NewYorkCountryLawyer writes "The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it. That is about to change. In Arista Records v. Does 1-16, a case targeting students at the Albany Campus of the State University of New York, the US Court of Appeals for the Second Circuit has decided to put things on hold while it takes a careful look at what transpired in the lower court. The way it came to this is that a few 'John Does' filed a broad-based challenge to a number of the RIAA's procedures, citing the defendant's constitutional rights, the insufficiency of the complaint, the lack of personal jurisdiction over the defendants, improper misjoinder of the defendants, and the RIAA's illegal procurement of its 'evidence' through the use of an unlicensed investigator, MediaSentry. The lower court judges gave short shrift to 'John Doe #3,' but he promptly filed an appeal, and asked for a stay of the subpoena and lower court proceedings during the pendency of the appeal. The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success. The Appeals Court disagreed and granted the motion, freezing the subpoena and putting the entire case on hold until the appeal is finally determined. As one commentator said, 'this news has been a long time coming, but is welcomed.'"
This is big. This will be the very first appellate scrutiny. By staying all lower court proceedings until the appeal is decided, the Court signalled that it's taking this very very seriously.
Is it possible for the RIAA to drop the case in order to stop these proceedings? I know that's a tactic they've used in the past when things didn't go their way. Hopefully, they won't be able to just say "oops, our bad" and stop any investigation into their tactics.
Is it possible for the RIAA to drop the case in order to stop these proceedings? I know that's a tactic they've used in the past when things didn't go their way. Hopefully, they won't be able to just say "oops, our bad" and stop any investigation into their tactics.
Yes it is possible for it to try that gambit. But it is also possible for the Court to retain jurisdiction over it.
Do you know if the 2nd Circuit has mp3s available of oral arguments? My quick google search didn't find any. I know other circuits have them available.
Not to my knowledge. You're just going to have come on down to the courthouse to see Mr. Altman in action.
Awesome. Do you know if the 2nd Circuit has mp3s available of oral arguments? My quick google search didn't find any. I know other circuits have them available.
No, but you can torrent them. Just be careful that the CSJA (Court System Judges of America) doesn't sue you for copyright infringement. I hear they've got a good legal team...
Nope. The people illegally copying copyrighted works are simply performing an illegal act. They are not asking for the assistance of the judicial system as they do so. (They just rely on it not reaching them.) That's not abuse: That's just ignoring the system.
The RIAA is actively using the assistance of the judicial system to further quasi-legal (at best) ends. That's abuse.
the RIAA have a nearly unlimited amount of money to throw at this issue.
Actually, they don't. These are not large companies in the scheme of things (unless you believe that Sony would throw it's core business over the side to protect its media properties), and the RIAA likely only has "millions" to work with. Grassroots opposition and donations from Slashdotters and others who know enough to care can make a real difference here.
The courts aren't vulnerable to being bought the way that politicians are, so it's not a simple matter of whoever writes the biggest check wins - the opposition to the RIAA just needs enough money to stay in the game, not to outspend the RIAA.
If the appellate court forces the RIAA to use the ordinary subpoena process instead of 'ex-parte' with joinder then will that not substantially alter the cost equation for the RIAA? Will they be forced to concentrate on fewer defendants and spend more effort going after them? Will they finally give up if they can only go after a limited number at a time who, even if convicted, cannot pay $250,000+ damages anyway? One cannot squeeze blood from turnips after all and if the primary goal of the RIAA is to file lots of cases spamigation style, then won't their primary purpose, which is to frighten large numbers of ordinary citizens on the cheap, be thwarted? I think that if the appellate court outcome renders their current strategy uneconomical then the RIAA will try to use their newfound clout with the Obama administration and the Democratic Congress to push through some very onerous new legislation and encourage the government, and therefore the tax payers, to shoulder the massively increased costs per defendant by having the Justice Department do their dirty work for them. I'm afraid that we're not out of the woods yet.
If the appellate court forces the RIAA to use the ordinary subpoena process instead of 'ex-parte' with joinder then will that not substantially alter the cost equation for the RIAA?
