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Appeals Court Stays RIAA Subpoena 78

Posted by timothy
from the careful-dancin' dept.
NewYorkCountryLawyer writes "The United States Court of Appeals for the Second Circuit has stepped in and issued a temporary stay of the RIAA's subpoena for the identity of a student at the State University of New York in Albany. The student, 'John Doe #3,' had filed an appeal and motion for stay pending appeal, arguing that the appeal 'raises significant issues, some of first impression' (PDF), such as the standards for the use of ex parte procedures for expedited discovery, the scope of the First Amendment right of anonymity over the internet, the scope of the distribution right in copyright law, and the pleading requirements for infringement of such right."
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Appeals Court Stays RIAA Subpoena

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  • This could be the first time we will have appellate review of the RIAA's wacky, un-American, "ex parte", "John Doe" procedures.
    • And I'm especially pleased that the defendant's lawyer is Richard Altman, because he is an excellent attorney; he was actually working against the RIAA's madness even before I got into the fight. He is a brilliant, and highly principled, guy.
      • before I got into the fight

        When and how did you get involved in the RIAA?

      • Re: (Score:3, Funny)

        by DoofusOfDeath (636671)

        He is a brilliant, and highly principled, guy.

        I'm confused. Are you contesting Douglas Adams' claim that the universe can only contain one principled attorney at a time???

        • Either that, or NYCL is only doing this because he thinks he can get a massive settlement out of this...
      • Re:This could be big (Score:4, Interesting)

        by sjwaste (780063) on Wednesday March 11, 2009 @03:47PM (#27155971)
        Mr. Beckerman: I'm a law student (graduating this year, economy be damned). I still cant figure out how exactly the Doe D's are able to respond if the initial pleading doesn't identify them. Is it up to the service provider to pass through notice to the Does? Once a Doe receives notice, assuming he does before default judgment is entered, how does the Doe respond without identifying himself or entering an "appearance" and basically waiving jurisdiction? I'm sure I'm missing something procedurally here, hope you can point me in the right direction.
        • Mr. Beckerman: I'm a law student (graduating this year, economy be damned). I still cant figure out how exactly the Doe D's are able to respond if the initial pleading doesn't identify them. Is it up to the service provider to pass through notice to the Does? Once a Doe receives notice, assuming he does before default judgment is entered, how does the Doe respond without identifying himself or entering an "appearance" and basically waiving jurisdiction? I'm sure I'm missing something procedurally here, hope you can point me in the right direction.

          You're not missing anything. The RIAA lawyers have been missing something. And unfortunately many of the judges have been missing something.

          As you have learned in law school, it is of the essence of the American judicial system that BEFORE JUDICIAL ACTION IS TAKEN AGAINST SOMEONE THEY MUST BE GIVEN NOTICE, AND AN OPPORTUNITY TO BE HEARD.

          • Re: (Score:3, Funny)

            by kwandar (733439)

            "As you have learned in law school, it is of the essence of the American judicial system that BEFORE JUDICIAL ACTION IS TAKEN AGAINST SOMEONE THEY MUST BE GIVEN NOTICE, AND AN OPPORTUNITY TO BE HEARD."

            Ray, Ray, Ray .... its only been a few weeks and you seem to have forgotten a key reason why there is no need for these defendants to be heard before a judge.

            Come on Ray ... you know the RIAA aren't filing any more lawsuits, right? They told us so!! They just want to uhm ... uhmm .... know who some of their

            • .... its only been a few weeks and you seem to have forgotten a key reason why there is no need for these defendants to be heard before a judge. Come on Ray ... you know the RIAA aren't filing any more lawsuits, right? They told us so!!

              Yes but you fail to take into account the Oppenheim theorem; I'm surprised at your lack of mathematical knowledge. The Oppenheim theorem, named after the RIAA's 'prince of darkness' Matthew Oppenheim, is as follows:

              1. The opposite of anything said by an RIAA spokesman = the Truth.
              2. An RIAA spokesman said to congressional committees "we discontinued initiating new lawsuits in August" [blogspot.com].
              3. Therefore the Truth must be that hundreds of new cases have been commenced since August, and cases are even being commenced this month.

