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Judge Refuses To Sign RIAA 'Ex Parte' Order 239

Posted by Soulskill from the wearing-out-their-legal-welcome dept.
NewYorkCountryLawyer writes "The RIAA just can't get enough of going after University of Maine students, but it appears that the judges in Portland, Maine, may be getting wise to the industry's lawyers' antics. RIAA counsel submitted yet another ex parte discovery order to the Court ('ex parte' meaning 'without notice'), in BMG v. Does 1-11, but this time the judge refused to sign, pointing out that there is no emergency since there is no evidence that records are about to be destroyed [PDF]. This is the same judge who has previously suggested the imposition of Rule 11 sanctions against the RIAA lawyers, accusing them of gamesmanship."
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Judge Refuses To Sign RIAA 'Ex Parte' Order More

Judge Refuses To Sign RIAA 'Ex Parte' Order

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  • These guys... (Score:5, Interesting)

    by that_itch_kid ( 1155313 ) on Thursday May 29, 2008 @09:10PM (#23595255)
    The RIAA are getting stupider by the minute. It's high time they learned that people aren't going to take this shit sitting down for much longer.

    The more the courts resist their moves, the more people will stand up for their rights.

    • Re:These guys... (Score:5, Insightful)

      by Anarke_Incarnate ( 733529 ) on Thursday May 29, 2008 @09:16PM (#23595285)
      Sadly, their tactics have been working.

      Even if you are innocent or think you have a good chance of being found not guilty, the time it will take out of your life, possibly having your good name tarnished and hurting your job or chances of income, the negativity on your credit to have a judgment against you, etc is enough to have people settle for a few thousand dollars they should not have had to pay.

      • Re: (Score:2, Insightful)

        by aliquis ( 678370 )
        And how many people are actually innocent?

        I don't see the issue in that a few innocent people may get caught, I see the issue in that we are all criminals ;D
        (And I think it's to late for them to fix it, all crimes of copyright infrigement should just be statute-barrred.)

        • Re:These guys... (Score:5, Insightful)

          by Darkness404 ( 1287218 ) on Thursday May 29, 2008 @09:58PM (#23595579)

          And how many people are actually innocent?


          But our justice system was founded on the principles of you are innocent until proven guilty, with a RIAA case, it is the exact opposite, you need to prove beyond a reasonable doubt that you are innocent, rather then the RIAA prove you are guilty. And some of the people have gotten fines put on them for very little solid evidence and all the evidence wasn't even enough to convict them (so someone had a few songs in their shared folders, but they can't even prove they are or were being shared!).

          • Re:These guys... (Score:5, Informative)

            by Anonymous Coward on Thursday May 29, 2008 @11:57PM (#23596281)
            My guess is you're not an American. These are civil cases, not criminal. In that case, you aren't innocent until proven guilty, and there is no concept of "reasonable doubt". They just have to prove that its more likely that you did it than that you didn't. No one has been fined. A settlement is not a fine. Fines go to the government, settlements to the other party. You aren't convicted in civil court either. Either stop pretending to be an American, or take a civics class.

            • Re:These guys... (Score:5, Informative)

              by Kierthos ( 225954 ) on Friday May 30, 2008 @03:25AM (#23597059) Homepage
              How is this flamebait? It's correct. Yeah, he could have been a little more friendly in his tone, but honestly, we can't have a /. story on an RIAA case without some nimrod getting criminal and civil cases confused.

              In civil cases, the burden of guilt is based on preponderance of evidence. In other words, if it is more likely then not that you committed the act in question, that is all that is required in a civil trial. This, BTW, is how O.J. Simpson was found liable for the deaths of Nicole Brown and Ron Goldman... although he was found not guilty in the criminal trial, the same evidence was used to find him liable for their deaths because the burden of proof was that much lighter.

            • Re: (Score:3, Informative)

              by bigstrat2003 ( 1058574 ) *
              The standard of proof is different, but I was definitely under the impression that you were still innocent until proven guilty. Otherwise it'd be a madhouse in which I could sue people and automatically win most of the time (without even making any arguments), just because they didn't have the wherewithal to defend themselves properly.

          • so someone had a few songs in their shared folders, but they can't even prove they are or were being shared!).

            1) Of course they were being shared. Whether anyone took them up on their offer to share, and whether the person understood what they were doing... those are issues that are uncertain. But they were accessable for other people to download.