Yes, if they had been following the law, it would have cost them more. In fact, if they had been following the law, they wouldn't have even been able to file the lawsuits. But it is not about costing them money, or preventing them from bringing lawsuits to enforce their copyrights. The important thing is that the law be followed, and not bent to suit the whims of large corporations just because they can afford to hire a large number of unscrupulous lawyers.
More than one court has already noted this. In 2004 the US District Court for the Western District of Texas (Austin, TX) sua sponte (meaning without being asked to do so by either party) dismissed four separate cases totaling 254 defendants (Fonovisa vs Does 1-41, Atlantic vs Does 1-151, Elektra vs Does 1-11, UMG vs Does 1-51) and told the RIAA to refile against each defendant individually.
Moreover there are practical reasons supporting severing the claims against the defendants. The filing fees for the recent four cases totaled $600, whereas filing fees for 254 separate cases would have been $38,100. ..Because these four suits are in actuality 254 separate lawsuits, the Court sua sponte will dismiss without prejudice all but the first defendant in each case. ..In addition, Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience.
It appears that they RIAA has not followed that order in other cases since 2004. How much weight would this order have at the to Appeals court in this case? Some, little, jurisdiction issues? NYCL?
More than one court has already noted this. In 2004 the US District Court for the Western District of Texas (Austin, TX) sua sponte (meaning without being asked to do so by either party) dismissed four separate cases totaling 254 defendants (Fonovisa vs Does 1-41, Atlantic vs Does 1-151, Elektra vs Does 1-11, UMG vs Does 1-51) and told the RIAA to refile against each defendant individually.
Moreover there are practical reasons supporting severing the claims against the defendants. The filing fees for the recent four cases totaled $600, whereas filing fees for 254 separate cases would have been $38,100. ..Because these four suits are in actuality 254 separate lawsuits, the Court sua sponte will dismiss without prejudice all but the first defendant in each case. ..In addition, Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience.
It appears that they RIAA has not followed that order in other cases since 2004. How much weight would this order have at the to Appeals court in this case? Some, little, jurisdiction issues? NYCL?
Speaking from the point of view of an appellate court, it would tip us off that the plaintiffs' lawyers have been cavalier about following the law. And we might direct the lower court to order the RIAA to show cause why it was not in contempt of that order.
If the Second Circuit rules as I believe it will, this will mark the end of these abusive litigations by the RIAA.
After this, the RIAA will have to go to court only with proper, scientifically verifiable, legally obtained evidence showing that the person they're suing actually committed copyright infringement, and will have to have proper legal theories and pleadings.
At first I read "If the Second Amendment..." and I thought to myself, "What could possibly involve the RIAA and a right to bear arms... Oh. Oh... I see."
After 6 long years of madness, we are finally getting an appellate court to look at this. It is like rain falling on parched earth.
Last time I saw rain fall on parched earth, the rain just sat on top. Almost in disbelief that the rain had actually fallen, the earth rejected it. What water is absorbed does so slowly, leading to flooding with the same amount of water that would be easily absorbed had the earth not been so parched.
Seems to me that if one follows your analogy too closely, one might conclude that a single court case of sanity might precede several courts being resistant to the change, perhaps even angrily so, at least for a time.
Yeah, the quote was from Jon Newton over at p2pnet.net, who is having a server migration as we speak due to a problem that arose last night. He should be back online later today.
The problem with threatening people at random, is that eventually you make the mistake of threatening someone who has the resources to take you all the way to the supreme court. The RIAA seems to have a pattern of targeting those least able to defend themselves (college students, single moms, seniors) but it look like now they have a ready, willing, and able opponent who wont just roll over. Let's all collective summon up our best Nelson Muntz impressions: "Ha-ha!"
The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it.
Wait, I am missing something. In the US doesn't the prosecution have to have a defendent before they can start preceedings? They can investigate all they like but you can't prosecute without a defendent. What someone is going to knock on my door one day and say "BTW you have been found guilty of murder, your trial happened last month, your getting the chair"??
The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success.
I enjoyed this one... "Your honor, don't grant the appeal, they have no chance of winning. It would be silly to even honor their request. BTW, if you do what we say they WILL have no chance of winning and that makes us right, so you need to do as we say because we are right and you would not want to be on the side of wrong, because we are right."
