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Judge Tells RIAA To Stop 'Bankrupting' Litigants 332

Posted by CmdrTaco
from the also-bake-them-cookies dept.
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."
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Judge Tells RIAA To Stop 'Bankrupting' Litigants

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  • needs enemies?

    • by pilgrim23 (716938) on Tuesday October 28, 2008 @04:08PM (#25547413)

      This so reminds me of the tobacco cases that, once won, the wining lawyers turned around and sued the very people they represented because they wanted a bigger share of the blood money..
      Somehow the Judge chiding RIAA weasels seems like a morality lesson from the Sopranos...

      • by Ethanol-fueled (1125189) on Tuesday October 28, 2008 @04:12PM (#25547463) Homepage Journal

        The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance,'

        Come on, now. Let's not be greedy or ungrateful. Sometimes change must happen gradually and we shouldn't bite the hand for feeding us so long as it is doing the Right Thing(tm).

        • by Moryath (553296) on Tuesday October 28, 2008 @05:32PM (#25548373)

          It sounds like someone needs to take this transcript, build a very coherent response countering any points she screwed up on while congratulating the things she got right, and give her a counter to remind her that she has contributed to this problem by paying attention too much to the MafiAA side so far.

      • by Original Replica (908688) on Tuesday October 28, 2008 @05:51PM (#25548565) Journal
        " companies are represented by large law firms with substantial resources,' while it is futile for self-represented defendants to resist. "
        ..." lawyers turned around and sued the very people they represented because they wanted a bigger share of the blood money.
        "

        It's a symptom of a broken legal system when self representation is "futile" and legal fees become "blood money". Yes, some might argue that lawyers are expert, trained professionals, so it only stands to reason that it would be futile for an untrained citizen to stand against them in court. That argument would make perfect sense if you were talking about pros vs joes in a different venue like sports or some industry specific contest. But the purpose of a court room isn't to determine the best performance or find a winner and a loser. A courtroom is a place to find the truth in a legal or civil dispute. Now is some of the participants are unskilled at the labyrinthine dance of courtroom etiquette, then the process should merely become less efficient at determining the truth, not less accurate. That this is not the case show a onerous flaw in our system. A flaw which has allowed lawyers to become a elite class within our supposedly egalitarian society, just look at their pay scale and tendency to become government officials.

        I realize that I am idealizing what our courtroom and legal system should be, but we have to pursue idealism in our societal systems to minimize the damage done by the imperfect humans that take part in those systems.
        • Re: (Score:3, Insightful)

          by TechForensics (944258)
          These cases CRY OUT for the legislature to act. "Amnesty for File Sharers" should be the rallying cry. Hell, we granted amnesty to conscientious objectors who relocated to Canada during the Vietnam war. Why can't we do it for these poor folks? Are you listening, Ms. Pelosi? How about the File Sharers Amnesty Act of 2008? This travesty has gone beyond black comedy into the world of Kafka and nightmare.
    • by Anonymous Coward on Tuesday October 28, 2008 @05:05PM (#25548135)
      needs personal pronouns?
  • It's too bad (Score:5, Insightful)

    by mcgrew (92797) * on Tuesday October 28, 2008 @03:58PM (#25547275) Homepage Journal

    Too bad that our legislators aren't as honest and bright as this judge. Too bad that the mainstream media always sides with the MAFIAA; but it's not surprising, considering the same people who own the newspapers, TV stations, and radio stations also own the major record labels and movie studios.

    The way American campaigns are financed it's a wonder we have any freedom at all. I'm thinking of the movie Brazil and the old TV show Dinasaurs with its "WeSaySo Corporation".

    I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted. Ray, maybe you could use this angle in a court case?

    • Re: (Score:3, Funny)

      I'm thinking of...the old TV show Dinasaurs

      Oh, so you're the one.

    • Re:It's too bad (Score:5, Insightful)

      by Shagg (99693) on Tuesday October 28, 2008 @04:08PM (#25547411)

      I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted.

      It's the uploader's job to figure out if something they want to distribute is covered under copyright. They're the ones getting taken to court.

