Judge Tells RIAA To Stop 'Bankrupting' Litigants 332
NewYorkCountryLawyer writes "The Boston judge who has consolidated all of the RIAA's Massachusetts cases into a single case over which she has been presiding for the past 5 years delivered something of a rebuke to the RIAA's lawyers, we have learned. At a conference this past June, the transcript of which (PDF) has just been released, Judge Nancy Gertner said to them that they 'have an ethical obligation to fully understand that they are fighting people without lawyers ... to understand that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it ...' She also acknowledged that 'there is a huge imbalance in these cases. The record companies are represented by large law firms with substantial resources,' while it is futile for self-represented defendants to resist. The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,' and also stated that the law is 'overwhelmingly on the side of the record companies,' even though she seems to recognize that for the past 5 years she has been hearing only one side of the legal story."
Sanity Check? (Score:2, Informative)
THE COURT: They're not asking you for this, this is your son needs to pay $4,600 to the record companies, who are in desperate need of this money, unless your son can show that he has no way of paying it.
Yes, those record execs desperately need that money more than someone who just graduated from a tech institute! There were $600 in claimed damages! I know enough about law and punitive damages to know it's not set up to support billion-dollar corporations! It's to punish those who violated the law. Suing for punitive damages should not, legally, be considered a source of income.
Apparently justice is blind AND stupid in Boston.
The RIAA firms aren't really the best (Score:1, Informative)
I've heard of Robinson and Cole, but none of the firms are Vault top 100 (Vault does a guide partly based on the prestige of law firms), the RIAA could do better if they wanted.
Re:It's too bad (Score:3, Informative)
Ah, but with P2P, when you download, you upload. Under the old FTP-style download model, you could (and sometimes still can) get away with downloading copyrighted material without the copyright holder's permission, since only the uploader was infringing copyright. In BitTorrent-style file transfers, every participant (to a good first approximation) is a distributor.
Re:Summary is Inflamatory and Unforgiving (Score:5, Informative)
Her next cycle? This is a Federal judge, who has a life term, and can only be removed by impeachment, and who's salary can never be decreased.
Re:i think this is the future (Score:5, Informative)
the riaa is as if the monk scribe's union rose up and sued operators of printing presses
Actually, they did [aloha.net], or at least the Catholic Church as a whole fought the widespread possession of the bible. In many ways, monopolies act the same regardless of their target market, which is why you see a lot of corrupt popes back in the day.
Re:It's too bad (Score:5, Informative)
Too bad that our legislators aren't as honest and bright as this judge.
Yeah, uh, no. The judge basically said "this is wrong, and I'm not going to a damned thing about it."
The judge has bent over backwards to make the trial as one-sided as possible. This statement is just meaningless hot-air, since the judge has absolutely no intention of doing a damned thing about it.
I'm going to quote directly from the linked article - part of it is already quoted in the summary, but this part is important:
[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]
I suppose I shouldn't be surprised, it is Boston, the city that rewarded its police for demonstrating "valor" when they opted to not kill an MIT student who had a few blinking LEDs on her shirt...
Re:Sanity Check? (Score:5, Informative)
Please read the rest of the exchange if you're going to criticize. The judge is clearly being sarcastic. From a brief review, I also see (in the same conversation):
MR. MANN: I don't know what the merits of the case were when the earlier court rendered a judgment against Mr. Atkinson.
THE COURT: There were no merits of the case, it was a default judgment, all that happened,' you sued, there was silence on the other side, and then you come up with a judgment of $4,000 because that's the statutory damages, and Congress says you can get it. These people never defended, if now they brought forward a defense --
and
THE COURT: But you understand this is a terribly vicious cycle. On the one hand, you say we bring them into court so we can examine them. They come into court without a lawyer. They haven't a clue what these proceedings are. We have been trying to explain it to people, and then because they don't respond, the numbers keep on going up and up, and at a certain point after 133 cases in my court and countless around the country, the plaintiffs are going to realize this is making no sense and making them look bad.
-Puk
Re:Background (Score:5, Informative)
Re:Why should copyright-breakers have it easier? (Score:5, Informative)
This is a civil case, there's no guilt or innocence or presumption of innocence.
