Record Company Collusion a Defense to RIAA Case? 275
NewYorkCountryLawyer writes "Is collusion by the record companies a defense to an RIAA case? We're about to find out, because the RIAA has made a motion to strike the affirmative defense of Marie Lindor, who alleged that "the plaintiffs, who are competitors, are a cartel acting collusively in violation of the antitrust laws and of public policy, by tying their copyrights to each other, collusively litigating and settling all cases together, and by entering into an unlawful agreement among themselves to prosecute and to dispose of all cases in accordance with a uniform agreement, and through common lawyers, thus overreaching the bounds and scope of whatever copyrights they might have" in UMG v. Lindor."
Legal collusion (Score:3, Insightful)
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Re:Legal collusion (Score:5, Insightful)
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I somehow doubt the courts see illegal file-sharing as "trade." If they were suing rival record companies for certain reasons, yes, but I don't see that prosecuting copyright cases jointly as a restraint on trade.
Parent is using a very narrow definition of trade. The court might recognize that the core mission of the RIAA is to restrain conditions that affect the open marketplace, and therefore restrain trade.
I see a parallel with railroads of the 1890s that selectively enforced "no trespassing" where roads crossed railroad tracks, to force farmers to ship produce by rail rather than more cheaply by wagon. In some parts of the US, private railroad companies were able to dictate very profitable shipping charges b
Here is why it *IS* economic collusion: (Score:5, Insightful)
If real competition between labels existed, then individual labels would reduce their own prices to make official purchases as attractive as file sharing, and they would provide vast band sites to attract the purchaser, and broaden their music spectrum away from the incredibly narrow current crap, and entice fans into buying the physical albums and accessories later for profit, as fans like to do. (Often much later in life, when they have more money.) In a nutshell, they would compete on product.
If you stand back from this whole scene and try to see it through the spectacles of a free market and competition analyst, you'll find none of those elements present in their music marketting. RIAA labels simply do not respond to drop in sales by reducing their prices or raising their quality and music coverage, like indies do.
It's often described as a cartel, but some cartels are relatively shallow and defensive, whereas this one effectively has the entirety of public media in its grasp and the ears/wallets of politicians too, and has a strategy based on offence and intimidation. It is about as malevolant and anti-competitive as you can get without breaking kneecaps. And while they don't break kneecaps, they certainly have no compunction about destroying lives economically, based on legal theories which they lobbied to create.
Their slimy lawyers will probably slither out from under a charge of anti-competitive economic collusion because the legal system is driven by technicalities rather than substance. But the RIAA labels are certainly guilty as sin of it. They lost any concept of competition between them long ago.
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It would be interesting to see a breakdown of how copyright infringement impacts each label...in fact, if someone had the resources to put that together it might convince some of these labels that it is actually giving them a competitive edge, exactly as you suggest. I have a vague impression that indie labels actually receive a net benefit from unlicensed copyin
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broaden their music spectrum away from the incredibly narrow current crap
Come now, we all know that *broadening* their offering stands very little chance of making them *more* money. All American entertainment industries are built on formulas, because apparently, formulas are what people (in this culture?) want. I'm certainly not defending it, but that's the way the situation appears to be. And to be clear, I'm not saying this can't change. I believe that, if for some reason, all the labels and media outlets did start
Re:Here is why it *IS* economic collusion: (Score:4, Interesting)
I predict that they will not be slithering out of this one. Their brief is entirely frivolous, and will not make a positive impression on Judge Trager.
And by the way, they do destroy lives, and more than just economically. Many of the people victimized in this onslaught are ill equipped to deal with the stress and anxiety the RIAA's lawyers have caused them.
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We all saw it coming. (Score:3, Interesting)
Still, I wanna shake this woman and her lawyers' hands for this.
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The defence of "this (law/ridiculously high penalty) only exists because of the illegal activities of the plaintiff and others" sounds a very reasonable one to me.
Re:We all saw it coming. (Score:5, Insightful)
As far as I remember, each of the music piracy lawsuits have been brought by individual record labels, and not the RIAA. It seems that the claim here is that the labels are unfairly colluding under the RIAA umbrella, each pursuing suits in the same manner and using the same attorneys, but at least nominally acting as separate entities.