      • Re:It's too bad (Score:4, Insightful)

        by Firehed (942385) on Tuesday October 28, 2008 @04:22PM (#25547591) Homepage

        No, often times downloaders are getting sued too. And while everyone reading Slashdot knows that it's copyright infringement, I'd put money on there being a fair few people that have been sued who don't know a damn thing about copyright law, and even a couple who honestly didn't know it was illegal at all or consider it wrong (back in the original Napster days, I sure as hell didn't know any better, though I was in sixth grade or so at the time). Remember, common sense isn't nearly as common as it once was. Granted, this doesn't make ignorance of the law acceptable, but it makes six-figure settlements that much more insane. I could see $1000 as the upper limit of what I could consider even somewhat reasonable (for a downloader) - it's more than enough to send the message, but won't drive people to take out a large life insurance policy and then go suicide bomb the RIAA HQ.

        For uploading the material, I certainly understand a harsher fine, but what they're asking for in damages is still insane. Of the little music I've purchased in the last five years or so, I've pirated 100% of it first, and of what I've pirated and haven't bought, I just don't listen. Not everyone is like that of course, but what they're claiming for damages is completely unreasonable given what percentage of downloads actually are legitimate lost sales.

      • Re: (Score:3, Informative)

        by Anonymous Coward

        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.

        • by bhtooefr (649901)

          But in Kazaa or eMule, the third party clients have options to say that you've uploaded the maximum without uploading anything at all, and your setting is trusted.

          This is why BitTorrent downloads always start out so slow, because you HAVE to download the first chunk before you can share it, and nobody will provide you with much bandwidth until you start sharing.

      • by HTH NE1 (675604)

        It's the uploader's job

        What uploaders? There are downloaders and there are servers, but I'm not seeing any uploaders. Everything is being pulled down; nothing is being pushed up.

        • by geekoid (135745)

          Someone had to put it there. someone had to make available the content. Those are the people who are liable.

          Uploader = whomever made it available.

          • by Endo13 (1000782)

            The confusion is the difference between upload bandwidth and the act of uploading.

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

        • by Hatta (162192)

          Are you dense? Every bit you download was uploaded by someone else. You might as well say "there are all these people buying, but nobody is selling!". That's the same kind of nonsense. No one can buy anything without someone to sell it. No one can download anything without someone uploading it.

          • Re: (Score:3, Insightful)

            by HTH NE1 (675604)

            Are you dense? Every bit you download was uploaded by someone else. You might as well say "there are all these people buying, but nobody is selling!" That's the same kind of nonsense. No one can buy anything without someone to sell it.

            The terms are not analogous, but I'll humor it for you.

            You can buy from vending machines, but there's nobody in that machine selling to you. You're buying from a machine, but the machine is not the seller. It is a vendor operating autonomously on the behalf of the seller according to the rules in its configuration that says you must provide metal disks in certain combinations of sizes and quantities for it to release the product (later uniform pieces of paper with certain magnetic properties in their ink).

    • Re: (Score:3, Insightful)

      by HTH NE1 (675604)

      the old TV show Dinosaurs with its "WeSaySo Corporation".

      "WESAYSO. We know what you want. We know what you need. We know where you live."

    • The way American campaigns are financed it's a wonder we have any freedom at all. I'm thinking of the movie Brazil and the old TV show Dinasaurs with its "WeSaySo Corporation".

      Dinosaurs is a great analogy - corporate America should really take a lesson from the way that show wrapped things up in the last episode.

      • by HTH NE1 (675604)

        Dinosaurs is a great analogy - corporate America should really take a lesson from the way that show wrapped things up in the last episode.

        Yeah, that wasn't the last episode. There were seven more that only aired in syndication, but the episode "Changing Nature" was the perfect episode with which to end the series' first run.

    • Re:It's too bad (Score:5, Informative)

      by Anonymous Coward on Tuesday October 28, 2008 @04:37PM (#25547781)

      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:It's too bad (Score:5, Insightful)

      by Hatta (162192) on Tuesday October 28, 2008 @04:53PM (#25547973) Journal

      What I can't figure out is how these statutory damages could ever be considered constitutional. The Eighth Amendment is short and sweet, and pretty damn clear in its meaning:

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

      Any person with even the slightest shred of decency can see that fining someone 10,000 times the value of an item they misappropriated is excessive.

      • by compro01 (777531)

        Any person with even the slightest shred of decency can see that fining someone 10,000 times the value of an item they misappropriated is excessive.