Re:It's too bad (Score:5, Informative)
Sir, that is not correct. You do not appear to have a solid grasp on the concepts of uploading and downloading data.
If you have data on your machine, and you are sending it to a remote location that is called uploading [google.com].
If data is coming from a remote machine into your computer, that process is called downloading [google.com].
If one computer makes content available for another computer to pull in, the content originator is the uploader and the content consumer is called the downloader.
Hopefully this corrects your impression that originating content for someone else to retrieve (especially over most common P2P networks) is downloading. If not, please re-read this post until it does.
Re:Why should copyright-breakers have it easier? (Score:1, Informative)
There are scams exactly like this in my area, verify with the DMV or whoever issued you the ticket. Do not send to a PO box without verifying whose it is.
Re:Summary is Inflamatory and Unforgiving (Score:5, Informative)
Summary author is a Lawyer who has been fighting the RIAA for years now. I believe he does understand the role that judges fill, one is to make sure that the court is fair to both sides.
Thank you, Gutboy. I've actually written an article about the very issue of the economic "imbalance" in these cases, and the unlevel "playing field", Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations [blogspot.com]. It was written for the "equal access to justice" issue of the ABA Judges Journal.
Re:Judge did not create the situation... (Score:4, Informative)
she didn't create the imbalance
As I said in my "Editor's Note" in the underlying article [blogspot.com] she has contributed to the imbalance:
[Ed. Note. While it is heartening to see Judge Gertner show some recognition of the unfairness in the way these cases are being handled, it is unclear how she can say that the law is overwhelmingly on the side of the record companies when she recognizes that for the past 5 years she's only been hearing one side of the argument. It is also disheartening that she evidences no recognition of how she has herself contributed to the "imbalance" by consolidating all of the cases, thus (a) providing the record companies with massive economies of scale not available to the defendants, (b) providing virtually untrammeled ex parte access to the Court on all common legal issues, and (c) creating a one-sided atmosphere in the courthouse that causes all defendants to abandon hope. How can Judge Gertner conclude that the settlements have come about because the law is on the record companies' side, when she knows full well that the reason the settlements have come about is that there is no economically viable way for defendants to defend themselves? -R.B.]
Re:It's too bad (Score:3, Informative)
Sir, that is not correct. You do not appear to have a solid grasp on the concepts of uploading and downloading data.
No, your sources are wrong (and one of them is broken). Many sources get it wrong in a number of ways, and in turn the applications themselves are getting it wrong. Some define uploading as motion between a lesser machine to a greater one (desktop to mainframe), but the stature of a machine is irrelevant as it would fail to define transfers between equal peers. It also doesn't matter where the user is physically located, nor where the machines are located physically or network-topologically. The terms need meaning even when applied to a loopback connection.
The terms are tied to the client-server relationship. The client makes the request; the server responds to the request. The actions of the client define the direction.
Content is pulled from server by client:
Client POV: "I am downloading from you."
Server POV: "You are downloading from me."
Content is pushed by client to server (not implemented in P2P):
Client POV: "I am uploading to you."
Server POV: "You are uploading to me."
In layman's terms: an upload is always a push of data; a download is always a pull. To push does not imply someone else is pulling, nor vice versa.
If one computer makes content available for another computer to pull in, the content originator is the uploader and the content consumer is called the downloader.
You're confusing the roles of a client and server with the actions of uploading and downloading. The content originator is the server and the content consumer is a downloading client. The server would have to be receptive to receiving content pushed from the client to receive an upload, but a server cannot itself be an uploader. The commands emanate from the client.
Hopefully this corrects your impression that originating content for someone else to retrieve (especially over most common P2P networks) is downloading.
I said no such thing. Your subject is the operator of the server. The operator of the server is not downloading, nor is the operator of the server uploading. The only person doing anything is the operator of the client, and that person is downloading. Downloading to their own server, from which others can download.
There is no uploading in P2P.