I enjoyed this one... "Your honor, don't grant the appeal, they have no chance of winning. It would be silly to even honor their request. BTW, if you do what we say they WILL have no chance of winning and that makes us right, so you need to do as we say because we are right and you would not want to be on the side of wrong, because we are right."
This is basically the lawyer-to-english translation of the RIAA legal strategy.
1. "Prosecution" is a criminal term; these are civil cases, not criminal cases.
2. Under American law you are required to give notice, and an opportunity to be heard, PRIOR to the court granting your motion. This has not occurred in the RIAA cases. It has been an ongoing flagrant violation of American law.
2. Under American law you are required to give notice, and an opportunity to be heard, PRIOR to the court granting your motion. This has not occurred in the RIAA cases. It has been an ongoing flagrant violation of American law.
What does that mean for past cases that were not settled out of court? Do they get reheard? Do their verdicts get overturned?
It seems to me that if a court is found to have not followed the letter of the law, some action regarding those involved should be taken. It could be a slap on the wrist for the Judge presiding the case, perhaps the lawyers on either side.
but they were ALREADY heard in court and judged, that's how they got a judge to make the ISP give out names.
The game is to sue "jon doe" at 192.168.0.1 for $250k infringement in civil court, and because they can't find all the names, it's just between the lawyers and the judge! Then they take the summary judgment (which legally is very, very bad) to debtor's court to get your name and address, then call you up to settle. If you don't settle, then they wave the full judgment in front of you. I
by Anonymous Coward
on Friday April 24 2009, @10:41AM (#27702565)
I am constantly hearing on/. that mediasentry does not have an investigators license. I have to say I don't understand the process that well, but I figured it would be illegal to operate without a license. Shouldn't the cops or fbi be shutting down the company? I am glad to final hear that case evidence will final be forming for the RIAA's process. It will make future attempts by the RIAA much harder if the case is thrown out.
by Anonymous Coward
on Friday April 24 2009, @10:48AM (#27702669)
This is the first time an appeals court has examined whether or not having a court hearing without the presence of the defendant (ex parte preceding) is permissible given such little evidence, no real damages incurred by the plaintiff (insufficiency of complaint), whether or not the given court is even the right place to hear the complaint (lack of personal jurisdiction over the defendants), whether or not lumping all of these defendants together as a collective group is legitimate (improper misjoinder of the defendants), and whether or not it's complete BS that the RIAA is using a private group to invade individual's privacy to obtain information (illegal procurement of evidence).
In the Plaintiff's Motion to Quash, they state in footnote 1, "Defendants rely on the same arguments Mr. Beckerman has raised and lost in other cases." Strangely enough, they fail to cite the actual cases in which these arguments have been "raised and lost." Are there actual legal precedents in which Mr. Beckerman's arguments have been found lacking, or are the RIAA lawyers just blatantly lying?
In the Plaintiff's Motion to Quash, they state in footnote 1, "Defendants rely on the same arguments Mr. Beckerman has raised and lost in other cases." Strangely enough, they fail to cite the actual cases in which these arguments have been "raised and lost." Are there actual legal precedents in which Mr. Beckerman's arguments have been found lacking, or are the RIAA lawyers just blatantly lying?
There are some motions we have made which we have lost in the lower courts, however we prevailed on the portion of our motions which was directed to the "making available" theory, and most other lawyers have prevailed on the misjoinder issue.
In the appeals court, all of that is basically academic. The appeals court is here to give the district courts direction, not the other way around.
is finally going to start to treat the RIAA like the mobsters they mimic?
I really wish we could stop comparing the RIAA to the Mafia. It's an insult to the hard working men like Tony Soprano that strive to provide needed services like gambling, loan-sharking and prostitution to equate them with an organization that does nothing but sue college students and old people;)
On a more serious note, it's still a stupid comparison. If you wind up on Tony Soprano's bad side you are going to get beaten up or in the worst case scenario murdered. The worst case scenario from a RIAA lawsuit is that you wind up filing bankruptcy. Bankruptcy != murder, IMHO.
The worst case scenario from a RIAA lawsuit is that you wind up filing bankruptcy. Bankruptcy != murder, IMHO.