            Reasonable doubt doesn't factor in at all. It is a civil case, the standard of proof is "more likely than not". Which means you will need to explain why tho

            • Re:These guys... (Score:5, Insightful)

              by tlhIngan ( 30335 ) <slashdot&worf,net> on Friday May 30, 2008 @12:44AM (#23596487)

              1) Of course they were being shared. Whether anyone took them up on their offer to share, and whether the person understood what they were doing... those are issues that are uncertain. But they were accessable for other people to download.

              Reasonable doubt doesn't factor in at all. It is a civil case, the standard of proof is "more likely than not". Which means you will need to explain why those files were publically shared.


              But is the offer to share the same thing as sharing?

              To overuse a car analogy, if you buy a car that can go >110MPH (basically the highest legal speed limit), are you guilty of speeding? And should the DMV just fine every driver for speeding anyhow, since I'm sure 99% of all drivers during their lives have exceeded the speed limit (even by 1MPH... or inadvertently, going downhill, for instance)?

              Just because you could, doesn't mean you did. More likely than not, the car in your driveway can exceed the speed limit. Why don't you explain why you have it, since you can be speeding?
              • The point is the legal statutes of "making available" are absurd, and should be struck down by the Courts as unconstitutional. Is the record store guilty and liable for making copyrighted album cover art "available" in their for sale store because a customer could possibly take a photograph of that cover art with a digital camera? How about book stores putting books for sale on shelves that can be browsed *in full* by potential customers? The mind and memory are also "recording devices".

                A million different

                • Re:These guys... (Score:4, Insightful)

                  by gnasher719 ( 869701 ) on Friday May 30, 2008 @07:24AM (#23598053)

                  The point is the legal statutes of "making available" are absurd, and should be struck down by the Courts as unconstitutional.
                  You are wrong. The law in this case is absolutely fine and dandy and very clear. However, the law about "making available" doesn't say what the RIAA wants the courts to believe it says. One high profile case is going back to the courts right now because the judge figured out that while a defendant (likely) made songs available for downloads, that wasn't "making available for further distribution" in the sense of copyright law. Because the judge was hoodwinked by the RIAA, he gave the wrong instructions to the jury, which therefore came to the wrong conclusions, so it has to go back to the court.

                  If you contacted a supermarket chain and offered them copies of Britney Spears' latest album so they can distribute them all over the country, that would be "making available for further distribution" in the sense of copyright law and would be illegal even if the supermarket chain doesn't accept your offer. If you offer the same album to ten thousand private citizens to download and keep, that is not "making available for further distribution" in the sense of the copyright law, even though the RIAA claims it is. As long as nobody accepts your offer and downloads the album, nothing illegal has happened.

                  • Re:These guys... (Score:4, Informative)

                    by NewYorkCountryLawyer ( 912032 ) * <ray@NOsPAm.beckermanlegal.com> on Friday May 30, 2008 @09:22AM (#23599261) Homepage Journal

                    The law in this case is absolutely fine and dandy and very clear. However, the law about "making available" doesn't say what the RIAA wants the courts to believe it says. One high profile case is going back to the courts right now because the judge figured out that while a defendant (likely) made songs available for downloads, that wasn't "making available for further distribution" in the sense of copyright law. Because the judge was hoodwinked by the RIAA, he gave the wrong instructions to the jury, which therefore came to the wrong conclusions, so it has to go back to the court.
                    Thanks, gnasher, well put.

                    Actually there is no copyright infringement claim that can be based on even 'offering to distribute' as in the example you posited. The courts have clearly held that the distribution right does not come into play unless you actually disseminate the copies. E.g., one of the leading cases involved putting it in a catalogue, which was clearly an "offer to distribute". But since no items had actually been sold from the offending catalogue, the Court held that no case for infringement of the distribution right existed.

              • Re: (Score:2)

                by sorak ( 246725 )
                A better analogy would be "if you get in a car and press the pedal to the floor, but the car runs out of gas before it gets above the speed limit, can you be arrested for 'attempted speeding'?"

            • Re: (Score:2, Informative)

              by KGIII ( 973947 )
              Spelling might be funny/wrong and the term might not be entirely correct but I'm pretty sure that it is "preponderance." Civil vs. criminal matters at least. My limited studies of the law were ages ago and are muddied by idealism and beer.

            • Which means you will need to explain why those files were publically shared.

              Only if the court accepts the premise that 'making available' is a violation of the copyright holder's distribution rights, which is still a moot point.

              Oh, and it's "publicly", not "publically". The latter is a bastard variant only used by ignnoramuses.