Re:We all saw it coming. (Score:5, Insightful)
Perhaps an alternate track(sic) might be to high light the publisher involved in each civil suit as well as the greedy self serving worthless artists whose content is being cited for those civil cases.
Should not an effort be made to pursue those artists to see how they feel about their music being used to terrorise children and bankrupt their parents, I wonder what share do the so called artists get of the uncontested civil suits ;).
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I don't so I'll add an example of why you are correct.
Metallica.
I was a huge Metallica fan back in the day, bought all their good albums 2, 3, in the case of their first as many as 6 times.
They stopped putting good albums out when I was in the 4th grade. (black album being good is debatable)
When I heard that they were going nuts about people downloading their music, I wondered to myself why would I pay for their music yet again to have it on yet another medium.
I've already bou
Metallica vs downloads (Score:3, Insightful)
[bought tape and CD] And now they want me to buy it again, just so I can play it on my computer.
No, I don't think they ever said "please don't rip the CD to MP3 using readily available tools". Downloading is not really and more convenient than home ripping, and home ripping can only be done by people who own the music. (Well, anyone who has borrowed a copy can too, but that's a side issue.)
Downloading's a bit different in that you don't need to have the original to download an MP3. The vast majority of
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Not having the original does not equate to not having purchased the original and not having the legal right to that purchase. There are many things that can cause one to not be in possession of the original which one purchased.
Furthermore, you may be in possession of an original that is not suitable for ripping for any number of reasons
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I will grant you that the vast majority of downloaders don't have the originals. But I will not grant you lost profits. There are several reasons why people download illegally and very few of them would actually mean a lost sale.
1) Lots of times people are just trying out new music to see how well it goes. There are seldom ways to liste
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The artist who made my favourite album just queried its publisher on my behalf, and was informed that no, it would NEVER be released on CD. This makes no one any money, so where's the loss if someone rips the thing and we who own the LP download it? (In fact, the artist sent me cop
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IMO, the Black album was fine and Load had some good stuff, but it got a bit average after that. By St. Anger, they still had some good music, but Hetfield's vocals were just so self-conscious and forced. Same happened with Pantera with Reinventing the Steel IMO.
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The problem is, the artists have no say over how their music is used. They can cry all they want, but at the end of the day their music belongs to the record label, and what they think doesn't count.
The artists asking the RIAA to stop would be like a soldier asking their country to not go to war. You don't pay out on the soldiers when you don't like that a country is fighting a way - you get angry at the people that made the decision to go to war.
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How many major publishers are there? Hundreds? The author gets to pick and choose, and gains bargaining power.
I believe there are five major record labels. And they are in bed together. If you want to make a deal with a major record label you are almost certainly going to deal on their terms.
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Finland, Greece, Germany, Switzerland, and Israel are the first few that spring to mind without any thought. I'm sure there are lots others.
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In Norway, all males are required to spend either 1 or 2 years in the military and
then remain in the reserves until sometime in their 40's.
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o, the individual labels bring the suits because it is the individual labels that own the copyrights being violated. The RIAA has no legal standing to sue someone for violating BMG's copyrights -- and in a way, that's the argument being made here, that the RIAA is an organization that is acting more like an agent of collusion than as a trade organization.
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the individual labels bring the suits because it is the individual labels that own the copyrights being violated. The RIAA has no legal standing to sue someone for violating BMG's copyrights -- and in a way, that's the argument being made here, that the RIAA is an organization that is acting more like an agent of collusion than as a trade organization.
That is correct.
The individual record companies in UMG v. Lindor [blogspot.com] are UMG Recordings, Inc., Warner Bros. Records Inc., Arista Records LLC, Interscope Records, Motown Record Company, L.P., and SONY BMG Music Entertainment. But the lawyer for the plaintiffs takes his instructions from the RIAA, and the settlement authority comes from the RIAA, and if one settles with them the settlement payment is payable to "RIAA Client Trust Account".
It may perform some functions of a trade association in other contexts;
Re:We all saw it coming. (Score:4, Interesting)
It just isn't being said often enough: if you are sharing copyrighted files using standard networks (bittorrent, emule, etc), you are playing with fire. Sorry, but everything else is wishful thinking.