I disagree... lawsuits are the modern equivalent of physical violence, and taking all of someone's assets is the modern murder. Just because we now have a system that allows pillaging and plundering without bloodshed doesn't decrease the devastation that this causes to people and their families.
Lastly, people who lose it all often end it all, completing the 'murder'.
Is this a sign that the judicial system is finally going to start to treat the RIAA like the mobsters they mimic?
That I don't know. But it certainly is a sign that the Second Circuit judges consider the issues raised by John Doe #3 in the lower court to be serious and important.
(a) The pirates deserve to be slammed for STEALING (Yes I said it, because that's what it is!)!
(b) The pirates ALSO deserve all the due process and constitutional protection that the US has to offer--and the RIAA assiduously tries to ignore! You can't slam the thieves until the thieves get a FULL and FAIR day in court.
The Pirates deserve to be hammered, but only after every last one of their constitutional rights is respected!
Assuming we're still talking about digital piracy here, it is NOT stealing, it is infringing. The two have separate legal meanings that have to do with a scarce good being taken away from another person/entity. Copying music does not take that original away, ergo it cannot be stealing, it is infringing.
By "short shrift" I meant the Magistrate Judge and the District Judge paid scant attention, and just blew it off without paying careful consideration to the law or to the paucity of evidence.
"Misjoinder" is a legal term. In this case what it refers to is the fact that the RIAA sued 16 "John Does" in a single case, even though the federal rules clearly required them to bring 16 separate cases, and even though in 2004 they were ordered by two federal judges to cease and desist from that practice.
An unlicensed investigator is not allowed to investigate at all. You can ask a friend to check what your wife is doing when you're not at home, you can ask a licensed investigator, but if you hire an unlicensed investigator, he or she is breaking the law. In other words, the so-called "evidence" was found by someone who was breaking the law in doing so. That on its own is not the problem, if the evidence can be checked independently of how it was found. If an unlicensed investigator finds physical evidence, calls the police and the police checks the physical evidence, that's fine. But here, the evidence is the investigator saying "I downloaded this music from this computer". Since the investigator was already breaking the law, clearly anything he or she says cannot be trusted.
Hiring unlicensed investigators also means that the person suing cannot be trusted. In a civil court case, the judge goes by the weight of the evidence. If I can show that I am sued by a person who used illegal means to find evidence, that makes it more likely that the same person will be lying about other things as well.
How about you bring suit based on your friend reporting whatever. Should the judge basically say "your friend is not a license investigator, you thereby have no argument whatsoever"? I realize the weakness of the analogy, but shouldn't the validity of the argument be discussed rather than dismissed without examining?
There is a difference. My friend is not a licensed investigator, but he can have a look around things if I ask him to, as long as he is not investigating for hire. Perfectly legal. If he goes to court, the judge can ask him questions to find out whether he is a reliable witness, and his evidence would be treated accordingly. The unlicensed investigator, on the other hand, has already broken the law just by taking money for investigating when he didn't have a license. We don't even need to examine what he says in court, he can't be trusted anyway.
You also miss that this unlicensed, illegal investigators testimony is used to breach the privacy of presumably innocent people. You have to have a very good reason to do that. For example, if my friend, he is just an ordinary and presumably honest person, claims that he saw you stealing something, then this may be enough for the police to get a search warrant and then breach your privacy. If that unlicensed, illegal investigator claims that he saw you stealing a car, then this is most likely not enough for the police to get a search warrant. And what the RIAA wanted was the equivalent of a search warrant.
Unlicensed investigator? It's a civil trial, "illegal evidence" applies only to criminal cases, and by government agents, not by civil parties.
I think that you mean "impermissible evidence" not "illegal evidence". And yes, it does apply to civil parties. If Bob breaks into my house and steals the daily diary in which I lay out my plan to defame him, he still can't use it in court. First of all, if he shows up in court with it, he'll be arrested for theft or receiving stolen property. Secondly, allowing him
This is a civil, not criminal matter. Downloading a file containing copyrighted material is not the same as murder. Also, if the network is using DHCP and recording MAC addresses associated with each DHCP lease, and anybody on the network could have used that address, how exactly are they going to prove that it was you? Hint: If you are on Ethernet, use Ethereal to capture all traffic on a LAN segment, then set your MAC address to one of those captured and then use a different LAN segment. Voila -- the RIAA
This is big (Score:5, Insightful)
Re:This is big (Score:5, Interesting)
Is it possible for the RIAA to drop the case in order to stop these proceedings? I know that's a tactic they've used in the past when things didn't go their way. Hopefully, they won't be able to just say "oops, our bad" and stop any investigation into their tactics.