        • Re:These guys... (Score:5, Insightful)

          by fishbowl ( 7759 ) on Thursday May 29, 2008 @10:23PM (#23595759)
          I'm waiting for the RIAA to claim infringement against something they don't actually represent the copyright (or mechanical license) to. One thing Copyright Law does a pretty good job of, is protecting you (the copyright holder) from other parties claiming your work as your own (and using that claim as a basis for litigation).
          I keep hoping they screw this up, and claim to represent some independent songwriter who will then press criminal charges.

        • All of them! (Score:3, Insightful)

          by Anonymous Coward
          > And how many people are actually innocent?

          Everyone is, until proven guilty.

          (Though you have a great point about criminalizing large segments of the population for profit.)

        • Re:These guys... (Score:5, Insightful)

          by Solandri ( 704621 ) on Friday May 30, 2008 @12:42AM (#23596479)

          And how many people are actually innocent?

          I don't see the issue in that a few innocent people may get caught, I see the issue in that we are all criminals ;D
          (And I think it's to late for them to fix it, all crimes of copyright infrigement should just be statute-barrred.)

          Just to complete the thought: When a law makes the majority of the population criminal (or infringers), it's time to rethink the law.

          In China they have laws which everyone has to break to conduct business. The government uses these laws to arrest / imprison / execute whomever they feel like for whatever reason they feel like - if everyone is guilty of breaking the law, "innocent until proven guilty" becomes a moot point. Local officials use them to extort bribes from the populace. There's enormous potential for abuse of such laws.

          • Re: (Score:2)

            by Zoxed ( 676559 )
            > Just to complete the thought: When a law makes the majority of the population criminal (or infringers), it's time to rethink the law.

            I definitely disagree ! For example; as a vulnerable road user (a cyclist) I observe that the vast majority of drivers break the law when driving, the most common being speeding (i.e. a criminal offense, not a civil one like copyright infringement). Should the speed limits be abolished ? I would say no.

            • Re: (Score:2, Informative)

              by Anonymous Coward

              No, but in many cases, speeds limits are absurdly low. At least in my country (Netherlands). I've seen speed limits drop by an average of 20km/h, up to 50km/h at some points over the past 10 years. And many of those limits are just plain silly, I know how several in my neighborhood came about, and it had little to do with safety or cyclists.

              Cyclists are vulnerable road users, yes, but they are also the worst traffic offenders. They run red lights, don't use proper lightning at night, swerve all over the ro

        • Conscientious Objector (Score:5, Insightful)

          by Anonymous Coward on Friday May 30, 2008 @01:05AM (#23596561)
          Sorry, but I am a conscientious objector. I do not share music, I refuse to buy any more CDs, instead, I rely on the massive compilation I collected in the 80s and 90s, and in the event that I just HAVE to have the latest Fall Out Boy single, I buy it on iTunes since I have the disposable income. But generally, if it's not on the radio, I refuse to continue to fund the economic terrorists that represent the RIAA and I pretty much eliminate "pop music" from my life as an objection to the RIAAs business practice. In effect, I'm a well-to-do Gen-Xer who votes with my wallet.

          I take issue with this heap o' crap because the RIAA is trying to criminalize MY behaviour. They fight against fair use and try to prevent me from transferring my CD collection to my iPod. They fight to criminalize my sharing" or music between my own media devices... the two tivos and 5 computers I own and share within my home.

          I abhor any and all court cases that imply that all potential "infringers" are guilty until proven innocent, as this represents a stereotypical assumption that the "criminals" are young kids who "rip off" the establishment through their deeds.

          This straw man argument actually DENIES my ability to vote with my wallet, as the courts presume that criminal violations have undermined the RIAAs business, when in fact, my boycott of their goods contributes to their market failure. However, my "voting with my wallet" is misrepresented as a "crime against the RIAA" that has cost them loss of revenue.

          Criminalization of a "loss of revenue" is an undue burden on our society and must not be tolerated.

        • Re: (Score:2)

          by crosbie ( 446285 )
          There is 'innocent of infringement', and then there is 'innocent' as in having done no wrong (irrespective of what the law says).

          Check out the law on copyright, and you'll find that is fundamentally unethical.

          How is Copyright Fundamentally Unethical? [digitalproductions.co.uk]

          We are all innocent when it comes to sharing or building upon published works - with or without their copyright holders' permission.

          "I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art"
          • Your link doesn't explain in the slightest how copyright is supposedly fundamentally unethical. Got a better link? I'm rather curious to hear what the argument is, as I suspect it doesn't hold water.

            • Re: (Score:2)

              by crosbie ( 446285 )
              It is a shibbolethic answer to the question, i.e. there is no explanation.

              It simply suggests that you won't need an explanation as to why copyright is unethical unless you need an explanation as to why slavery is unethical.