              (I cheated and did some independent investigation, just to see if it does work. I am proud to say the theorem continues to serve its purpose, which is to enable us to learn the Truth. The real value of this theorem is its practical application which is to save time. Instead of looking things up, researching, investigating, doing depositions, etc., we can just find out the Truth with this simple equation. And its success rate is astounding.)

              • by kwandar (733439)

                Uhmmm ... yes .. forgot .... the Oppenheim effect ....

                It will be interesting effect to observe when Professor Nesson's team finally get their opportunity to cross examine Matthew Oppenheim.

                • Uhmmm ... yes .. forgot .... the Oppenheim effect .... It will be interesting effect to observe when Professor Nesson's team finally get their opportunity to cross examine Matthew Oppenheim.

                  Yes well in that case, the Oppenheim theorem will probably be of little use to you.

                  You will need to substitute the Great Wall theorem:

                  When questions are asked, no answers are given.

                  As you can see, the applicability of the Great Wall theorem renders the Oppenheim theorem useless in such situations.

                  I can see you have much to learn about the RIAA litigation process.

                  • by kwandar (733439)

                    "I can see you have much to learn about the RIAA litigation process."

                    I think I'd like to keep it that way although, if it ever came to it, I'd be in court. I've fought bigger and won and lost and won and .....

        • by Aeolien (939711)
          It says in TFA that SUNY told the students they were intending to comply with the motion to identify. Thus, they were able to defend themselves. Normally, they don't get this luxury.
          • It says in TFA that SUNY told the students they were intending to comply with the motion to identify

            That's AFTER the motion had already been granted. I.e., the RIAA made a motion; no copies were served on anybody; it was just the RIAA and the judge; the judge let them get away with that, and signed the order granting the motion for discovery and ordering the students' identities to be divulged.

            Only AFTER losing a motion they never even knew existed, were the students advised they'd lost. Then, on probably a couple of days notice, they had to get a lawyer to step in and make a motion to vacate. But getting a judge to change his or her mind after he or she has already ruled on something is much different than getting a judge not to go in that direction in the first place.

            There is no reason in the world why the RIAA could not have made the motion on notice. If it wanted to sue 16 John Does it could have given the university 16 copies of the motion papers and supporting documents to distribute to them. The judge should have insisted on that. Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.

            • Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.

              Didn't some federal judge tell them not to do that?

              • Also he should not have allowed them to join 16 separate John Does; that was a flagrant violation of the Federal Rules of Civil Procedure.

                Didn't some federal judge tell them not to do that?

                Yes. (I like it when people do their homework; good work Thinboy.) The judges in Austin Texas in 2004 told them to cease and desist from that practice. They've been ignoring it ever since. In those rare instances when a "John Doe" is lucky enough to get legal representation, the judges usually sever as to the improperly joined John Does. But NO judge should be allowing it, whether the Does have lawyers or not.

                When forced to go back to Austin, Texas, and face those same judges, they dropped the case against

        • Alright, it's time to shut up with the frigging questions already. Does this look like an AskSlashdot or Ask So-And-So story? No. So ixnay with the on-topic banter already, so the funny yet completely irrelevant posts can get some well deserved mod points. If Taco sees the completely skewed ratio of Funny to Interesting posts for this story he'll have to start deleting crap, and then all your typing will be for naught. I'm already starting to have dirty voyeur feelings like I've hacked into NewYorkCoun

          • Alright, it's time to shut up with the frigging questions already. Does this look like an AskSlashdot or Ask So-And-So story? No. So ixnay with the on-topic banter already, so the funny yet completely irrelevant posts can get some well deserved mod points. If Taco sees the completely skewed ratio of Funny to Interesting posts for this story he'll have to start deleting crap, and then all your typing will be for naught. I'm already starting to have dirty voyeur feelings like I've hacked into NewYorkCountryLawyer's gmail account. So enough already.