Parent
Re:This is big (Score:5, Informative)
Is it possible for the RIAA to drop the case in order to stop these proceedings? I know that's a tactic they've used in the past when things didn't go their way. Hopefully, they won't be able to just say "oops, our bad" and stop any investigation into their tactics.
Yes it is possible for it to try that gambit. But it is also possible for the Court to retain jurisdiction over it.
Parent
Re:This is big (Score:5, Informative)
Will there be a full appeal with oral arguments?
Yes!!!
Parent
Re:This is big (Score:5, Informative)
Do you know if the 2nd Circuit has mp3s available of oral arguments? My quick google search didn't find any. I know other circuits have them available.
Not to my knowledge. You're just going to have come on down to the courthouse to see Mr. Altman in action.
Parent
Re: (Score:3, Interesting)
Are we allowed to record those proceedings?
Re:This is big (Score:5, Funny)
Awesome. Do you know if the 2nd Circuit has mp3s available of oral arguments? My quick google search didn't find any. I know other circuits have them available.
No, but you can torrent them. Just be careful that the CSJA (Court System Judges of America) doesn't sue you for copyright infringement. I hear they've got a good legal team...
Parent
Re:This is big (Score:4, Insightful)
Nope. The people illegally copying copyrighted works are simply performing an illegal act. They are not asking for the assistance of the judicial system as they do so. (They just rely on it not reaching them.) That's not abuse: That's just ignoring the system.
The RIAA is actively using the assistance of the judicial system to further quasi-legal (at best) ends. That's abuse.
Parent
Re:This is big (Score:5, Insightful)
the RIAA have a nearly unlimited amount of money to throw at this issue.
Actually, they don't. These are not large companies in the scheme of things (unless you believe that Sony would throw it's core business over the side to protect its media properties), and the RIAA likely only has "millions" to work with. Grassroots opposition and donations from Slashdotters and others who know enough to care can make a real difference here.
The courts aren't vulnerable to being bought the way that politicians are, so it's not a simple matter of whoever writes the biggest check wins - the opposition to the RIAA just needs enough money to stay in the game, not to outspend the RIAA.
Parent
Re:This is big (Score:5, Interesting)
Parent
Re:This is big (Score:5, Informative)
If the appellate court forces the RIAA to use the ordinary subpoena process instead of 'ex-parte' with joinder then will that not substantially alter the cost equation for the RIAA?
Yes, if they had been following the law, it would have cost them more. In fact, if they had been following the law, they wouldn't have even been able to file the lawsuits. But it is not about costing them money, or preventing them from bringing lawsuits to enforce their copyrights. The important thing is that the law be followed, and not bent to suit the whims of large corporations just because they can afford to hire a large number of unscrupulous lawyers.
Parent
Re:This is big (Score:5, Informative)
More than one court has already noted this. In 2004 the US District Court for the Western District of Texas (Austin, TX) sua sponte (meaning without being asked to do so by either party) dismissed four separate cases totaling 254 defendants (Fonovisa vs Does 1-41, Atlantic vs Does 1-151, Elektra vs Does 1-11, UMG vs Does 1-51) and told the RIAA to refile against each defendant individually.
It appears that they RIAA has not followed that order in other cases since 2004. How much weight would this order have at the to Appeals court in this case? Some, little, jurisdiction issues? NYCL?
Parent
Re:This is big (Score:5, Informative)
More than one court has already noted this. In 2004 the US District Court for the Western District of Texas (Austin, TX) sua sponte (meaning without being asked to do so by either party) dismissed four separate cases totaling 254 defendants (Fonovisa vs Does 1-41, Atlantic vs Does 1-151, Elektra vs Does 1-11, UMG vs Does 1-51) and told the RIAA to refile against each defendant individually.