              I've touched on the ethics of copyright and patent umpteen times on my blog, but here's a post that goes into some background on natural rights that might shed a tad more light:
              http://www.digitalproductions.co.uk/index.php?id=112 [digitalproductions.co.uk]

              • Re: (Score:3, Insightful)

                by bigstrat2003 ( 1058574 ) *
                Interesting post, but early on, you touch on a point that explains precisely why copyright is necessary and proper:

                to collaborate or trade (honourable exchange of labour or possessions)

                is listed as being a natural right. This is precisely why copyright is necessary. It is because works such as, say, a poem, are so easily copied. The people have no inherent right to force the author to make his work available to them: it is available to them under the terms he chooses to provide. If the author makes it available under the terms "Pay me $2 for this poem", that is obviously his

        • Re: (Score:2)

          by sm62704 ( 957197 )
          And how many people are actually innocent?

          From Unforgiven [wikipedia.org]

          Hooker: "You just kicked the shit out of an innocent man."
          Little Bill: "Yeah? Innocent of what?"

          I sincerely hope you're a foreigner and not a US citizen. If you're a foreigner you're ignorant, if you're American you're a troll. Americans are innocent until proven guilty in a court of law. It's one of the founding principles of our nation.

          I don't see the issue in that a few innocent people may get caught, I see the issue in that we are all criminals ;D

      • Re: (Score:2)

        by Gerzel ( 240421 )
        The problem with settling is that it puts a bad mark on someone's record without them ever being proven guilty.

        It still tarnishes a person's reputation and opens them up to possibly harder prosecution should the RIAA decide they are doing it again.

    • Re:These guys... (Score:5, Insightful)

      by masdog ( 794316 ) <{masdog} {at} {gmail.com}> on Thursday May 29, 2008 @09:20PM (#23595311)

      The RIAA are getting stupider by the minute. It's high time they learned that people aren't going to take this shit sitting down for much longer. The more the courts resist their moves, the more people will stand up for their rights.

      The RIAA and their lawyers have one thing that most defendants don't have - bags of money to fund these suits. The goal isn't to win - those who fight the charges have shown that the RIAA doesn't have much of a leg to stand on - but to drag the cases to a settlement where they get some money.

      I don't think they would give this up - even with a string of defeats, they will eventually find a friendly judge or get enough laws passed in their favor to protect their antiquated business model.

      • Losers should pay (Score:5, Interesting)

        by hedwards ( 940851 ) on Thursday May 29, 2008 @10:35PM (#23595855)
        This is really why there needs to be some sort of change to the way that trials are conducted. It's really an embarrassment that one side so often outspends the other by such a huge amount. And it's considered to still be a fair trial.

        Seems to me moving loser pays system would make it a lot more difficult to abuse the system. Or potentially require the loser to pay the winner the cost of the winner's counsel plus the cost of the losers council as well. In cases where the loser had insufficient counsel it wouldn't add a whole lot but in cases where the loser brought in a lot of high priced attorneys to try and pull a fast one, they'd get a much large penalty. Of course require the winner to demonstrate that the size of the bill is reasonable for a case of that type.

        I think that the Judge refusing to sign the order was perfectly reasonable considering both the spurious nature of the suits as well as the other nefarious dealings of their unlicensed "investigator" mediasentry. http://yro.slashdot.org/article.pl?sid=08/05/29/2026213 [slashdot.org]

        What I do wonder is if this goes where it looks like it's going to something resembling an organized crime prosecution, would any or all of the settlements still be valid? Or would a conviction for extortion and misrepresenting the facts be grounds for declaring the settlements invalid?

        • Re:Losers should pay (Score:5, Insightful)

          by Tubal-Cain ( 1289912 ) on Thursday May 29, 2008 @11:26PM (#23596161) Journal
          More specifically, if the prosecutor loses they should have to pay. If the defendant loses, lawyer fees are paid by their respective parties. Wouldn't want the RIAA to have all their cases handed to them for free.

        • Re:Losers should pay (Score:5, Insightful)

          by ZorbaTHut ( 126196 ) on Friday May 30, 2008 @01:27AM (#23596649) Homepage
          What I've always liked:

          Loser pays the winner the cost of the loser's lawyer fees. (As well as their own lawyer fees, obviously.)

          If the winner had to fork over ten million to win, and the loser paid ten thousand, then the winner gets ten thousand of it back. If the loser paid ten million and still lost, and the winner could only afford ten thousand, congrats, mr. winner now has $9,990,000.