Plenty of competitors face common civil opponents (Score:4, Insightful)
Re:Plenty of competitors face common civil opponen (Score:5, Informative)
But this isn't really like a Class action lawsuit or trade union. This is more like all the grocery stores in a town deciding one day that too many people are stealing milk. So they create a fictional association to protect themselves that goes into each home with or without permission to see if there is milk and if the milk was properly paid for. And then if it wasn't, they determine what kind of container the milk is in, the store who sold it (or should have sold it) sues that person for an obscenely large amount of money and offers to settle for a smaller large amount of money. But both sums of money are more then the value lost by the actions.
Currently, something like that is probably against the law. The defense being offered using colluding isn't going to say "i'm not guilty", it is going to say the evidence was collected illegally by companies acting in an illegal manor against US law for profit above the amount of actual damages and it cannot be entered into this trial. So then UMG says this person distributed our copyright covered materials and here is the evidence which is all gone because of the collusion, so you go, They have no evidence, can we just dismiss this and get on with our lives, The judge says sounds like a good idea and bangs the gavel.
Now this doesn't really touch on their right to sue or anything the accused might have done, it touches on the entering computers in a questionable manor and then attempting to extort funds from people, some of which didn't even have a computer at the time they were accused. So the question is, did the record labels and RIAA collude in a way that was against the law (if it harms one person/consumer, it probably is) and if so, can the evidence they gather when working in that manner be admissible to the cases that they brought about? Generally evidence is evidence except on occasions when civil rights were violated or it was obtained illegally by a party that would benefit.
Re:Plenty of competitors face common civil opponen (Score:5, Insightful)
All I'm really trying to say is that there's no theft involved. It's just copyright infringement.
Re:Plenty of competitors face common civil opponen (Score:4, Interesting)
Your magic, free Pepsi machine is knowingly interfering with the undisputed property rights of Pepsi. Pepsico holds the exclusive rights to make Pepsi. Coca-Cola holds the exclusive rights to make Coke. You do not have the right to give away more Coke or Pepsi than you purchased. If you bought a bottle and magically made more, congratulations, but you can't give away or sell even a single drop more than that one bottle of soda.
The rest is true about the RIAA and their greed and general worthlessness. But you're skipping the part where you consider that what you're offering for free isn't yours to offer. You can make something similar (as long as it's not derivative) and give that away for free. You can record a cover of a song and give that away without worrying about the RIAA (you may need permission from other entities). You can't give away something that has commercial value and is owned by someone else.
Re:Plenty of competitors face common civil opponen (Score:5, Insightful)
I, personally, drink Regal Cola. It's made locally (Australia) and costs about 40% less than Coca Cola. It tastes closer to Coca Cola than it does to Pepsi Cola, and I've found it has a crisp taste that I haven't found in other cola varieties.
If it was found that Regal Cola had similar ingredients to Coca Cola or Pepsi Cola, the law would provide no "protection" to any of these players. As such, I have the choice which product I want to buy. I can choose which I prefer because they are essentially the same. This can't be said for music.
Mod Parent 'Informative' or 'Insightful' (Score:2)
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Well it really depends. If you've gone out and figured it out on your own, you're right, Pepsi wouldn't likely win an injunction against you. However, you still couldn't label it as the Pepsi formula, that'd be a trademark violation.
Also, it's pretty unlikely you'd get it exactly right, even if you performed all kinds of sophisticated analytical chemistry - chemistry isn't currently accura
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I think I'll call it Duck Cola. Is the name taken? If not, I claim copyright.
Offtopic: Question about Regal cola (Score:2)
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Of course the "how" of how the milk was made or got there compounds the outrage. It isn't like it's not important. But it becomes less important if the way they found out about it turns out to be against the law. Especially when it is a cause to get their evidence on what you had and what you did with it to be thrown out of
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Actually, this is more like all of the musicians in a town - who all book the same venue to do performances - getting tired of selling 100 tickets to their show, but seeing 1000 people in the venue they rented out to host the performance. And then following up when it becomes clear that people are putting information up on a public network that explains how to get into the show through the building'
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Now a trade association can actually be a separate entity and operate within the confines of the laws. It doesn't appear that the RIAA and the record labels are doing so. So I believe that the separation to stop the companies from colluding isn't real.
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Phew! I'm safe! I live in a dodgy bungalow....
History of Collective Rights Organizations (Score:3, Interesting)
Does prior ruling validate her claim? (Score:3, Interesting)
I'm not going to do any legwork at this late of night, but past victories for the RIAA, depending on the specifics, might come back and bite them on the ass.
