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ABA Judges Get an Earful About RIAA Litigations 349

NewYorkCountryLawyer writes "I was afforded the opportunity to write for a slightly different audience — the judges who belong to the Judicial Division of the American Bar Association. I was invited by the The Judges Journal, their quarterly publication, to do a piece on the RIAA litigations for the ABA's Summer 2008 'Equal Access to Justice' issue. What I came up with was 'Large Recording Companies vs. The Defenseless: Some Common Sense Solutions to the Challenges of the RIAA Litigations,' in which I describe the unfairness of these cases and make 15 suggestions as to how the courts could level the playing field. I'm hoping the judges mod my article '+5 Insightful,' but I'd settle for '+3 Informative.' Here is the actual article (PDF). (If anyone out there can send me a decent HTML version of it, I'll run that one up the flagpole as well.)" Wired is helping to spread the word on Ray's article.
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ABA Judges Get an Earful About RIAA Litigations

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  • by Anonymous Coward on Tuesday July 29, 2008 @07:23PM (#24393687)

    about the unfairness of the article in three, two...

    • by Anonymous Coward on Tuesday July 29, 2008 @10:12PM (#24395523)

      Ladies and gentlemen, I have uncovered a plot! A fiendish plot that undermines the very foundations of Slashdot itself!

      Notice how Ray Beckerman goes out and defends people against the RIAA, to win the hearts and minds of Slashdotters. Then he uses that goodwill to get stories published from the firehose, onto the front page. What happens next is the really fiendish bit: he posts a series of comments on the article, whereupon the moderators invariably mod them up to +5.

      Can't you see what he's doing? It all fits: Ray Beckerman is a karma whore! This is a bigger conspiracy than twitter and his sock puppets!

  • by Anonymous Coward on Tuesday July 29, 2008 @07:26PM (#24393717)

    You are a hero.

    • by Nefarious Wheel ( 628136 ) on Tuesday July 29, 2008 @11:45PM (#24396537) Journal
      So you Yanks do keep the odd clear thinker around?* Good job, that. Bloody good job. I just hope the judges read the end notes too - there's a lot of good content in there, may ultimately be as useful to the process of achieving fair treatment as your well-crafted suggestions.

      I may be a wee bit out of your jurisdiction but I maintain the appeal to fairness and reason presented in your paper holds universal appeal.

      (Shakes head, walks away whistling.)

      *Yeah, deliberate troll, on the basis that you're allowed to insult your friends. Deal.

  • by jx100 ( 453615 ) on Tuesday July 29, 2008 @07:27PM (#24393725)

    They are greatly appreciated.

  • Damn it! (Score:5, Funny)

    by geekoid ( 135745 ) <dadinportland@yah[ ]com ['oo.' in gap]> on Tuesday July 29, 2008 @07:28PM (#24393751) Homepage Journal

    That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments. Now my replies need to be thought out!

    I mean, you look like one of us(except for the monkey suit).

    • Re:Damn it! (Score:5, Interesting)

      That article has a picture of you. Do you know what that means? It means it's harder to make snarky comments.

      No problem. You can keep on making snarky comments.

      Now my replies need to be thought out!

      Don't start on my account.

      I mean, you look like one of us

      I am one of you.

      (except for the monkey suit).

      I only wear the monkey suit for special events such as funerals, bar mitzvahs, and court appearances. I.e., just like you.

      • Real question (Score:5, Insightful)

        by geekoid ( 135745 ) <dadinportland@yah[ ]com ['oo.' in gap]> on Tuesday July 29, 2008 @08:08PM (#24394153) Homepage Journal

        I have read the copyright law, but since I am not a trained lawyer I am confused on one part.

        Is downloading infringement? or is it distribution?

        Distribution makes sense to me, downloading(receiving) doesn't.

        Am I to be liable if it turns out the book I bought from a bookstore is actually a copy of something some else wrote?

        Where doesn't it say downloading is infringement?

        AFAIK, All the cases had people whose software was downloading also had 'sharing' turned on.

        • Re:Real question (Score:5, Insightful)

          by jeiler ( 1106393 ) <[moc.liamg] [ta] [ffo.reggub.og]> on Tuesday July 29, 2008 @08:37PM (#24394377) Journal

          Is downloading infringement? or is it distribution?