          I'm sure it's horribly flawed in some way. But it's also beautifully poetic.
          • This should only happen if the loser is the plaintiff. Otherwise, it's unfair if the defendant loses a suit, and also has to pay the legal fees on top of that... they had no control over whether that suit was brought against them.

          • Re:Losers should pay (Score:5, Insightful)

            by ultranova ( 717540 ) on Friday May 30, 2008 @11:08AM (#23600811)

            I'm sure it's horribly flawed in some way. But it's also beautifully poetic.

            Any system where you have to have money in order to sue or defend yourself in court is horribly flawed, because it exchanges the rule of law for plutocracy. I'm not sure how to fix it, thought; if you simply have the state pay all legal fees, it makes rising nuisance suits even easier than they are now, and might even make making them for hire a new profession.

            • Re: (Score:3, Informative)

              by NewYorkCountryLawyer ( 912032 ) *

              I'm sure it's horribly flawed in some way. But it's also beautifully poetic.

              Any system where you have to have money in order to sue or defend yourself in court is horribly flawed, because it exchanges the rule of law for plutocracy. I'm not sure how to fix it, thought; if you simply have the state pay all legal fees, it makes rising nuisance suits even easier than they are now, and might even make making them for hire a new profession.

              Well I know a couple of judges who've started down the road of fixing it [blogspot.com] for the RIAA cases [blogspot.com].

      • don't think they would give this up - even with a string of defeats, they will eventually find a friendly judge or get enough laws passed in their favor to protect their antiquated business model.


        Perhaps, but the judge's decision is an interesting one. Instead of punishing the **AA themselves, he suggested punishing their lawyers. A chain is only as strong as its weakest link.

      • Re: (Score:2, Informative)

        by KGIII ( 973947 )
        I am from (sort of - it is my "home base") Maine. I am also fairly well educated according to the vast amounts of debt I've paid off. I can say that I know that the RIAA is going to run out of favor here, in this State, shortly and have already begun to wear out the welcome mat. We tend to just laugh about the suits and even our news/media makes light of them while encouraging students to just stand up. Mind you, I personally think that there's no reason to have something you don't own in your possession AN

    • he RIAA are getting stupider by the minute. It's high time they learned that people aren't going to take this shit sitting down for much longer.
      You're right. For the most part, they take it bent over with wide grins plastered on their faces. Of course, if you had a specific action in mind, I'd be interested in hearing about it.

    • Re: (Score:2, Insightful)

      by Bman21212 ( 1067680 )
      I would love to see people stand up, but years of seeing the **AAs, have made me pessimistic. Most will probably not stand up for their rights, because it is easier and less risky to just pay the $3k of protection fees.

    • Re:These guys... (Score:5, Interesting)

      by Ethidium ( 105493 ) <`moc.oohay' `ta' `ket_aihc'> on Thursday May 29, 2008 @10:38PM (#23595869) Homepage Journal

      The more the courts resist their moves, the more people will stand up for their rights.
      Don't pull out your revolutionary songbook quite yet. Keep in mind that it wouldn't be news if judges were resisting this shit left and right. It's news because this judge did something uncommon.
    • I'm just hopeful that for the RIAA, the party's over.

  • Ex parte (Score:4, Informative)

    by rstultz ( 146201 ) on Thursday May 29, 2008 @09:20PM (#23595315) Homepage
    'Ex parte' does not really mean without notice. It refers to a legal proceeding where all involved parties are not present. Usually when one side is trying to get the judge to do something without the other party having a chance to argue their side. This is 'ex parte' because it's a John Doe defendant. And I'm pretty sure that it being 'ex parte' has nothing to do with this story, but something thought it sounded nice when they submitted the story. 'Ex parte' does sound nice.

    • NYCL is a lawyer who handles RIAA cases! (Score:5, Informative)

      by Anonymous Coward on Thursday May 29, 2008 @09:29PM (#23595375)
      > 'Ex parte' does not really mean without notice.

      Normally, no. In RIAA 'expedited discovery' cases, however, it _does_! They grab the discovery against twenty or so people and withdraw from the case immediately afterwards.

      If you knew anything about our submitter, you'd know that he's a lawyer and that when the RIAA runs things, they go for "expedited" motions so that things really do happen without reasonable notice for the parties in question.

      While you're correct about what ex parte (usually) means, in RIAA cases, I will defer to NYCL. He is, after all, an attorney who has been directly involved in cases opposing them and who has a nice FAQ on his website. It tells you exactly how they run these cases and why they habitually withdraw from the case once they get discovery in the ex parte suit and send people to their "settlement center" after that, making the entire process something most parties only find out about after the fact.

