Appeals Court Stays RIAA Subpoena

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."

This could be big

[NewYorkCountryLawyer]

This could be the first time we will have appellate review of the RIAA's wacky, un-American, "ex parte", "John Doe" procedures.

Re:This could be big

[NewYorkCountryLawyer]

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.

Re:This could be big

[NewYorkCountryLawyer]

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

[NewYorkCountryLawyer]

icebike, my advice is not to waste your breath on that AC troll.

Innaccurate

[Locke2005]

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.

Re:This could be big

[Jason Levine]

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.

Re:This could be big

[NewYorkCountryLawyer]

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.