Moreover there are practical reasons supporting severing the claims against the defendants. The filing fees for the recent four cases totaled $600, whereas filing fees for 254 separate cases would have been $38,100. . .Because these four suits are in actuality 254 separate lawsuits, the Court sua sponte will dismiss without prejudice all but the first defendant in each case. . .In addition, Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience.
It appears that they RIAA has not followed that order in other cases since 2004. How much weight would this order have at the to Appeals court in this case? Some, little, jurisdiction issues? NYCL?
Speaking from the point of view of an appellate court, it would tip us off that the plaintiffs' lawyers have been cavalier about following the law. And we might direct the lower court to order the RIAA to show cause why it was not in contempt of that order.
Parent
Re: (Score:3, Insightful)
If their primary purpose is "to frighten large numbers of ordinary citizens", maybe Homeland Security should have jurisdiction here...
Re:This is big (Score:5, Insightful)
I don't think we'll ever be out of the woods.
If the Second Circuit rules as I believe it will, this will mark the end of these abusive litigations by the RIAA.
After this, the RIAA will have to go to court only with proper, scientifically verifiable, legally obtained evidence showing that the person they're suing actually committed copyright infringement, and will have to have proper legal theories and pleadings.
Parent
Re: (Score:3, Funny)
At first I read "If the Second Amendment ..." and I thought to myself, "What could possibly involve the RIAA and a right to bear arms... Oh. Oh... I see."
It's almost a pity it isn't true...
Re: (Score:3)
Re:This is big (Score:4, Informative)
Last time I saw rain fall on parched earth, the rain just sat on top. Almost in disbelief that the rain had actually fallen, the earth rejected it. What water is absorbed does so slowly, leading to flooding with the same amount of water that would be easily absorbed had the earth not been so parched.
Seems to me that if one follows your analogy too closely, one might conclude that a single court case of sanity might precede several courts being resistant to the change, perhaps even angrily so, at least for a time.
Parent
as one commentor said (Score:4, Funny)
404 not found
Re:as one commentor said (Score:4, Informative)
Parent
It was only a matter of time (Score:5, Insightful)
In other news (Score:3, Funny)
NO CHANCE!?!?! (Score:5, Interesting)
The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it.
Wait, I am missing something. In the US doesn't the prosecution have to have a defendent before they can start preceedings? They can investigate all they like but you can't prosecute without a defendent. What someone is going to knock on my door one day and say "BTW you have been found guilty of murder, your trial happened last month, your getting the chair"??
The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success.
I enjoyed this one... "Your honor, don't grant the appeal, they have no chance of winning. It would be silly to even honor their request. BTW, if you do what we say they WILL have no chance of winning and that makes us right, so you need to do as we say because we are right and you would not want to be on the side of wrong, because we are right."
Re: (Score:3, Funny)
I enjoyed this one... "Your honor, don't grant the appeal, they have no chance of winning. It would be silly to even honor their request. BTW, if you do what we say they WILL have no chance of winning and that makes us right, so you need to do as we say because we are right and you would not want to be on the side of wrong, because we are right."
This is basically the lawyer-to-english translation of the RIAA legal strategy.
Re:NO CHANCE!?!?! (Score:5, Informative)
2. Under American law you are required to give notice, and an opportunity to be heard, PRIOR to the court granting your motion. This has not occurred in the RIAA cases. It has been an ongoing flagrant violation of American law.
Parent
Re:NO CHANCE!?!?! (Score:5, Interesting)
2. Under American law you are required to give notice, and an opportunity to be heard, PRIOR to the court granting your motion. This has not occurred in the RIAA cases. It has been an ongoing flagrant violation of American law.
What does that mean for past cases that were not settled out of court? Do they get reheard? Do their verdicts get overturned?
It seems to me that if a court is found to have not followed the letter of the law, some action regarding those involved should be taken. It could be a slap on the wrist for the Judge presiding the case, perhaps the lawyers on either side.
Parent
Re: (Score:3, Informative)
but they were ALREADY heard in court and judged, that's how they got a judge to make the ISP give out names.