          OK, I am not Ray, and I am not a lawyer. Make of this what you will. All of the following applies to US law.

          Distributing other people's copyrighted files may violate 17 USC 106(3). Downloading other people's copyrighted files may be considered "reproducing" said file, which may violate 17 USC 106(1).

          The big problem is these laws were written before p2p sharing existed, so we don't really know for certain how the law applies to these issues. The RIAA (and other groups such as the MPAA) is arguing that 17 USC 106 be applied very broadly, so as to definitely condemn downloading and uploading files. Ray, the EFF, and other organizations are arguing (among other things) that 17 USC 106 does not apply as RIAA thinks it should.

      • Re:Damn it! (Score:5, Funny)

        by G00F ( 241765 ) on Tuesday July 29, 2008 @08:11PM (#24394165) Homepage

        "I only wear the monkey suit for special events such as funerals, bar mitzvahs, and court appearances. I.e., just like you."

        Eh, I dunno, the last bar mitzvah I went to, I dressed like a renaissance knight.

      • Re:Damn it! (Score:5, Insightful)

        by RobBebop ( 947356 ) on Tuesday July 29, 2008 @08:15PM (#24394187) Homepage Journal

        And a sense of humor, as well?

        Ray - Not only do you do great things for "The People", but I believe your work is helping to fix the typical feeling of mistrust that most Americans have for lawyers.

        I, for one, feel better knowing that not all lawyers are as portrayed in the movies.

        And I am glad you can make jokes about yourself. I have long believed that this ability is one of the more noble qualities that a person can have... and somebody who can pull it off well is worthy of a great deal of respect.

        Thank you.

  • Wow (Score:5, Insightful)

    by Sparr0 ( 451780 ) <> on Tuesday July 29, 2008 @07:31PM (#24393781) Homepage Journal

    Awesome read. I wish this was required material for any judge presiding over the cases in question. I also wish for a pony.

  • by It doesn't come easy ( 695416 ) * on Tuesday July 29, 2008 @07:38PM (#24393839) Journal
    However, need to correct a very important have misspelled the web address (you have growklaw at least once in the paper).
    • Re: (Score:3, Insightful)

      by Anonymous Coward

      I started reading and then a question occurred to me. In the Napster days you found someone with a song and downloaded it. With a torrent, you are getting a chunk. I don't see the chunk as having any copyright since you need to assemble the file with the header to listen / view it. IANAL, To prosecute someone, wouldn't you have to prove that you got each chunk from the same computer / person? Just because someone is seeding a file doesn't mean that he is supplying all of the pieces to you to recreate / dupl

      • Re: (Score:3, Interesting)

        OK. Your immediate question would seem to have a parallel in books and similar things. There are any number of books, bibles, collections and whatnot that include some sort of language up front that says something to the effect that you may copy and use up to so many words.

        Lemme look... Yup. NIV states the following:

        The NIV text may be quoted in any form (written, visual, electronic or audio), up to and inclusive of five hundred (500) verses without express written permission of the publisher, providing the verses quoted do not amount to a complete book of the Bible nor do the verses quoted account for 25 percent or more of the total text of the work in which they are quoted.
        Notice of copyright must appear...

        So... If what you're suggesting has any validity, it would seem to undercut the ability to provide this provision. That is, why would anyone need to care? It would seem the distributi

        • Re: (Score:3, Interesting)

          Even better yet, I can say for certain that for each video, there is an exact number assigned to it. A hundred byte file has a number not exceeding 2^800.

          This number grows rather large when we talk about 600MB files. However, these numbers are either prime, or composed of multiples of prime. Aside the difficulty of factoring out primes in big numbers, would trading the primes and frequency violate copyright?