One can only hope...
Mod parent 'Interesting'! (Score:2)
While I Agree.. (Score:5, Insightful)
While on the surface, it might be argued that the RIAA is nothing more than an aforementioned trade group (something that is both legal and desirable in many cases), tying ones copyrights into a collective pool is a bit more of a sticking issue.
The companies represented by the RIAA represent 99% of the major American labels (the only reason I do not say 100% is there may be one or two, but the majority are). Upon tying their copyrights together, they effectively stifle competition. How so?
Well, to use a (likely flawed) analogy, imagine if Microsoft and Apple decided to pool all of their resources and patents and copyrights. Now suppose a third party (for profit) company tried to get into the market. Apple may not have prosecuted initially since they did not have access to the patent/copyright pool, and probably wouldn't see this interloper as a direct competitor to be worried about. MS, however, would. So they open up the full force of the patent/copyright pool of both companies and cherry pick the most grievous ones. The company is financially sunk. This couldn't happen without the help of Apple's patents/copyrights too.
Now, I know patents != copyrights, but in a way, it is very similar. The RIAA has access to every song in every catalogue to every major artist. This allows them, by default, to prosecute across borders. It isn't BMG, Sony, and Dreamworks each launching separate suits, it is one company that can attack with a full frontal assault. Essentially, the power has been centralized, which gives too much power to the RIAA, and makes it impossible to resist against them reliably.
Essentially, while we are dealing with intellectual property (ugh, I hate that term) theft, and some of these people may well be guilty, the spirit of the law that was enacted was meant to deter those from doing this, not to crush the offenders into oblivion. And I think that last point is quite important, and also something that many have lost sight of. The laws were created as a deterrent, and as a method of punishment, much like the stocks were of yore. The laws were NOT created (in this country) as a method to crush the individual offenders into the ground (at least, save execution... and that is another issue altogether).
My 2c
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Like a cross-licensing agreement? It happens in lots of industries.
Semiconductor manufacturing for a start. Even if a would be new entrant had the huge amount of money needed to build a fab, they would still have to pay a huge amount of money on licensing patents. The established companies in the industry have cross licensed their patent portfolios so they do not have to pay this, so they would have a lasting
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And let's imagine for a moment that they called this industry group "The Business Software Alliance", or BSA for short, and that it had a US web site at: http://w3.bsa.org/usa [bsa.org],
but unlike the RIAA, it operated at an international level. If
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What would it cost to file a patent on this business procedure? Streamlining IP law enforcement would in itself save society trillions o
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The whole point of a law enforcement agency is to catch the bad guys. The whole point of a neighbourhood watch is to catch the bad guys. The whole point of an industry group?
I'll give you a hand: to protect their industry and make a metric arse-load of money in the process, finding
Re:While I Agree.. (Score:5, Insightful)
Is it? I thought that if all petrol stations in a country decided that they band together and *all* of them slap a 500% margin over the petrol you buy would not be OK. It would definitely protect *their* interests, wouldn't it?
Copyright and patent law was created in the interest of advancing arts and science, *not* in the interest of guaranteeing corporate profit margins.
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If a party lawfully has in its possession a piece of information, it may share that piece of information (subject to invasion of privacy torts, which would be difficult to find applicable in such a circumstance).
While I am venturing off on a tangent, I would argue that this is exactly what we should be afraid of. It should involve various and sundry privacy torts, because there is the possibility (as the RIAA has so kindly demonstrated to us) that they can and do use extra-legal tactics to find this information out. If the information was gathered in an extra-legal way (through malware, spyware, outright invasion by way of cracking of the user's system), why shouldn't that information be regarded as subject to pr
Defense or not, it is definitely True (Score:3, Insightful)
A Super-Trade-Group? (Score:5, Insightful)
Imagine if you will the beginning of the free market's existence. Individual companies and groups barter for goods and services. If someone steps on the toes of another, the person who is wronged takes that person to court, and the transgressor is perhaps found guilty, irrespective of anything else he may or may not have done or is doing at the present. Fine.
