to here, but if 2/3 of Congress wants to pass a bill, they can do so. 2/3 is also the amount needed to override a presidential veto, so one person can't hold it up.
Re:Admissable (Score:3, Informative)
Awesome (Score:3, Informative)
I'm Canadian but am impacted a lot by what goes on down there as certain parties luuuuv to peddle that sleeze Northward and beyond.
So allow me to throw some transnational thanks your way:) It greatly is appreciated.
Re:Question for NYCL... (Score:3, Informative)
No, P2P doesn't require uploading. I can download just fine from behind a firewall that prevents anybody else from downloading from me. See "leech".
Re:Ray Beckerman is the man (Score:3, Informative)
Agreed. NCYL gives me quite a bit of hope for the human species in general. If we can produce an attorney who cares about common sense, justice, and the rights of the individual maybe we're not so doomed as I fear.
Re:Question for NYCL... (Score:4, Informative)
--Validity of Plaintiffs' Copyright Infringement Claim-- "Without actual distribution copies . . . there is no violation distribution right." --William F. Patry, Patry Copyright, 2007.25 I assume that MediaSentry has some sort of signed agreement or license that gives the copies that they make in the course of thier "investigations-ha-ha-ha" the status of "authorized duplications". Without such a license or assignment of duplication rights, MediaSentry would be guilty of infringement themselves, would they not? If said licenses or assignments do in fact exist, why can the "evidence" of the download transaction (a copy being made) be termed an act of "Unauthorized Distribution" if the party actively making the copy is explicitly "authorized" to make said copies?
1. It's not a "distribution".
2. It's not "unauthorized".
Re:What's the circulation going to be? (Score:3, Informative)
How widely read is the ABA quarterly in the judging profession, and if it's not that high, how much would it cost to (and would it be worth doing to) send a dead-tree copy of the article to every judge in the country?
It's very widely read among judges.
I'd like to point out... (Score:5, Informative)
No "John Doe" subpoenas in Germany (Score:5, Informative)
In Soviet Spain... (Score:2, Informative)
But in practice, it also meant that no warrant is going to be issued for identifying any file-sharer (privacy righs > possible civil violation), thus making it impossible for our MAFIAA-like organization, called SGAE, to sue anyone.
Also note that in Spain is only illicit (not illegal) to share music and movies (software is another matter, as in Spain is ruled by different laws) UNLESS you seek profit. Of course next step for our MAFIAA was to try to prove than by downloading a film you're gaining profit cos you got the movie for free (thus saving money). But in what should be tagged as suddenoutbreakofcommonsense judges decided that "seeking profit" was to be applyed in its narrower definition, that is, selling pirated movies and records, and that individuals that downloaded a copy but did not sell it did not qualify as "seeking profit" under spanish legislation. This ruling has been upheld each time our MAFIAA has tried to appeal.
Of course they will probably make another French-like law here and screw us
Epilogue to the article (Score:5, Informative)
Re:All that needs to be said (Score:3, Informative)
The music industry's cases are rarely frivolous
Really? Here's a quote FTFA:
"In November 2004, the RIAA was ordered "to file future cases of this nature against one defendant at a time." And yet in 2008 it continues the practice of deliberate misjoinder, seemingly disregarding the joint order from Austin, Texas. District of Maine Magistrate Judge Kravchuk was so troubled by the false statements the plaintiffs had made in order to justify joinder that she recommended to the district judge that he order plaintiffs to show cause why they should not be subject to Rule 11 sanctions."
In other words, they use deplorable tactics (suing a John Doe in a state your ISP is located, but maybe hundreds/thousands miles from you) to discover from your ISP your IP address' account owner's identity, and dismiss the claim, later filing against you personally. Worse, they attempt to claim that their suits against dozens/hundreds of John Does are inseparably related (joinder). This is the definition of "frivolous" and even though they were strongly warned against it, they continue to do it over 4 years later.
Rule 11 sanctions, btw, deal with pleadings made for an improper purpose or frivolous arguments.
There's always a genuine case of copyright infringement that starts the case
Sharing the files is the act of someone at the account holder's IP address. To claim somebody infringed on copyright, you generally need to prove a real, live defendant, you know, did so. You actually need to collect this evidence in a way that is admissible according to Daubert [wikipedia.org] standards, but in fact the RIAA "investigators" are rarely deposed - and of course, on who actually was admitted that none of his evidence collection was done in accordance w/ Daubert.
The RIAA meanwhile doesn't care - they deluge the defendant with discovery motions until they are ordered to stop (if that happens). You can understand why the vast, vast majority of defendants have been ex parte settlements and that a small minority even have the means to defend themselves appropriately.
Re:Thank you for your efforts. (Score:3, Informative)
HTML version of TFA (Score:3, Informative)