          Or worse yet, we can describe film data as a 3d graph. If we approximate the set of equations, we ca

  • judges (Score:3, Insightful)

    by arbiter1 ( 1204146 ) on Tuesday July 29, 2008 @07:52PM (#24393991)
    a lot of what it comes down to, is a lot of the judges are older people that don't know much about computers cept enough to use one for the basics then you get a so-called "expert" to use fancy terms and they judge don't have a clue what most it means and get slammed. Other part is most the defendant's can't afford to fight a multi-billion dollar company and get short shit end of the stick
  • Question for NYCL... (Score:5, Interesting)

    by GeneralEmergency ( 240687 ) on Tuesday July 29, 2008 @07:59PM (#24394053) Journal

    --Validity of Plaintiffs' Copyright Infringement Claim--
    "Without actual distribution copies . . . there is no violation distribution right."
    --William F. Patry, Patry Copyright, 2007.25

    I assume that MediaSentry has some sort of signed agreement or license that gives the copies that they make in the course of thier "investigations-ha-ha-ha" the status of "authorized duplications". Without such a license or assignment of duplication rights, MediaSentry would be guilty of infringement themselves, would they not?

    If said licenses or assignments do in fact exist, why can the "evidence" of the download transaction (a copy being made) be termed an act of "Unauthorized Distribution" if the party actively making the copy is explicitly "authorized" to make said copies?


  • Obligatory.... (Score:4, Informative)

    by kipin ( 981566 ) on Tuesday July 29, 2008 @08:00PM (#24394063) Homepage
    A torrent link to the pdf can be found here! []
  • Admissable (Score:5, Interesting)

    by hellwig ( 1325869 ) on Tuesday July 29, 2008 @08:01PM (#24394077)
    IANAL, so when I read the 15 common-sense suggestions a lot of them seemed to me to be things the Judge should be doing anyway (hence the common-sense part). It sounds like because the defendant isn't able to hire a fully-competant lawyer who would be able to request these things automatically, the judges are allowing the over-paid RIAA lawyers to subvert basic court procedure, at the cost of justice for the defendant. I assume that when Ray is defending someone against the RIAA, he is following his own suggestions.

    This is the problem with the court systems in America. We use things like precident instead of common sense. Judges are too scared to make decisions that aren't supported by the actions of other judges (though someone had the balls to set the precident in the first place). Common lawyers are too inept or lack proper experience to understand the rights that their clients have as defendants in a civil suit (the old movie cliche of a worthless public defender comes to mind here).

    I understand common-sense is something most people don't have anymore, but when my life or livelyhood is at stake, I would hope the person defending me has a little.
  • by LVSlushdat ( 854194 ) on Tuesday July 29, 2008 @08:05PM (#24394125)

    All I want to say is God Bless you, Ray Beckerman.. You are the lone voice crying in the wilderness against the RIAA/MPAA... May you continue fighting the good fight!!

  • by blind biker ( 1066130 ) on Tuesday July 29, 2008 @08:05PM (#24394127) Journal

    Definitely my favourite Slashdot user.

    Such dedication to the greater good is like a rare gem. So rare, in fact, you start doubting it even exists anymore. For those of you who don't know, Ray Beckerman has been fighting the RIAA since a long time, and has been great at it!

  • by Anonymous Coward on Tuesday July 29, 2008 @08:06PM (#24394135)

    By all means, RTFA, as the following will be put into absolutely needed context, but here are the suggestions themselves:

    Suggestion 1. Be alert to misjoinder in "John Doe" cases.
    If a court is presented with a "John Doe" case that joins more than one defendant, under well-settled principles the case should be dismissed as to all John Does except John Doe number one. Plaintiffs should be ordered to show cause why they should not be held in contempt of the November 17, 2004, order of the district court in Fonovisa v. Does and subject to Rule 11 sanctions. And because there will likely be no defendant's counsel present, the court should read the plaintiffs' response with a critical eye.

    Suggestion 2. Require in personam jurisdiction and venue.
    If a court is presented with a John Doe case that fails to set forth detailed factual allegations of the basis for venue and for in personam jurisdiction in that district, the action should be dismissed.

    Suggestion 3. No ex parte motion practice.
    Nothing should be granted ex parte unless it involves an order providing for meaningful notice of the motion for discovery to be afforded to the John Doe and to the ISP. The order should state that the ISP is to be provided with a full set of papers for transmission to the John Doe, and should provide ample time from the Doe's receipt of such papers, consistent with the court's usual practices for motions on notice, to respond. These should include everything a defendant is normally entitled to receive under the court's usual rules and practices, including the summons and complaint, all of the motion papers, and the court rules, notices, and other materials supplied to defendants.