Fast forward to the present. Now, instead if you step on the toes of one company (because so few major companies are one person alone), an industry group comes in with a warrant, and searches your computer. Not only do they find infringing material for the original plaintiff, but they also find about 500 other songs belonging to other members of their trade group. Well, they simply have the warrant expanded to search the rest of your network and proceed to sue your pants off for those 500 songs that they found. This means that the process has become streamlined in favour of the companies. This is not good.
Now, go a little further into the future. Not only are there trade groups, but Super-Trade-Groups. Perhaps ones dedicated to the entire entertainment industry (MPAA-RIAA-Shakespearean Theatre Company AA-ad nauseum AA) or perhaps there is just one big-super group. Think of it as a catch-all group that includes the MPAA-RIAA-Microsoft-Apple-Book Publishers-Knitting Pattern Companies-Recipe authors-TV broadcasters-GE-GM-IBM-and any other acronym in any industry).
Everyone has broken the law in some way or another. Imagine though, if a super-group could walk into your life, find all of those transgressions, and can now say: pay up (in installments of course, and there might even be an interest-only version of the payment schedule). This would mean a guaranteed source of income, and not only that, but it would also assure them that they could treat you like a criminal at any point.
If such behavior became common, it might even pose as a catalyst to lower the requirements for a warrant -- to the point where the super group can simply have a catchall carte blanche that they can use as they see fit to protect America from pirates and terroristas...
Welcome to 2084, Orwell's sequel.
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Shouldn't that be "clucking fowl"?
What's missing here? (Score:2)
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It took 6 major multinational corporations to join forces against a home health aide living in Brooklyn.
What possible legal justification can there be for that?
Cue the /. RIGHTS commentary. (Score:3, Insightful)
I've purchased x number of CDs for an average of z dollars (a price which was illegally inflated by an average of 200%).
I've downloaded y number of albums which were...free.
If xz < yz/2 then I suppose I ought to be immediately dumped into the furnaces of Mordor.
If xz > yz/2 then I am a moral individual and the RIAA can suck it.
It's their RIGHT:
Hey, it's their content. They can dictate what should be done with it. This is America. Constitution. Blah blah blah blah blah if you don't like it, gyet out.
They'll never understand what is RIGHT:
They don't see how badly they've sullied the reputation of every artist they represent, the entire process of making money from playing music, and the beloved image of the American rock star. They'll just keep on beating a dead horse, because they're old, and stupid, and ugly, and they have small wieners, and they don't really care about musicians (let alone music), and did I mention they have small wieners?
We are RIGHT:
Hey, it's our hot music. We do what we want. We do what we want. We fly by the seat of our pants and eat copyright law for breakfast. You aint bad. We bad. We download full length films the day before they come out and watch shitty screening cams that forever ruin the experience of the film, but at least we don't give the MAN our money that we made by selling downloaded music at flee markets. Yeah, look at us. We do what we want.
The desire to profit isn't RIGHT:
Artists can't expect to make money from making music, and shouldn't expect to. They should want to make music because they love it. Yada yada yada...love is all you need.....yada yada yada....the marketplace corrupts.
Newer models are RIGHT:
Just accept that CDs are promotional items to drive other types of sales, and stop suing grandmas. You can't stop progress, and you can't come up with DRM that some pimply teenager won't hack within a few weeks.
The RIGHT thing here is to do what you feel is RIGHT, no matter what the legal RIGHT:
Your right to point and click and use your ears *feels* as legitimate as (or more than) theirs to enforce their right to restrict *every* listening of a song to some type of commercial transaction, yet legally it isn't. Think about the artist. Think about the label. Think about the music. Think about your bank account. When you love an artist enough, you know you'll spend money on them. This is the compromise most of us make. This is the compromise the industry has to get used to.
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If it can't be done without technology, it can't be a right. I can't make a perfect copy of an obscure dance CD without tech, so it can't be my right.
If we repealed all copyright tomorrow, we couldn't make it retroactive as people in the past were given a contract by the law for x years. Holywood production would cease -- why spend x million on a film which will be available for free on the net after the first public showing? Why spend x thousand recording an album when it might only sell one copy (to MrUp
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Dangerous precedent (Score:2)
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The FSF is not in the exclusive paid service of a group of for-profit corporations. That's the real point of the motion - this is collusion by a group of corporations. The FSF would likely be classified as a watch-dog group, like the ACLU. The distinction is one which is difficult to codify into law succinctly, but has clear moral differences. That's one of the key problems with laws - they attempt to codify behaviors into a language which is unable to accurately depict intent.