The game is to sue "jon doe" at 192.168.0.1 for $250k infringement in civil court, and because they can't find all the names, it's just between the lawyers and the judge! Then they take the summary judgment (which legally is very, very bad) to debtor's court to get your name and address, then call you up to settle. If you don't settle, then they wave the full judgment in front of you. I
t's legally mo
Re:NO CHANCE!?!?! (Score:5, Informative)
What verdicts? I don't recall the RIAA ever winning a single case. Well, one, but that verdict has already been set aside by the judge.
They've never won a contested case.
Parent
The RIAA Lawyer continued, stating (Score:5, Funny)
your appeal has no chance of success
make your time ...
HA HA HA HA
For great justice indeed.
Parent
Confused (Score:4, Interesting)
Interpretation Non-Lawyers (Score:3, Informative)
This is the first time an appeals court has examined whether or not having a court hearing without the presence of the defendant (ex parte preceding) is permissible given such little evidence, no real damages incurred by the plaintiff (insufficiency of complaint), whether or not the given court is even the right place to hear the complaint (lack of personal jurisdiction over the defendants), whether or not lumping all of these defendants together as a collective group is legitimate (improper misjoinder of the defendants), and whether or not it's complete BS that the RIAA is using a private group to invade individual's privacy to obtain information (illegal procurement of evidence).
That last description may be a little biased.
Plaintiff's footnote (Score:3, Insightful)
Re:Plaintiff's footnote (Score:5, Informative)
In the Plaintiff's Motion to Quash, they state in footnote 1, "Defendants rely on the same arguments Mr. Beckerman has raised and lost in other cases." Strangely enough, they fail to cite the actual cases in which these arguments have been "raised and lost." Are there actual legal precedents in which Mr. Beckerman's arguments have been found lacking, or are the RIAA lawyers just blatantly lying?
There are some motions we have made which we have lost in the lower courts, however we prevailed on the portion of our motions which was directed to the "making available" theory, and most other lawyers have prevailed on the misjoinder issue.
In the appeals court, all of that is basically academic. The appeals court is here to give the district courts direction, not the other way around.
Parent
Re:John Doe #3. (Score:5, Funny)
Sorry for the tyopes, I'm posting this from my balckbrery.
I tried to insert a beer tehre, but the olny thing taht hapepned is i got beer all ovre my laptpo.
Perhpas it would have bene better to use $BEVERAGE insteda fo giving bad instrutcions?
Parent
Re:John Doe #3. (Score:5, Funny)
>>Sorry for the tyopes, I'm posting this from my balckbrery.
Obama, don't you have country to run or something?
Parent
Re:It's about time (Score:5, Funny)
is finally going to start to treat the RIAA like the mobsters they mimic?
I really wish we could stop comparing the RIAA to the Mafia. It's an insult to the hard working men like Tony Soprano that strive to provide needed services like gambling, loan-sharking and prostitution to equate them with an organization that does nothing but sue college students and old people ;)
On a more serious note, it's still a stupid comparison. If you wind up on Tony Soprano's bad side you are going to get beaten up or in the worst case scenario murdered. The worst case scenario from a RIAA lawsuit is that you wind up filing bankruptcy. Bankruptcy != murder, IMHO.
Parent
Re:It's about time (Score:5, Insightful)
I disagree ... lawsuits are the modern equivalent of physical violence, and taking all of someone's assets is the modern murder. Just because we now have a system that allows pillaging and plundering without bloodshed doesn't decrease the devastation that this causes to people and their families.
Lastly, people who lose it all often end it all, completing the 'murder'.
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Re:It's about time (Score:5, Insightful)
Is this a sign that the judicial system is finally going to start to treat the RIAA like the mobsters they mimic?
That I don't know. But it certainly is a sign that the Second Circuit judges consider the issues raised by John Doe #3 in the lower court to be serious and important.
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Re: (Score:3, Insightful)
Re:Give those Pirates What they Deserve! (Score:5, Insightful)
(a) The pirates deserve to be slammed for STEALING (Yes I said it, because that's what it is!)!
(b) The pirates ALSO deserve all the due process and constitutional protection that the US has to offer--and the RIAA assiduously tries to ignore! You can't slam the thieves until the thieves get a FULL and FAIR day in court.
The Pirates deserve to be hammered, but only after every last one of their constitutional rights is respected!