    Suggestion 4. Make explicit the legal authority upon which discovery
    applications are permitted or rejected.

    Justice will be well served if a court is able to take the time to scrutinize the statutory basis invoked for each discovery application, cite the authority supporting its rulings, and deny discovery applications on their merits if they are not warranted by existing statutes or case law.

    Suggestion 5. Scrutinize John Doe pleadings and evidence without being intimidated by technology jargon.
    The complaint, of course, affords the opportunity to ensure that plaintiffs have validly pleaded a copyright infringement claim and that the evidence is admissible and covers all elements of the claim. It is easy to be overwhelmed by impressive-sounding technical and pseudo-technical jargon. Allow me to observe that if the court and the court's law clerks and law secretaries (many of whom are "digital natives") do not understand the case, that may be a sign that the plaintiff has none.

    Suggestion 6. Carefully evaluate motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
    Careful evaluation of a complaint's sufficiency on a motion to dismiss may ultimately spare defendants significant and unwarranted hardship. A court, therefore, should stay all discovery while the motion is pending, and, if it denies the motion, certify the order denying the dismissal motion for an interlocutory appeal.

    Suggestion 7. No routine consolidation or "related case" treatment.
    A court need only follow traditional principles for consolidation and "related case" treatment. There is no need to create a special exception for these plaintiffs. Where the defendants are unrelated to each other, their cases are unrelated to each other and should be treated as such.

    Suggestion 8. Keep discovery short and sweet.
    If, and only if, the plaintiffs can muster an evidentiary showing that their case has merit and that the defendant committed copyright infringement, then the court may allow (1) a deposition of the plaintiffs; (2) a deposition of the defendant; and (3) an examination of the hard drive by a mutually agreeable independent neutral forensics expert whose fees will be advanced by the plaintiffs and will be treated as a taxable disbursement to ab

  • Well done (Score:5, Insightful)

    by BlueParrot ( 965239 ) on Tuesday July 29, 2008 @08:12PM (#24394169)

    I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say...

    Oh, and well done Ray, I will be saving this article as an example of why we need due process.

  • by shrikel ( 535309 ) <(moc.liamg) (ta) (jrafgalh)> on Tuesday July 29, 2008 @08:19PM (#24394213)
    Funny, I didn't realize the ABA utilized slashcode.
  • by beadfulthings ( 975812 ) on Tuesday July 29, 2008 @08:25PM (#24394279) Journal

    But I'll post this anyway. Your efforts are sincerely appreciated by many of us. I've read the article, and I hope that judges who read it will take a serious look.

    I am currently actively involved in supporting a blogger in the UK whose right to free speech was recently threatened. I would not have had the interest or courage to become involved in this effort if I had not been exposed to the RIAA issue on Slashdot. Though the two types of cases differ greatly, the underlying message is the same: Individual freedoms must not be tampered with or trampled. You have expressed that basic truth very eloquently, and I hope you will continue to do so for a very long time.

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

    by gillbates ( 106458 ) on Tuesday July 29, 2008 @08:46PM (#24394451) Homepage Journal

    FTA: Only a single case in four years, Capitol v. Thomas,11 has ever gone to trial, and that one only because the judge denied the defendant's attorney's motion for leave to withdraw.

    The possible reasons behind this interest me:

    1. The defendants knew they were guilty and just decided to settle, or:
    2. The defendants realized that, guilty or innocent, it's just cheaper to settle, and possibly:
    3. Those with the resources to stand up to the RIAA find that - with the exception of the above case - they're all bark and no bite.
    4. Which means that while you might not be able to avoid being sued by the RIAA, it isn't likely that you'll actually get to trial. Which futher implies that:
    5. The RIAA is using the courts to run an extortion racket.

    It seems that only the most unconscionable, reckless, and irresponsible corporate officers would authorize settling a debt for pennies on the dollar, yet this is exactly what the likes of Vivendi, Sony, etc... propose with their settlement offers. For this to be a legitimate debt, the CEOs of said corporations are breaching their fiduciary responsibility to their shareholders.