            I think you're wrong about this. If there were a minimum Funny-to-Interesting ratio, I'd have been banned from Slashdot quite a while ago.

      • Between you and Richard, we owe you many a beers for your fine work. Thank you!
    • Wikipedia provided me a definition of ex parte and I'm somewhat familiar with the RIAA's approach, thanks to you. What I haven't been able to find is a succinct explanation of what particular legal approach the RIAA takes is unconventional.

      Is it simply suing a group of unknown defendants before doing discovery with the ISP to find out who they are suing? That seems to be what ex parte means. (For whatever the wikipedia article may be worth.)

      Thanks for being Slashdot's resident legal counsel. (In a non oblig

      • I haven't been able to find is a succinct explanation of what particular legal approach the RIAA takes is unconventional

        They're too numerous to enumerate but I've highlighted a small sampling of some of them here [blogspot.com] and here [blogspot.com].

      • Re:This could be big (Score:5, Informative)

        by Jason Levine (196982) on Wednesday March 11, 2009 @04:50PM (#27156899)

        Of course, Ray's links give a more in depth explanation, but I think this is the basic summary of the RIAA's unusual tactics:

        1. Group a bunch of unrelated "John Does" that you want to sue into one lawsuit in a court that likely doesn't have jurisdiction over any of those John Does. (Mainly this saves the RIAA time, money, and effort for having the file multiple together. Plus, it probably means that the judge won't look at each individual case and see how flimsy the evidence is.)
        2. File for discovery of the identity of the John Does without giving the John Does enough time or information to defend themselves.
        3. Once the identity is discovered, drop the case. This way it can't be appealed and steps 1-3 can't be ruled illegal.
        4. Have your "Settlement Center" contact each of the individuals threatening a massive lawsuit unless they settle. (This shows that they're not *really* interested in suing these individuals. They just want the information so their Settlement Center can strong arm these folks outside of a courtroom into paying the RIAA.)

        Most people, at Step 4 will settle simply because they don't have the time and money to spend to defend themselves. They can pay $2,000 to make it all go away or they can spend weeks in a courtroom (likely one far from where they live), spend thousands on a lawyer (which they *may* recoup via a counter-suit but then again might not), and might face fines in the millions. Sure, more people have been defending themselves recently, so the RIAA's tactics post-step-4 have changed slightly, but that's the basic rundown.

        • 3. Once the identity is discovered, drop the case. This way it can't be appealed and steps 1-3 can't be ruled illegal.

          Can a defendant insist that the lawsuit go forward?

          • I'm not a lawyer, but I don't think that a defendant can insist on a trial going forward. Unless the defendant is countersuing, they get no say in whether the plaintiff can drop the case. Oftentimes, at the point that the RIAA drops the case, the defendant doesn't even know what the lawsuit against them is all about or even that there is a lawsuit against them.

    • Re: (Score:2, Interesting)

      Do you think there's any chance at all the 2nd Circuit Appeals court will actually rule on some of the other issues at hand, such as the scope of the distribution right in copyright law?

      For example, I personally think the RIAA's interpretation of the law being that every copy is a distribution is really very harmful to fair use. IMHO, if I purchase content, then it is my right to convert that content to any convenient medium of my choosing -- IOW, if I buy a CD at a music store, then I also believe that I

      • Do you think there's any chance at all the 2nd Circuit Appeals court will actually rule on some of the other issues at hand

        And why wouldn't they?
        -The issues are squarely presented.
        -After 40,000 cases, there is ZERO appellate authority.
        -The 2nd Circuit is considered by many to be the leading copyright court in the country.

        • Re: (Score:2, Insightful)

          It seems to me that courts have a history of not ruling on issues that they feel might not be substantive to the case at hand. For instance, his privacy rights as relating to the First Amendment or the procedural problems with ex parte requests themselves might cause the 2nd Court to ignore the scope of copyright as insubstantial to the case at hand.