        <RIAAlogic>
        But they could have potentially uploaded it to billions of other people, so obviously the statutory penalties are not only justified, they're too far too low!
        </RIAAlogic>

      • by Endo13 (1000782)

        For shame. We all know for a fact that every single person who downloads something and keeps it available on P2P has uploaded it to 10,000 other people. Therefore, every single such person has in fact directly distributed this unauthorized material 10,000 times, which clearly indicates a fine of 10,000 times the actual value of the item is not excessive. Ok, I know some math nazi is going to come along and try to prove this wrong, so we'll just cut that off before it starts by pointing out that everyone alw

      • Re:It's too bad (Score:5, Informative)

        by Fennario (748680) on Tuesday October 28, 2008 @06:43PM (#25549067)
        Regarding the Eighth Amendment, the Supreme Court has held the "excessive fines" clause inapplicable to civil jury awards of punitive damages in cases between private parties, "when the government neither has prosecuted the action nor has any right to receive a share of the damages awarded." (Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257 (1989)) Therefore, while leaving open the issue of whether the clause has any applicability to civil penalties, the Court determined that "the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government." (Id. at 268.)
      • Re: (Score:3, Informative)

        by mrchaotica (681592) *

        Fines are imposed by the government in criminal cases. Damages are awarded to the plaintiff in civil cases. They're not the same thing.

    • by Stray7Xi (698337) on Tuesday October 28, 2008 @05:05PM (#25548131)

      I'm still trying to figure out how to tell if a file I want to download is one its creator wants me to have, or one that may get me sued and bankrupted.

      Simple, every legit MPAA movie I've ever acquired has had a copyright notice at the start. So if doesn't have one, it must be free to share.. right?

  • She should just summarily rule for the plaintiffs, treble damages of the going rate for a downloaded song (on itunes for example).

    • Re: (Score:3, Insightful)

      by Firehed (942385)

      Honestly, I don't 3x damages really make the risk/reward ratio enough to buy legitimately for anyone. The current 30,000x or so are way out of whack on the other end of things, but if you plan to deter piracy through lawsuits, you have to make people believe that they'll come out ahead financially by purchasing. There's no way to have a one in three chance of getting sued.

      Don't get me wrong, I don't support maintaining a dead business model through litigation, but knowing that the most you could be fined

      • by vux984 (928602) on Tuesday October 28, 2008 @04:52PM (#25547951)

        There is a damage component and a punishment component. Its reasonable for damages to scale up as actual damages go up... there is no reason to do the same for punishment.

        The problem with the penalties for copyright is that they are punitively applied 'per infringement'. Getting nailed for $500 for violating copyright is actually a reasonable punishment, call it $2 damages, and $498 for punishment; that's a relatively fair outcome.

        The problem is that sharing 22 songs SHOULDN'T be counted as 22 separate acts of infringement; the damages might be at most $2 x 22 = $44, plus the SAME $498 for punishment. So the final award for 22 songs ought to be around $542, not $11,000, and certainly not $222,000.

      • by Blackhalo (572408)
        "if you plan to deter piracy through lawsuits..." The problem is that the purpose of civil lawsuits is primarily to recover damages, which in the case of file sharing are minor on an individual basis. Deterrence is more in the realm of criminal cases, but in the case of file sharing, is not worth the prosecutions time.
  • technological advances are running so far ahead of society's ability to adjust to and digest the implications of new technology, that as the advances get too far ahead, you get these absurdities which amount to nothing more than entrenched interests fighting progress

    the riaa is as if the monk scribe's union rose up and sued operators of printing presses. incredibly stupid, but also impossible since the introduction of new technology back then proceeded at a slower clip

    as society advances, its rate of progress seems to be retarded in a number of ways. a sort of trailing edge of reactionism, militant mediocrity, and end of the world believers

    if progress is to continue in this world, the trailing edge can no longer be relied upon to simply slide into obscurity unnoticed and powerless. a sort of organized backlash arms itself against progress and undermines it

    we must actively fight the trailing edge of progress. whether on legal issues, or in the relam of social morals. social conservatives and reactionary business practices must be waged war on. simply because they are already waging war on progress

  • by mi (197448) <slashdot-2014@virtual-estates.net> on Tuesday October 28, 2008 @04:04PM (#25547353) Homepage

    understand that they are fighting people without lawyers... to understand that the formalities of this are basically bankrupting people

    Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

    The judge is part of the Judiciary, that slowly made litigation a very expensive option — heal thyself, and consider awarding legal expenses to the winners, whoever they are, by default (rather than by special request, as happens now).