    I'm wondering if I could buy stock in Sony and sue the CEO for devaluing the company's assets. After all, if downloading really does cost several hundred thousand dollars per infringer, why are they settling for a few thousand?

    I'm waiting for them to get sued under RICO.

    • Re:Interesting... (Score:4, Insightful)

      by Opportunist ( 166417 ) on Wednesday July 30, 2008 @01:31AM (#24397303)

      Hmm... let's see the possible outcome...

      1. Defendent knows he's guilty and settles -> RIAA wins
      2. Defendent knows he can't afford to fight, no matter if he's guilty -> RIAA wins
      3. Defendent knows he's innocent and decides to fight, RIAA drops case -> Defendent wins

      In total, I think it's quite a good chance for the RIAA to win their case without ever going to court. I wonder why they don't just randomly pick people and sue ... nevermind.

    • Re:Interesting... (Score:4, Insightful)

      by jimicus ( 737525 ) on Wednesday July 30, 2008 @04:30AM (#24398343)

      I'm wondering if I could buy stock in Sony and sue the CEO for devaluing the company's assets. After all, if downloading really does cost several hundred thousand dollars per infringer, why are they settling for a few thousand?

      IANAL, and nor am I a music executive, but I can think of an answer to that one easily enough.

      Because otherwise they'll have to spend just as much on lawyers which they're unlikely to get back; even if awarded costs you can't get a man whose total assets amount to $100,000 to give you $200,000.

  • by perlchild ( 582235 ) on Tuesday July 29, 2008 @09:13PM (#24394623)

    Seems to me that the RIAA's quote in the appendix is quite interesitng:
    when you fish with a net, you're gonna catch a few dolphins

    Especially since you can see from the list of people they sued, that they have only sued dolphins(casual defenseless infringers), and not a single barracuda(large scale industrial pirates)...

  • by CorporateSuit ( 1319461 ) on Tuesday July 29, 2008 @09:17PM (#24394673)
    Formal, nonetheless engaging. The article did have a few "think of the poor" phrases that seemed a little obtuse (in comparison to the rest of the article, which was impeccable), as justice meted for violation of copyright laws should be, ideally, blind -- listening to what's right vs. wrong instead of who is right vs. wrong. Imagining the worst, it seems it could be confused from the original intent of the article: allowing defendants to competently defend themselves.

    The article does raise a question for me, however, as a standard person that could get caught up in something like this. If I were to get a judge who turns a blind eye to these seemingly common sense parts of a due process, would there be anything I could do to demand that I be given the rights to a fair trial, or would such demands be seen as contempt of court? I'm assuming it'd be poor sport to tell the judge that he's not doing his job, and even if granted a retrial, wouldn't win me many points with his replacement.

    tl;dr: what's the best way a man can proceed if he doesn't get a fair first trial?
    • by Petrushka ( 815171 ) on Wednesday July 30, 2008 @02:43AM (#24397765)

      The article did have a few "think of the poor" phrases that seemed a little obtuse (in comparison to the rest of the article, which was impeccable), as justice meted for violation of copyright laws should be, ideally, blind -- listening to what's right vs. wrong instead of who is right vs. wrong.

      Personally I think Ray made a good case for this (see page 2 in particular). The judge's job, he argues, is to make sure that the trial is equitable. As he points out, there's an awful lot of ex parte stuff going on, and most times the defendant actually appears it's pro se or else the defendant's representation is only there because they have to be; given that, the only way to make sure that the trial is equitable is for the court to rest a finger lightly on the scales. I hope the article's intended readers find that half as persuasive as I do.

  • Awesome (Score:3, Informative)

    by sabernet ( 751826 ) on Tuesday July 29, 2008 @09:37PM (#24394987) Homepage

    I'm Canadian but am impacted a lot by what goes on down there as certain parties luuuuv to peddle that sleeze Northward and beyond.

    So allow me to throw some transnational thanks your way:) It greatly is appreciated.