      So no, he didn't include the words "ex parte" just because he thought they sounded cool.

      - I Don't Believe in Imaginary Property [eff.org]

      • > 'Ex parte' does not really mean without notice.
        Normally, no. In RIAA 'expedited discovery' cases, however, it _does_! They grab the discovery against twenty or so people and withdraw from the case immediately afterwards. If you knew anything about our submitter, you'd know that he's a lawyer and that when the RIAA runs things, they go for "expedited" motions so that things really do happen without reasonable notice for the parties in question. While you're correct about what ex parte (usually) means, in RIAA cases, I will defer to NYCL. He is, after all, an attorney who has been directly involved in cases opposing them and who has a nice FAQ on his website. It tells you exactly how they run these cases and why they habitually withdraw from the case once they get discovery in the ex parte suit and send people to their "settlement center" after that, making the entire process something most parties only find out about after the fact. So no, he didn't include the words "ex parte" just because he thought they sounded cool.
        Thank you. No I don't do anything to sound cool. I don't have it in me to sound cool.

        In American litigation (which I've been working in since 1974), the term "ex parte" means "without notice".

    • Re:Ex parte (Score:5, Informative)

      by Ungrounded Lightning ( 62228 ) on Thursday May 29, 2008 @09:39PM (#23595469) Journal
      I suspect NewYorkCountryLawyer has some clue about what he's talking about.

      Also: According to the (current) page on it in wikipedia:

      In Australian, Canadian, U.K., and U.S. legal doctrines, ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. It is also used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party.

      So it's "ex parte", not because the Does aren't present, but because the RIAA is asking the judge to rule without consulting the Does and giving them a chance to file a counterargument. If they are given a chance to file a response (even if they're not physically present - especially at the same time as the RIAA representatives which could lead to them being identified even if they should not be) then it's no longer "ex parte" according to the US usage.

      • Re: (Score:3, Informative)

        by NewYorkCountryLawyer ( 912032 ) *

        I suspect NewYorkCountryLawyer has some clue about what he's talking about. Also: According to the (current) page on it in wikipedia: In Australian, Canadian, U.K., and U.S. legal doctrines, ex parte means a legal proceeding brought by one person in the absence of and without representation or notification of other parties. It is also used more loosely to refer to improper unilateral contacts with a court, arbitrator or represented party without notice to the other party or counsel for that party. So it's "ex parte", not because the Does aren't present, but because the RIAA is asking the judge to rule without consulting the Does and giving them a chance to file a counterargument. If they are given a chance to file a response (even if they're not physically present - especially at the same time as the RIAA representatives which could lead to them being identified even if they should not be) then it's no longer "ex parte" according to the US usage.

        Thank you, Underground. That is exactly right. And the RIAA lawyers try to do everything ex parte. They don't want the judge to get confused by hearing the truth.

        • And the RIAA lawyers try to do everything ex parte. They don't want the judge to get confused by hearing the truth.

          What are the rules about when ex parte orders can be issued? It seems like something ripe for abuse.

          • Re:Ex parte (Score:5, Informative)

            by NewYorkCountryLawyer ( 912032 ) * <ray@NOsPAm.beckermanlegal.com> on Thursday May 29, 2008 @11:11PM (#23596087) Homepage Journal

            What are the rules about when ex parte orders can be issued?
            The rule is, what they are doing is totally illegal. In federal practice ex parte relief is only granted as a last resort. In these cases the RIAA lies through its teeth to get the order, falsely saying that the ISP or University will destroy the records if they are given notice of the application. It amazes me that there is any judge in the U.S. who would sign such an order. I think you'll be seeing more and more judges refusing, as news of the RIAA's lies spreads.

            In the University of Oregon, the RIAA conveniently "forgot" to tell the judge [blogspot.com] that the University had told the RIAA that it had gathered and was preserving the records.

            In the University of New Mexico case [blogspot.com], the judge had this to say about the RIAA's "ex parte" request:

            Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule.


            In the College of William & Mary case [blogspot.com] the judge just rejected the application outright.

    • Re:Ex parte (Score:4, Informative)

      by NewYorkCountryLawyer ( 912032 ) * <ray@NOsPAm.beckermanlegal.com> on Thursday May 29, 2008 @10:36PM (#23595857) Homepage Journal
      Ex parte means without notice.