    • by yincrash (854885) on Tuesday October 28, 2008 @04:13PM (#25547479)
      What about the falsely accused?
      • by mi (197448)

        What about the falsely accused?

        Everyone is innocent until proved guilty (or found to have breached contract). By awarding the winner of a lawsuit legal expenses from the loser, those found innocent will, at least, be able to recoup their expenses.

        That's in theory. In practice it would be even more relevant to the issue at hand, as those accused by RIAA will get their money back easier (if found innocent), whereas RIAA is shrewed enough to ask for legal expenses anyway.

    • Re: (Score:3, Insightful)

      by homer_s (799572)
      The judge is part of the Judiciary, that slowly made litigation a very expensive option

      The legal system is the mafiaa here.
      The ABA refuses to accredit schools which do not spend enough money (hence charge students a lot of money) on professors and libraries - even though more students of these schools pass the bar exam in the first sitting that even Harvard (I forget the name of the school - it was out of Utah or Colarado).

      It is a crime for someone with enough knowledge to help you by giving lega
      • Swing and a... (Score:5, Insightful)

        by copponex (13876) on Tuesday October 28, 2008 @05:02PM (#25548091) Homepage

        It is a crime for someone with enough knowledge to help you by giving legal advice - can't allow competition you know.

        No, it isn't, unless you claim you are a lawyer.

        Basically, the lawyers write the laws to make themselves richer. And you are going to elect another one to the highest office now.

        A lawyer who has 1) grown up on welfare, 2) has shown at least some interest in returning balance to income inequality which threatens our entire culture, and 3) will replace the Bush Administration with a cabinet full of something besides the Bush Administration.

        If the ABA were under government oversight, you could pressure your congressperson to change the way it runs, or cut their funding. Since it has no governmental oversight, all you can do is bitch. That's the "freedom" of unregulated but necessary industry - they're free to extort money, you're free to waste your breath complaining about it.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

      You mixed them deliberately to imply that they are all the same, which they are not.

      Defending one's self against running a red light is often much cheaper than defending one's self against a breach-of-contract, for example. When defending against a minor traffic violation,

    • by pyrr (1170465)

      I think the judge is maybe just realizing that the copywrong system is very broken. If the defendant chooses to fight the allegations the RIAA makes, they're likely to be bankrupted before they reach the end of the trial, and if they don't prevail, they'll be bankrupted at that time regardless. The punishment should fit the alleged crime. It's an intolerable situation where an act that doesn't cause quantifiable harm to the plaintiff can utterly ruin the defendant. Court cases also shouldn't be decided on w

      • by mi (197448)

        I think the judge is maybe just realizing that the copywrong system is very broken. If the defendant chooses to fight the allegations the RIAA makes

        There is nothing copyright-specific to this case — a financially-strapped side is more likely to fold and settle, than to fight a good fight. Be it copyright infringement, or just about anything else (except landlord-tenant issues, which in Boston are handled by "Housing Court", where the burden of proof is simply always on the landlord).

    • by CorporateSuit (1319461) on Tuesday October 28, 2008 @04:26PM (#25547637)

      Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

      The other day, my girlfriend got a ticket in the mail saying "You were double parked, pay us $50. Your car wasn't there to give you the ticket, so we're sending it in the mail"

      So you're right. This gross violation of rationality doesn't stop at copyright violations. It's spreading, and it needs to stop.

    • I would rather be falsely accused of armed robbery than falsely accused of downloading music. If you commit a felony, the court will provide a lawyer if you can't afford one. Defendants against the RIAA, on the other hand, do not get court-appointed lawyers. That is the real problem. The Constitution requires that criminal defendants be provided with lawyers because otherwise, they could not defend themselves against the vastly superior resources of the government, even if innocent. That same imbalance exists when a large corporation sues an individual, but is not covered because corporations did not exist in their present form when the Constitution was written.

    • by vux984 (928602)

      Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light, or breaking a contract, or committing a felony (tort, civil, and criminal examples mixed here deliberately)?

      With respect to commiting a felony, this might sound familiar:

      "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford one, an attorney will be appointed to you."

      So if c

      • by mi (197448)

        ... we'd be providing her with an attorney.

        A really, really crappy one [justicedenied.org]...

        • by vux984 (928602)

          A really, really crappy one...