  • by Il128 ( 467312 ) on Wednesday July 30, 2008 @12:52AM (#24397071) Journal
    The RIAA has sued and settled with innocent people. [] The RIAA has been criticized in the media after they subpoenaed Gertrude Walton, an 83-year-old grandmother who had died in December of 2004.[94] Mrs. Walton stood accused of swapping rock, pop and rap songs. The RIAA in 2003 attempted to sue Sarah Seabury Ward, a 66 year-old sculptor residing in Boston, Massachusetts. They alleged that she shared more than 2,000 songs illegally. The RIAA dropped the suit when it was discovered that she was a computer novice. The case was dismissed, but without prejudice. In a Brooklyn case, Elektra v. Schwartz,[95] against RaeJ Schwartz, a Queens woman with Multiple Sclerosis, the RIAA's lawyers wrote to the Judge that they were in possession of a letter in which "...America Online, Inc., has confirmed that Defendant was the owner of the internet access account through which hundreds of Plaintiffsâ(TM) sound recordings were downloaded and distributed to the public without Plaintiffsâ(TM) consent.â After the defense received a copy of the letter, it turned out that the letter merely identified Ms. Schwartz as the owner of an internet access account, and said nothing at all about "downloading" or "distributing".[96] The RIAA has also been criticized for bringing lawsuits against children, such as 12 year old Brianna LaHara in 2003.[97] The RIAA also attempted to sue Candy Chan of Michigan, for the alleged actions of her daughter, 13 year old Brittany Chan. Under the threat of a possible defendant's motion for summary judgment and attorneys fees, the RIAA withdrew the case Priority Records v. Chan.[98][99] When the court ruled in favor of the mother, dismissing the case, the RIAA proceeded to sue her child. However, prosecuting a minor is more difficult; the Michigan federal court required the RIAA to make provision for a guardian ad litem to be appointed to protect the interests of the child, and required the RIAA to be responsible for paying the guardian ad litem. The RIAA failed to submit a workable proposal, and the Court dismissed the case. The RIAA recently sued the 16-year old son of Patti Santangelo[100] and as of this writing is attempting to force a 10 year old girl in Oregon to be deposed (she would have been 7 years old at the time of the alleged infringement)[101]. The RIAA has also filed a lawsuit against a woman who has never bought, turned on, or used a personal computer for using an "online distribution system" to obtain unlicensed music files.[103] This occurred again in the Walls case; "I don't understand this", said James Walls, "How can they sue us when we don't even have a computer?".[104] The RIAA filed a lawsuit against Larry Scantlebury, a man who had passed away. They offered the deceased man's family a period of sixty days to grieve the death before they began to depose members of Mr. Scantleburyâ(TM)s family for the suit against his estate.[105]
    • by cheros ( 223479 ) on Wednesday July 30, 2008 @04:19AM (#24398279)

      In a fair number of instances you mention it appears the reality is somewhat far removed from what the RIAA lawyers state, or it appears statements were made with the clear intention to mislead.

      Isn't that a punishable offense? If not it should be IMHO - at a criminal level so that it cannot be insured against or subverted by some more creative lawyering. One must keep in mind that if a lawyer is prepared to step so far out of the expected modus operandi to make such statements, actual misdirection is not too much further from the accepted course of action.

      It's up to the judges to safeguard the system. So far, that idea apparently hasn't worked too well..

  • by gnasher719 ( 869701 ) on Wednesday July 30, 2008 @04:15AM (#24398261)
    German courts _have_ rejected subpoenas for the names and addresses of more than 10,000 IP addresses with the simple reasoning that the plaintiffs had no intention at all to file a criminal case. They basically told them to bugger off and if they want to find out the names they have to do that themselves and not use tax payers money to help in their civil litigation. (The record companies basically claimed that these 10,000 people had done something criminal, in which case the criminal justice system would have to go to work to help solving the crime. However, it was just too obvious that this was just a pretence to get the names and sue in civil court). The police is not supposed to find music downloaders when they could use their time to find thieves, murderers etc. ).
  • By the way, the article was written largely in March of this year. In June I submitted a proposed epilogue mentioning a few bits of late breaking news on the 'equal access to justice' issue. The Judges' Journal didn't have room to add it in, but here it is [].

"God is a comedian playing to an audience too afraid to laugh." - Voltaire