          • Okay, so deliberately behave in a way that will force their hand, that is, make a huge website containing all sorts of aids for exercising fair use (read:DeCSS etc), along with a warning to visitors to only use it under fair use (perhaps with a link to Wikipedia). IANAL, but I would love to see a case like that go to trial, if only because we might get a clearer (more favorable) ruling on Universal v. Reimerdes [wikipedia.org] (the DeCSS case in which the defendant asserted the unconstitutionality of the DMCA; the judge s

    • Enthusiasm is as yet little premature. Basically, this only says that the judge will let them make their argument.

  • by Tubal-Cain (1289912) on Wednesday March 11, 2009 @03:14PM (#27155419) Journal

    raises significant issues, some of first impression

    Translation: I need to buy a suit but don't get paid for 2 weeks.

  • by bonch (38532) on Wednesday March 11, 2009 @03:52PM (#27156061)

    Slashdot in 2000:

    "Suing Napster is stupid! The RIAA should be going after individual copyright infringers. If they just did that, there wouldn't be a problem."

    Slashdot in 2009:

    "Suing individual copyright infringers is evil! The RIAA should do nothing while everybody pirates everything under the sun. That way, I can keep getting shit for free without feeling guilty."

    • by TheRealMindChild (743925) on Wednesday March 11, 2009 @03:57PM (#27156133) Homepage Journal
      No one is contesting that the RIAA should not be going after the copyright infringers. It is how they are going about it. They are gaming the legal system, going after innocent people knowing that almost NO ONE has the means to fight back. It is pretty much an extortion free-for-all.
      • by bonch (38532)

        No one is contesting that the RIAA should not be going after the copyright infringers.

        Are you and I reading the same Slashdot?

        They are gaming the legal system, going after innocent people knowing that almost NO ONE has the means to fight back.

        They're not gaming the system. They're suing those they discover to be distributing files. You're presuming that they're innocent so you can portray the RIAA as bad guys.

    • Slashdot in 2012:

      RIAA what is that?

      ok that's wishful thinking that would be great

    • Innaccurate (Score:5, Informative)

      by Locke2005 (849178) on Wednesday March 11, 2009 @04:13PM (#27156373)
      Slashdot now: "The RIAA should be going after anybody who profits from the unauthorized distribution of copyrighted material. In addition, the RIAA should be issuing take down notices or cease and desist orders to those it believes to be distributing copyrighted materials for free (which is the same thing your local library does!) In no case should the RIAA ignore established conventions of due process or rules of evidence (I.e. an easily falsified screen shot in and of itself is not evidence of infringement.)"

      We also object to the Record Companies' use of hired guns; it would be much more appropriate for them to say "Sony Music is suing you!" rather than "The RIAA, a front for the Record Companies designed to evade accountability, is suing you!"

      I probably missed some, but I think that is the gist of it.

      • The difference is that libraries lend a limited number of copies.

        Copyright is an industrial era concept that doesn't work terribly well in the information age where information scarcity no longer applies. Copyright was a wonderful innovation in its day, but today we need another way to encourage people to publish their works.

        Anybody got any ideas?

        • by Locke2005 (849178)
          Our local library carries CDs and DVDs as well as books. They also have free Wi-Fi and make desks available for people to bring in their own laptops. I had a conversation with the librarian where I pointed out that anybody could come in, rip all the CDs to their laptop, and place them back on the shelf. If I recall correctly, his response was that he wasn't going to comment on whether or not that was fair use, he wasn't going to stop me, but if I did do that, then he didn't want to know about it. In other w
    • Re: (Score:3, Insightful)

      by Shagg (99693)

      Slashdot in 2009:

      "Suing individual copyright infringers is evil!..."

      Obviously, you haven't been paying attention to what "Slashdot in 2009" has been saying.

    • by 91degrees (207121)
      Personally, I'd have no problem with the RIAA if the damages sought were in any way related to any plausible cost. $2.97 per song shared. Assume that each file represents a lost sale and get triple damages because it's wilful infringement.
      • Personally, I'd have no problem with the RIAA if the damages sought were in any way related to any plausible cost. $2.97 per song shared. Assume that each file represents a lost sale and get triple damages because it's wilful infringement.