Thanks, Overzeetop.
There's no comparison at all.
Here we have 4 multinational corporations who control 80% of an industry. They have pooled all of their copyrights and joined forces in a blood pact not to reach a separate settlement with any defendant. Their settlements are nonnegotiable. It is their way, or the highway.
It is textbook collusion, which has one purpose and one purpose only -- to take the value of their copyrights, which are each lawful monopolies, and leverage and combine them into a gre
missing the point (Score:2, Insightful)
I'm tired of these defenses. (Score:5, Funny)
Anonymous Coward Sig 2.0:
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Madonna has the best voice and content creation ability.
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each individual record company does...
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Anonymous Coward Sig 2.0:
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Madonna is the only talented artist.
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I bet if you started using their logo they would disagree...
I'm sure they also have a patent on BS lawsuits.
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What the hell am i talking about? Everyone does that these days.
Re:I'm tired of these defenses. (Score:5, Funny)
You mean the swastika?
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The have repeatedly asked students to quit school [techdirt.com]. Apparently the RIAA can't wait untill they get a job to pay them. The RIAA needs money so badly, that they think it's worth destroying kids hope of a real life.
They have also sued 12 year olds [foxnews.com], and even dead grandmothers [afterdawn.com] aren't safe...
Re:I'm tired of these defenses. (Score:5, Interesting)
Not necessarily. I would borrow CD's from friends or trading with them, or I would gather 5-10 friends and buy one record with them and so on.
Some people don't realize there are millions of people who really have other priorities in life then to buy a CD for 30 dollars when they earn 300 dollars a week or even less and the rent is 200 dollars and the various monthly fees are 60 dollars. But they would buy at least one CD a month if the CD was 9.99 dollars.
Some people don't believe in buying records when the music on those records is freely available on FM radios, they would copy it anyway from the Internet, but these people would gladly go to a concert if it was possible. For example, I would NOT pay 40 dollars for a Yanni CD but I would pay 100-150 dollars without blinking for a concert ticket if Yanni or Mike Oldfield concert in my country. These are concerts where you "feel" the music, if you're at a live concert.
Furthermore, I believe that downloading music often increases sales, because I can't remember how often I'd recommended bands and albums to other people, which later on have purchased tracks or albums from iTunes. I may not be buying, but I'm referring people.
Check out the forums of Digitally Imported for example, and see what people are saying at various tracks, you'll see lots of comments like "Wow! Where can I buy this mix?" Would you consider that by listening to that mix on DI.fm, that artist lost a sale? He won hundreds just by gaining popularity and getting his work known.
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Re:I'm tired of these defenses. (Score:5, Interesting)
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Re:A defense? (Score:5, Funny)
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Re:A defense? (Score:5, Funny)
Re:A defense? (Score:5, Funny)
Re:A defense? (Score:4, Funny)
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Re:That's great.. no wait... (Score:4, Informative)
First result of a Google search for "motion to strike." It would have been faster to look it up than to post a complaint.
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http://www.google.com/search?q=%22motion%20to%20s
First result.
That's one of the more normal terms... (Score:2)
I'm surprised you didn't ask about affirmative defenses, instead. If you're wondering, they're a def
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As in, "strike something out." Erase it, overwrite it, remove it. To an English speaker, the verbiage makes sense. Who are we to guess at what aspects of our language are clear or unclear to foreign speakers? If we over-explain, we end up patronizing you. If we under-explain, we get complaints. What do you want?
No Buzznacking (Score:2)
It means that Slashdot's legal vocabulary questions have really gone downhill since the CPHack Appeal [slashdot.org]
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That's American law, though. It's similar here in Australia where we use a greatly oversized boot instead. Curiously, the term is still 'to strike', not 'to boot'.
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The Cricket Bat -- a more refined tool from a nobler time.
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The federal minimum charge might be a little high for a megafarm, but for a dairy producer with, say, 400 cows (a large family farm), the price ends up acting as a price cap forcing prices very near the minimum that a farmer can feed, maintain, and milk the herd. My uncle was a dairy farmer for around 25 years, successfully growing h
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There likely are duly noted delegated authority and limited power of attorney statements in play, however. I think the defendant's approach has merit, but it remains to be seen how the bench will interpr