    • Re:Ex parte (Score:5, Informative)

      by nickrout ( 686054 ) on Thursday May 29, 2008 @10:58PM (#23596003)

      'Ex parte' does not really mean without notice.
      Yes it does. It means without notice to the other part[y|ies]. If someone is about to do me a legal wrong (e.g. undermine my house by excavating under my land) and the situation is urgent I may be able to obtain ex parte an injunction to stop them. Becasue the bulldozer is humming outside my house I can get the order urgently. The quid pro quo for getting it without the bulldozer man getting an opportunity to show his side of the case is that I must be scrupulously honest and up front to the judge and provide all relevant evidence, whether it helps me or the other side, and my lawyer must refer the court to any cases or laws which may be against me as well as those that may be for me. ex parte orders are reserved for urgent situations, which is why the judge here said there was no need for an ex parte discovery order as there was no evidence that records were about to be destroyed. Oh and IAAL.

  • Hey CmdrTaco (Score:5, Interesting)

    by Chabil Ha' ( 875116 ) on Thursday May 29, 2008 @09:24PM (#23595343)
    How 'bout getting an interview with these guys? I think it would be the perfect opportunity for the **AA to put up or shut up with the community on their long term goals.

    No need for ad hominem attacks, et all, but an opportunity to speak on an issue that is mostly one sided here on /.

    • No need for ad hominem attacks, et all,

      This is the **AA's bogus MediaDefender/extortion campaign we're talking about. Ad hominems are not just expected, they're mandatory.

      They'd club baby seals if they thought it would make people cough up easy "settlements." I can see their next campaign now - "Every time you share a file, a baby seal gets it!"

      They're the gestapho for the little Hitler-wanna-be gang that thinks they're above the law, and continually lobbies the government to spend YOUR tax money to

  • BUZZWORD alert: SYnergy: (Score:3)

    by rts008 ( 812749 ) on Thursday May 29, 2008 @09:34PM (#23595427) Journal
    How will this affect this case?
    http://yro.slashdot.org/article.pl?sid=08/05/29/2026213http://yro.slashdot.org/article.pl?sid=08/05/29/2026213v [slashdot.org]

    It seems that this industry cannot help but 'shoot itself in the face' from here on out.
    I'm not a christian, but it reminds me of the 'tower of babel'.

    How stupid can these people be?....nevermind, they have the US Gov't. backing them.
    It seems we have a steep slope to climb to get back to our founder's (US Constitution) ideology on the subject.

    I hope that the afore mentioned case (under FBI investigation) will make some waves.

    If you can answer to this. fine. If not, I understand.

    Keep 'Rocking' on', you are doing much good.

  • Good news but still... (Score:5, Insightful)

    by pravuil ( 975319 ) on Thursday May 29, 2008 @09:53PM (#23595549) Homepage Journal
    With all that has been going on with these cases, there has been tons of money thrown down the drain through court costs and layers fees. Most of it on the side of the recording industry. They haven't made any dent in which accounts for anything. I understand going after legitimate pirates who attempt to profit from shared distribution. People like that need to be jailed. With the industries failure to create a viable model of distribution within the digital age, I start to ask are they spending all their time on lawsuits while hoping the internet is a passing fad? I think it's time they wake up to reality and take a good look at what is already available and accept it. Acceptance can be a bitch sometimes but what else can you do sometimes, right? RIAA, please just move on. This is getting embarrassing.

    • RIAA, please just move on. This is getting embarrassing.
      Unfortunately, these people aren't capable of embarrassment. They are shameless.

    • Re: (Score:3, Insightful)

      by DerangedAlchemist ( 995856 )
      I think you have the goal wrong. The entire purpose is to take dropping distribution costs and turn them into increased profits rather than lower the price of the product. They just want to use ligation to milk this as long as possible.
      Mp3s are obviously inferior to cds. A cd contains artwork, lyrics an uncompressed version of the music that can easily be made into mp3s of any quality desired. Besides that, an mp3 is obviously much cheaper to distribute. Expecting consumers to pay a similar price is o

    • Re: (Score:2)

      by dirk ( 87083 )
      How do you figure they failed to create a "viable model of distribution in the digital age"? Here I was thinking that iTunes and Amazon were fine distribution models for people to use (granted the RIAA didn't invent them, but they are certainly using them). They have a distribution model where people can pay a small amount and receive a digital copy of a song they can keep forever, where exactly has this distribution model gone wrong?

      The problem isn't the distribution model, it's the fact people feel they
  • I thought there just had to be reason to believe the evidence was about to be destroyed. In cases of digital copyright infringement I would think this is always the case. Maybe they just need to find a more reasonable judge.

    • Re: (Score:2)

      by hughk ( 248126 )
      Not when the data is in the hands of a third party - in this case the university. Remember the case is against the students, not the third-party.