        If you read up on all the procedural unfairness about the way they go about it, or all of the sloppiness in their methods, and their lack of concern for whether the defendant is innocent or not, I think you would have a "problem" -- even if the measure of damages they sought was rational instead of absurd.

    • Re: (Score:3, Insightful)

      how about: Suing Napster was stupid, they should have bought it.

      The problem is that it is technically infeasible to stop filesharing without at the very least being massively invasive of privacy. Compounding the problem is that our current laws don't really take into account the fact that we have this massive high-speed data network built for the express purpose of moving files around.

      So we're kind of screwed. On the one hand, our laws are draconian and out of date, and the organization supposedly protectin

      • This is a massive cultural shift.

        Exactly, this whole issue probably should have stopped being a legal issue a fair while ago. It should now be a social issue.

        I have no idea what should be done but rightly or wrongly when a sizable percentage of the population of a country is engaged in something that is (most likely) illegal it becomes a social issue. Prohibition doesn't work unless most of society accepts it.

        In all likelyhood there will have to be reform of the way copyrights are licensed so it's possible to have blanket licensing without

    • by dissy (172727)

      What does breaking a law have to do with this at all?

      Seeing as the RIAA presses charges against printers, the elderly with no computers, dead people, and people downloading creative commons music (OMG\OHNOZ!! FREE MUSIC! THIEF!11OnE), how can you honestly and blindly believe anything they claim anymore?

      Seeing as they have no problems suing all of those types of people when nothing the RIAA had copyrighted was involved, who is to say you aren't next? I for one sorta hope you are, so we can laugh.. Ok, no,

    • by arkhan_jg (618674) on Wednesday March 11, 2009 @06:31PM (#27158375)

      Yeah, that one slashdot guy is a total hypocrit!

      What they *should* have done is bought napster, kept it running as was, promoted the hell out of it, and made buckets of money with advertising and promotion. Imagine radio, but with the ad dollars going straight into the record labels pockets (with a small percentage going to the actual artists, as usual)

      But since we're on the suing individual uploaders path, lets examine that:

      1) laughable standards of evidence gathering. Infringement notices sent to network printers, or even people sharing their own work with a vaguely similar name to something else.

      2) Arguably illegal methods of evidence gathering, certainly unlicenced investigators

      3) abuse of due process to get default judgements before the defendent even knows they're being sued

      4) going after innocent people when it's clear they're innocent; grannies sued for the use of windows software on her mac

      5) going after people, no matter the method. Suing dead people, or after losing the case against the parent, refile against the under-age kids

      6) extortion; pay a fine now to our settlement centre, or face huge court costs regardless of your innocence

      7) blatant lies in court, with technical 'experts' not even considering alternative explanations (unsecured wireless etc), the misrepresentation of 'making available', etc etc

      8) going after alleged infringers for huge fines; civil cases are supposedly about making good the plaintiff's losses, instead they want judgements running to hundreds of thousands times their actual losses

      9) other abuses of the political and legal system, like root-kits, lobbying for the right to destroy alledged infringers computers remotely, or the three-strikes laws with no evidence required to cut people off the internet at will,
      ever increasing retroactive copyright terms, destroying the public domain.

      10) doing everything in their power to destroy or limit legitimate alternatives to their current system; hulu/boxee, raising the prices on itunes, DRM, massive rate hikes for online radio, the PRS and google music videos, the list goes on and on.

      11) still treating the actual artists like crap, screwing them out of even the small amounts they're contracted to pay for say, online radio

      The media cartels are actively damaging the public good, the artists, the legal and political systems with their witch-hunt. and for what?

      'home taping is killing music'; 'don't copy that floppy'; 'The VCR is to the movie industry what the Boston Strangler was to a woman alone'; 'you wouldn't steal a car'.