          I don't dispute that for a second. And I'll go further: even those who -can- afford an attorney are still massively disadvantaged when facing a top corporate legal team. Its long been the case that the legal system too often provides the 'justice you can afford'.

          However, my original point still stands: An inadequate defense attorney is still better than none at all.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Why should someone accused of copyright infringement have it any easier (cheaper), than someone accused of running a red light

      How many injuries and deaths are caused by downloading music? The Insurance Institute for Highway Safety (IIHS), in Virginia, has noted that there were more than 200,000 crashes caused by red light runners, resulting in 176,000 injuries and 934 deaths in 2003.

    • by geekoid (135745)

      You mixing your law breakers.

      She is commenting on a specific issue, don't make it over broad to the point of fallacy.
      She doesn't want to make it easier, she want's it to be the same. In these cases the **AA have been using the system as a way to beat money out of people and completly remove any options from them.

      "heal thyself, and consider awarding legal expenses to the winners, whoever they are, by default (rather than by special request, as happens now)."

      Really? you really can't figure out why it's that w

    • The judge is part of the Judiciary, that slowly made litigation a very expensive option

      Really, its the legislature (both by writing the laws that frame litigation, and by not funding the judiciary so as to make litigation more time consuming than it would otherwise be, further increasing the cost) that has made litigation a very expensive option.

    • Re: (Score:3, Funny)

      by Sasayaki (1096761)

      Dear Sir/Madam,

      We here at the Australian Recording Studios Enterprise Homes And Technology Section (ARSEHATS) are hereby serving you notice that on this day (Wednesday 29th of October, 9:44am) you did willingly and knowingly distribute content online to which the copyright belongs to our organization. An except of this copyright material has been reproduced below for your convenience;

      Why

      As you can see, this is clearly copyright infringement. Due to the Winnings Rightly Obtained Now Guidelines law (WRONG law 20

  • by petes_PoV (912422) on Tuesday October 28, 2008 @04:05PM (#25547369)

    it's terribly critical that you stop it

    Leaving aside the incompetence of the statement, does a (mere) judge think that what he/she says will make any difference to the RIAA. After all, they're engaged in a *war* against all these heinous criminals. (ok, irony mode OFF)

    • by geekoid (135745)

      Knowing you are pissing off judges will make a difference. It might take a few.

      Really, lets not vote becasue its only 1 vote.

  • Sanity Check? (Score:2, Informative)

    Who the hell is this judge? FTA:

    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.

    • Re: (Score:3, Interesting)

      by Anonymous Coward

      Punitive damages shouldn't even be given to the plaintiff. Their intent is to punish, not compensate, so the money should just go to help fix that fourteen digit debt we've been racking up.

      • by vux984 (928602)

        Punitive damages shouldn't even be given to the plaintiff. Their intent is to punish, not compensate, so the money should just go to help fix that fourteen digit debt we've been racking up.

        I agree with this in principle. But at the same time, if the plaintiff is only allowed to recover the $4 in actual damages, what is his incentive in pursuing the case in the first place?

        Now perhaps this is precisely what you intend in the case of copyright infringement but this effectively legalizes petty crime in general

    • Re:Sanity Check? (Score:5, Informative)

      by Puk (80503) on Tuesday October 28, 2008 @04:37PM (#25547783)

      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:Sanity Check? (Score:5, Insightful)

      by idiot900 (166952) * on Tuesday October 28, 2008 @04:41PM (#25547833)

      Wow, you're dense. The judge was clearly being sarcastic in this comment. If you read the rest of the text, it seems awfully like the judge was trying to help Mr. Atkinson by implying that his son should tell the plaintiffs he has no money, having just graduated from school, rather than Mr. Atkinson giving his son money to pay the settlement.

      This judge clearly feels that while the RIAA is legally correct, their heavy-handed approach to dealing with people who don't really cause all that much damage, cannot afford a lawyer, and have no clue about the legal system, is a despicable way to attempt to solve their problems.

      • In its context, the judge knew the son was working, but not that he had just graduated. That had yet to be discussed. In its context, sarcasm would be a very uncomfortable fit. The sentence, by itself, sounds sarcastic... but not in the rant the judge is going on at the man to get him to respond coherently to what was being asked of him.

        Perhaps if she had a goofy tone of voice for the entire rant, that would change the tone of it, but as all we can go with is a transcript, you have to actually take it w
        • by Kredal (566494)

          Maybe the transcript should have a ~ after the "desparatly needed money" comment, then we'd all know it was sarcasm!