  • suddenoutbreakofpithytags (Score:3, Funny)

    by qualidafial ( 967876 ) on Thursday May 29, 2008 @10:15PM (#23595691) Homepage
    Remember: A kitten dies every time a story is tagged "suddenoutbreakofcommonsense."

    Please tag responsibly.

    • A kitten dies every time a story is tagged "suddenoutbreakofcommonsense."
      Don't announce this; the RIAA will be tagging everything "suddenoutbreakofcommonsense" now.

  • Internet in Maine? (Score:5, Funny)

    by russlar ( 1122455 ) on Thursday May 29, 2008 @10:16PM (#23595705)
    I didn't know TCP-over-moose technology had matured!

    • Re:Internet in Maine? (Score:5, Funny)

      by The Evil Couch ( 621105 ) on Thursday May 29, 2008 @10:25PM (#23595769) Homepage
      Are you kidding? They've had the moose infrastructure in place for well over a century. It was just a matter of getting the boundary moose routers IEEE 802 compliant. See why adherence to standards is important?

    • Re:Internet in Maine? (Score:4, Interesting)

      by troutman ( 26963 ) on Friday May 30, 2008 @01:26AM (#23596637) Homepage
      Actually, Maine has a extremely advanced telecom infrastructure, especially given the low population density and sheer size of the state. In part, this is due to the legacy of having some very large call centers located in Maine in the past (MBNA, now Bank of America) and one of the more CLEC friendly public utilities commissions. And historically, Maine had more independent, private telephone companies than any place else in the US. Maine was the first state in the country to have every single public school and library Internet connected (56k or T1), starting in 1996, which is well over 1200 locations. Many of the high schools now have T3s and video classroom conferencing capability between each other and to the state University system.

      In most towns over 10,000 people, there two or more competing broadband choices, and that doesn't just mean the ILEC (was Verizon, now Fairpoint) and a cable company. There are a number of regional CLECs providing DSL and dialtone services, and several rural areas with wireless ISPs that compete with FairPoint. The prices are not as low as you would find in MA or NY or CA, but it is available.

      There is even one CLEC that has built their own fiber optic network in a Verizon/FairPoint city (Lewiston) that also has a strong cable company (Time Warner) and offers triple-play (voice/video/data) residential and business service and is expanding to two more cities in the state in the next year. You can purchase "lit service" multimegabit service in most of the cities, and leased dark fiber in the major areas, if you have the need and the budget.

      As an example, you can get 10Mbit/sec of business class Internet pipe (fiber delivered) in the business districts of most central Maine cities from no less than 3 different carriers for about $1200/month. Typical residential DSL is about $40 for 2 Mbits.

      That all said, there are still large sections of the state, in the towns and villages with less than a few thousand people, where you cannot get broadband at all, or you have only a single option. The state has recently setup a special program called ConnectME [maine.gov], funded by a telecom tax, to bring broadband to even the most rural of areas.

      (yes, I live here. There is much that is still backward about Maine, but telecom ain't it.)
  • This is good to see. Judges starting to look into the tech of a tech issue. Way cool!!!

    Here come the Judge! Here come the Judge! http://www.evtv1.com/player.aspx?itemnum=1242 [evtv1.com]

    P.S. Old Rowan & Martin's Laugh In meme.

    BTW mod's:
    research before you mod me offtopic,. You youngsters may be surprised!
  • of assuming that this judge is anti **AA. He's just doing his job. Since there's about a 99.99% probability he was doing this dance as a lawyer when he was younger he knows all the tricks (and probably a few they don't). Still, something inside this IANAL says he's pi55ed with the **AA lawyers. If you push the rules too far (like SCO) then expect misery...

    Judge = adjudicator. Judge != correct.

    "There exists in a field in some US state at least one sheep which is black on the top" c.f. Heinlein's fair wi

  • I love how many flawed arguements are presented here.

    - I don't buy CD's because that screws the RIAA (Uh, lots of indie music has nothing to do with the RIAA and you find those in record stores
    - I don't listen to todays music (well, that sucks for you because there is a lot of good stuff!)

    etc etc etc

    There is a MASSIVE movement to eliminate the middleman (RIAA). Tons of websites are popping up where music is shared FREELY. Most of it used to suck but a lot of it is turning out to be pretty good.

    With FREE sof

  • Just dawned on me. (Score:3, Insightful)

    by Steauengeglase ( 512315 ) on Friday May 30, 2008 @07:57AM (#23598263)
    I've often heard it said that those in the legal profession are the ones who carry out responsibilities that were once held by kings and nobles. The RIAA's only fault is confusing kings and nobles with vindictive gods.

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