      Every time the copyright cartels have complained about new technology destroying their business model, and fighting it kicking and screaming for a few years, it turns round and becomes their new biggest way to make money. Good art is still hard to make; quality and convenience still have value. There's still money to be made, when the economy isn't in the crapper, anyway.

      • But since we're on the suing individual uploaders path, lets examine that: 1) laughable standards of evidence gathering. Infringement notices sent to network printers, or even people sharing their own work with a vaguely similar name to something else. 2) Arguably illegal methods of evidence gathering, certainly unlicenced investigators 3) abuse of due process to get default judgements before the defendent even knows they're being sued 4) going after innocent people when it's clear they're innocent; grannies sued for the use of windows software on her mac 5) going after people, no matter the method. Suing dead people, or after losing the case against the parent, refile against the under-age kids 6) extortion; pay a fine now to our settlement centre, or face huge court costs regardless of your innocence 7) blatant lies in court, with technical 'experts' not even considering alternative explanations (unsecured wireless etc), the misrepresentation of 'making available', etc etc 8) going after alleged infringers for huge fines; civil cases are supposedly about making good the plaintiff's losses, instead they want judgements running to hundreds of thousands times their actual losses 9) other abuses of the political and legal system, like root-kits, lobbying for the right to destroy alledged infringers computers remotely, or the three-strikes laws with no evidence required to cut people off the internet at will, ever increasing retroactive copyright terms, destroying the public domain. 10) doing everything in their power to destroy or limit legitimate alternatives to their current system; hulu/boxee, raising the prices on itunes, DRM, massive rate hikes for online radio, the PRS and google music videos, the list goes on and on. 11) still treating the actual artists like crap, screwing them out of even the small amounts they're contracted to pay for say, online radio

        arkhan, you have been doing your reading, haven't you? Nice.

  • I haven't posted to these things in a while. Karma be dammed.

    I've been on slashdot a while, I've seen the argument change from
    I can't buy music online, just sell it
    (they started selling it)
    I don't want music with DRM.
    (Legit complaint, now most music stores don't have DRM)

    Now whats the excuse for pirating?

    Doesn't anyone want musicians to earn something?

    Seriously in case nobody noticed they Represent the "RECORDING INDUSTRY". Not you, not me, not the artists. Remember though, they (the RIAA) pay the artist

    • by Gorshkov (932507)

      Doesn't anyone want musicians to earn something? Seriously in case nobody noticed they Represent the "RECORDING INDUSTRY". Not you, not me, not the artists. Remember though, they (the RIAA) pay the artists much more than those pirating (where last time I checked the artists gets 0). So in some ways the RIAA way is protecting themselves, they overstep, but seriously look what they're up against. As someone who knows 2 professional musicians, publicity is good but at some point you need to pay the bills. A

    • Doesn't anyone want musicians to earn something?

      Seriously in case nobody noticed they Represent the "RECORDING INDUSTRY". Not you, not me, not the artists.

      Musicians, their families, friends and fans (of the musicians, not their music) want them to earn something. These days it seems nobody else really cares, as they don't think they'll be earning enough to make a difference anyway.

      Remember though, they (the RIAA) pay the artists much more than those pirating (where last time I checked the artists gets 0). So in some ways the RIAA way is protecting themselves, they overstep, but seriously look what they're up against.

      I'm seriously looking: they appear to be up against people who want a vibrant culture without dealing with a bunch of middlemen, who have figured out that they have extremely low-cost, high-bandwidth access to cultural information via the internet. As a comparison: I could set up

    • by loutr (626763)

      they (the RIAA) pay the artists much more than those pirating (where last time I checked the artists gets 0)

      Yeah, go tell that to Cult of Luna, Isis, Dark Tranquillity, Soilwork, Opeth, Pain of Salvation, ... All of whom I discovered through P2P and ended up buying their albums/DVDs/Concert tickets/Tshirts. The majors would never have signed these kind of bands, and large retail chains hardly carry their albums, and when they do it's as €20 "imports".

      So I "steal" their music through P2P, if I end up listening to it often I'll buy the album on emusic, amazon, or order merchandise on the band website.

      I don't

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