          Thanks, Geekoid! (:

  • Background (Score:5, Funny)

    by philspear (1142299) on Tuesday October 28, 2008 @04:13PM (#25547477)

    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."

    I'm going to need a little bit more explanation that isn't in TFA. The judge has been presiding over a trial for 5 years in which only one side is allowed to speak? Is this the result of some RIAA-lobbyist induced law that says the other side doesn't get a say, or for some reason did the judge declare the other side didn't get to talk in this case? Are the next five years of the court case going to be "Now the RIAA doesn't get to talk, defendants only."?

    • Re:Background (Score:5, Informative)

      by bob_herrick (784633) <bob.herrick@nOSPAM.gmail.com> on Tuesday October 28, 2008 @04:41PM (#25547831)
      I believe the point is that the record companies are repesented by lawyers, hundreds of lawyers, who are trained in the law, and who have experience not just in the strategic use of the law, but in its tactical uses as well. The strategic uses include choice of venue, points of law to be briefed and argued, witnesses to prepare and examine, etc. The tactical uses include the taking of depositions, issuing subpoenas, and requiring access to documents and accountings. All of this can be arcane and difficult to fathom for a non-lawyer, and compliance can be expensive. Non-lawyers are at a disadvantage in both depolying these strategies and tactics and in executing them to the satisfaction of a court. It is not that the defendants were not permitted to speak. It is more as if they could not find the right words to say.
  • by Anonymous Coward on Tuesday October 28, 2008 @04:13PM (#25547491)

    "The judge did not seem to acknowledge any responsibility on her part, however, for having created the 'imbalance'"

    What are you talking about? No, because she didn't create the imbalance. The legislators and litigants created it. The legislators by creating the relevant laws, the RIAA created it by suing people, and the people being sued provoked the RIAA by allegedly sharing the files in question. Copyright law exists to stipulate who is within their rights and who isn't, and the judge is there to PRESIDE over the case and the decision, the procedure for which is also constrained by law.

    The imbalance exists because the RIAA has loads of money and the people they've decided to sue don't. Did the judge establish that situation? No. To imply that she's at fault for even hearing the case is silly (it's her job), unless you think the case shouldn't be heard simply because one litigant has loads of money and the other doesn't. It would be an interesting precedent.

    • and the people being sued provoked the RIAA by allegedly sharing the files in question

      So the people who were wrongly accused provoked the RIAA because the RIAA said that they shared the songs?

      The imbalance exists because the RIAA has loads of money and the people they've decided to sue don't. Did the judge establish that situation? No.

      But she helped to perpetuate. You're right in that it's a systemic problem and not necessarily her fault, but Marie Antoinette didn't create the situation that made the statement "let them eat cake" ridiculous either. Out of touch is out of touch, and just because the judge didn't create the situation doesn't mean she doesn't have the ability to fix it, at least in this situation.

    • 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.]

  • Summary author doesn't understand the role that judges in her position play. One of their jobs is to enforce the law, as it stands. She cannot reinterpret the law or rule along the notion of "what's fair" and expect to keep her job. Especially with the entertainment conglomerates so capable of funding another, more entertainment friendly replacement in the next judicial appointment cycle.

    This kind of summary just burns bridges where they are needed most, as in, deep inside the legal system.

    Please rewrite

  • Bankrupt people (Score:4, Insightful)

    by the_arrow (171557) on Tuesday October 28, 2008 @04:41PM (#25547837) Homepage

    Bankrupt people can not pay their fees to the record companies, and neither can they (or will, probably) buy new music. It has been said before, but it seems like the record companies are shooting themselves in both their feet.

  • I wonder how good the artists royalties return would be if we took all the money the RIAA and MPAA "invested" in legal procedures and lawyers in the past years.

    Maybe someone should do the math and tell the artists... I bet they could be surprised to see where the money they should receive actually goes.

  • Rip Their Guts Out (Score:3, Insightful)

    by Nom du Keyboard (633989) on Tuesday October 28, 2008 @06:50PM (#25549143)
    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.
  • by Eskarel (565631) on Tuesday October 28, 2008 @11:25PM (#25551035)
    The fundamental problem with these cases is that they are, for all intents and purposes criminal trials in civil court.

    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.

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