Assuming we're still talking about digital piracy here, it is NOT stealing, it is infringing. The two have separate legal meanings that have to do with a scarce good being taken away from another person/entity. Copying music does not take that original away, ergo it cannot be stealing, it is infringing.
Parent
Re: (Score:3, Insightful)
Unauthorized copying is not stealing because nothing was taken away from the original owner.
Distorting the accusation is, by itself, violating due process and the constitutional protection the accused deserves.
Re: (Score:3, Informative)
It isn't stealing, as stealing means something was taken. In the case of downloading, it's copied not removed from the source.
Taking a CD from a shop is stealing and a criminal act. Downloading a CD is infringement of copyright and therefore a civil matter.
All your analogies involve removing a physical item and that constitutes theft.
Re:Let me be the first to ask... (Score:5, Informative)
"Misjoinder" is a legal term. In this case what it refers to is the fact that the RIAA sued 16 "John Does" in a single case, even though the federal rules clearly required them to bring 16 separate cases, and even though in 2004 they were ordered by two federal judges to cease and desist from that practice.
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Iterrogative pronouns (Score:4, Insightful)
nsuficiency of the complaint? It seems to me it states clearly what/when.
How about "who?"
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Re:Isn't RIAA's request reasonable? (Score:5, Funny)
I'm no fan of the MAFIAA at all... However...
Troll alert.
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Re:Isn't RIAA's request reasonable? (Score:4, Insightful)
Unlicensed investigator?
An unlicensed investigator is not allowed to investigate at all. You can ask a friend to check what your wife is doing when you're not at home, you can ask a licensed investigator, but if you hire an unlicensed investigator, he or she is breaking the law. In other words, the so-called "evidence" was found by someone who was breaking the law in doing so. That on its own is not the problem, if the evidence can be checked independently of how it was found. If an unlicensed investigator finds physical evidence, calls the police and the police checks the physical evidence, that's fine. But here, the evidence is the investigator saying "I downloaded this music from this computer". Since the investigator was already breaking the law, clearly anything he or she says cannot be trusted.
Hiring unlicensed investigators also means that the person suing cannot be trusted. In a civil court case, the judge goes by the weight of the evidence. If I can show that I am sued by a person who used illegal means to find evidence, that makes it more likely that the same person will be lying about other things as well.
Parent
Re:Isn't RIAA's request reasonable? (Score:4, Informative)
How about you bring suit based on your friend reporting whatever. Should the judge basically say "your friend is not a license investigator, you thereby have no argument whatsoever"? I realize the weakness of the analogy, but shouldn't the validity of the argument be discussed rather than dismissed without examining?
There is a difference. My friend is not a licensed investigator, but he can have a look around things if I ask him to, as long as he is not investigating for hire. Perfectly legal. If he goes to court, the judge can ask him questions to find out whether he is a reliable witness, and his evidence would be treated accordingly. The unlicensed investigator, on the other hand, has already broken the law just by taking money for investigating when he didn't have a license. We don't even need to examine what he says in court, he can't be trusted anyway.
You also miss that this unlicensed, illegal investigators testimony is used to breach the privacy of presumably innocent people. You have to have a very good reason to do that. For example, if my friend, he is just an ordinary and presumably honest person, claims that he saw you stealing something, then this may be enough for the police to get a search warrant and then breach your privacy. If that unlicensed, illegal investigator claims that he saw you stealing a car, then this is most likely not enough for the police to get a search warrant. And what the RIAA wanted was the equivalent of a search warrant.
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Re: (Score:3, Informative)
I think that you mean "impermissible evidence" not "illegal evidence". And yes, it does apply to civil parties. If Bob breaks into my house and steals the daily diary in which I lay out my plan to defame him, he still can't use it in court. First of all, if he shows up in court with it, he'll be arrested for theft or receiving stolen property. Secondly, allowing him
Re: (Score:3, Insightful)
IANAL, etc. and I'm no fan of the MAFIAA at all... However...
I just read the lower court judge's ruling in denying the motion to quash and I frankly don't see a problem with the judge's reasoning.
You don't see the problem because you are not a lawyer.
Re: (Score:3, Interesting)