Re:Why should copyright-breakers have it easier? (Score:3, Informative)
Tell her to request proof of the incident. The accused has a right to face her accuser.
http://en.wikipedia.org/wiki/Confrontation_Clause [wikipedia.org]
Re:Judge did not create the situation... (Score:1, Informative)
She can't just "fix it" - if the RIAA is legally correct, she cannot just look the other way. If she did, you can bet the RIAA would know it, appeal, and overturn her decision.
While she is not powerless, her hands ARE tied to an extent.
Re:It's too bad (Score:5, Informative)
Re:It's too bad (Score:3, Informative)
Fines are imposed by the government in criminal cases. Damages are awarded to the plaintiff in civil cases. They're not the same thing.
Re:Rip Their Guts Out (Score:4, Informative)
Until you rip the RIAA's financial guts through sanctions out you aren't going to stop them. A stern talking to just isn't the same thing.
It's not so much the "financial guts" of the RIAA. It's the lawyers, and it's not really about finance. An award of sanctions against an attorney is a black mark he or she will bear throughout his or her career.
And yes, sanctions awards are richly deserved against these lawyers, IMHO.
Re:Judge did not create the situation... (Score:5, Informative)
Is she not, as judge, ultimately responsible for seeing justice served in her courtroom? Surely she bears some responsibility, at least morally if not legally for what happens in her court. I think that's what is being suggested here.
I think the judge is responsible for seeing justice served in her courtroom and for enforcing the laws. Let me break down your point into two points.
:
"Legally"In my view Judge Gertner has erred in a number of respects, routinely
-consolidating all of the cases although the defendants are unrelated;
-sustaining complaints which do not meet proper pleading standards;
-sustaining default judgment applications based on insufficient evidence and faulty legal reasoning;
-sustaining defective ex parte discovery motions;
-allowing ex parte motion practice in the first place;
-routinely allowing incompetent evidence to be used;
-routinely awarded unconstitutionally excessive damages. These are absolute legal errors. These are things she was legally required to do right, and has done wrong.
"Morally"Additionally, there are discretionary matters which she could have and should have done differently; here is where the "morally" comes in. E.g.,
-she should have required each record company to bring an officer of the company to settlement conferences
-she should not have combined the settlement conferences and other appearances for the RIAA's convenience
-she should have denied the pro hac vice motions of the Colorado lawyers, and of the Kansas lawyers who preceded them
-she should have ruled against the record companies on discretionary discovery matters where the cases did not warrant such expense, hardship, and terror;
-she should not have permitted settlements of cases by innocent people, which represents the majority of the defendants who settled;
-she should have denied the hard drive examinations;
-she should have seen to it 5 years earlier that every person who needed legal representation had legal representation;
-she should have seen to it that helpless people were not pursued.
Make civil cases like criminal ones.. (Score:3, Informative)
The people being sued are being charged with a crime "copyright infringement" with a statutory penalty that has nothing whatsoever to do with damages, but is punative in nature.
This doesn't mean that all civil cases need to be treated as criminal ones, or that punative damages in and of themselves are wrong(though often times they are excessive), merely that if you're going to ruin someone's life for a minimum of 7 years(the length of time after a bankruptcy before you can get credit again), for what is essentially a criminal statute, then they ought to have the same chance at a defense that your average drug dealer gets, and the same burden of proof.
These cases aren't about breach of contract, or negligence and they're not about recovering damages. They're about punishing, and should be treated as such, meaning government funded defense, and proof beyond a reasonable doubt. It's the same treatment you'd get for theft, and that's what the record companies are always claiming that you're doing.
Re:It's too bad (Score:3, Informative)
Nope, both misdemeanors and felonies are criminal acts. In fact, that's what the very first sentence of the misdemeanor Wikipedia entry [wikipedia.org] says:
Re:Terms out of date, and must be modified. (Score:3, Informative)
The initial seeder is the uploader, just like when someone used to place a file on a bbs -- that person was the uploader. Those laws were originally designed to punish one person out of hundreds of potential downloaders, now these laws are punishing pretty much everyone -- not just each initial seeder.
In a court of law, you don't say "This is what those terms have always meant." You say "This is what those terms meant at the time." And saying, "It doesn't matter what it used to mean at the time, it only matters what that word means now." will equally get you laughed out of court.