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RIAA Says It Doesn't Have Enough Evidence

Zonk posted more than 8 years ago | from the need-to-work-on-that-evidence-stuff dept.

208

NewYorkCountryLawyer writes "In Elektra v. Wilke, the Chicago RIAA case in which defendant Paul Wilke has moved for summary judgment, the RIAA has responded to the summary judgment motion by filing a motion for 'expedited discovery', alleging that it needs expedited pretrial discovery because it does not have sufficient evidence to withstand Mr. Wilke's motion. The RIAA's lawyer said: 'Plaintiffs cannot at this time, without an opportunity for full discovery present by affidavit facts essential to justify their opposition to Defendant's motion.' The motion and supporting affidavit are available online."

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Makes sense (5, Insightful)

Anonymous Coward | more than 8 years ago | (#16075103)

Since almost everyone just settles *cough*extortion*cough*, they rarely have to prove anything.

ah-ha (3, Insightful)

Anonymous Coward | more than 8 years ago | (#16075109)

no evidence ... how interesting. hollow people, hollow lawsuits. finally exposed!

Evidence (4, Insightful)

nurb432 (527695) | more than 8 years ago | (#16075198)

Not exactly.

They have enough evidence to start proceedings, but not enough to prove guilt. So they ask for more with the discovery. This is also seen in other types of cases, so its not unheard of.

The discovery might even entail impounding his entire home, and all his assets for 'review'. A good 'threat' to cause him to settle out of court like everyone else has. Does he have the balls for it? The RIAA has nothing to lose by a war of attrition. He does. ( we all do )

While not unheard of (5, Insightful)

postbigbang (761081) | more than 8 years ago | (#16075218)

It also means that their supporting tort wasn't very strong, and might set precedent to require greater revelation in the tort to support their accusation before messing with both the court and the defendent(s).

It's a smelly, scummy sort of ambulance chaser that doesn't have his/her ducks in a row before they baste some poor person in oil and fry them before the bench.

This bodes badly for whatever hacks the RIAA has employed to enforce their ex-foreclosure bar-bells. I doubt they're embarrassed, as it is impossible to embarrass sociopaths.

Now mod me down for troll-- or be enlightened and understand that the poster actually got some most interesting and relevant information: the RIAA's enforcers are starting to sputter.

Re:While not unheard of (4, Funny)

binkzz (779594) | more than 8 years ago | (#16075903)

"It's a smelly, scummy sort of ambulance chaser that doesn't have his/her ducks in a row before they baste some poor person in oil and fry them before the bench."

I bet no-one's ever uttered that exact sentence ever before.

Re: Mod me down for troll, hmm? (0)

Anonymous Coward | more than 8 years ago | (#16076004)

Instead you got modded up to 5.

Re:Evidence (1)

schon (31600) | more than 8 years ago | (#16075276)

They have enough evidence to start proceedings

Which is to say "none".

You know that line you see in legal filings "On information and belief..." It means they have no evidence.

You're not supposed to start proceedings if you have no evidence, but there's nothing stopping you if you really don't.

Just look at the SCOX vs IBM lawsuit.

IANAL (1)

einhverfr (238914) | more than 8 years ago | (#16075955)

but my first reaction was "Huh?"

Summary judgement is appropriate where any disagreement about the nature of the facts in a case is insufficient to overrule the legal standing. In short, summary judgement is like saying "Your honor, even if everything they say is true, the law is still on my side."

I suppose it is too much to hope that a Real Lawyer(TM) will explain this to us....

Since submitter is a lawyer ... (5, Insightful)

Nicolas MONNET (4727) | more than 8 years ago | (#16075112)

... could'nt he just fucking translate the submission into english before posting ...

"Nul n'est sensé ignorer la loi", but who the fuck he supposed to understand legalese, I wonder.

Re:Since submitter is a lawyer ... (4, Interesting)

anonieuweling (536832) | more than 8 years ago | (#16075116)

If defender wins, how can he get back at RIAA for a 'false' suit?

Re:Since submitter is a lawyer ... (4, Informative)

Watson Ladd (955755) | more than 8 years ago | (#16075121)

Paul Wilke wants the case settled now. The RIAA say they don't have enough evidence, and so are asking for a faster discovery. Basically the RIAA didn't have evidence before the suit, and so want more time to come up with something.

Re:Since submitter is a lawyer ... (5, Insightful)

muskieman (935340) | more than 8 years ago | (#16075314)

Sad to back these tools up, but they (claim) did have evidence, they tracked an ip address that was traced to an account, then filed a lawsuit against that account. Paul claims he did not share files and does not have them on his computer. So, the tools want to verify his claims by inspecting his computer etc etc. This is all reasonable (while the concept of the lawsuits may not be)

Hopefully, Paul (or Paule) does not have any evidence of those songs on his computer (and more importantly, does not have evidence that they may have been erased, there was a precedent where someone got the book thrown at them after using a drive wiper, hopefully that gets thrown back on appeal). Sadly, even if he is innocent, if they (the tools) can convince a judge that the data has been tampered with (wiped hard drive, another computer, whatever) they could still reak (pun intended) havoc.

This is an opportunity to raise the bar by requiring much more specific proof of infringement before violating a person's right to privacy and disrupting their lives, but don't expect that to come out of Chicago. Next best thing is that if Paul can withstand the expedited discovery (and many dirty tricks will probably be used) then he wins and precedent is set. This will limit and force the hand of the tools in future cases and encourage others to resist the suit (specifically if Paul can get attorney fees).

Re:Since submitter is a lawyer ... (0, Insightful)

Anonymous Coward | more than 8 years ago | (#16075531)

Americans have rights still? I thought you gave all those up to get rid of the deaths caused by terrorism, which amounts to less than a fraction of a percent.

Wow! (0)

Anonymous Coward | more than 8 years ago | (#16076005)

That was an astonishingly lame political flame. Just get off the couch and go to a rally already! Jeez.

Re:Since submitter is a lawyer ... (5, Funny)

Talez (468021) | more than 8 years ago | (#16075125)

Allow me to try.

Defendant: I'm tired of this bullshit. Show me what you really have so we can get this over and done with.
RIAA: Uhhh... shit. We don't have a thing. Your honour could we please search everything the defendant owns in order to find something?

Re:Since submitter is a lawyer ... (0, Redundant)

gEvil (beta) (945888) | more than 8 years ago | (#16075131)

Ahhh, I see SCO has finally found another revenue stream--consulting for the RIAA...

Re:Since submitter is a lawyer ... (1, Redundant)

CrkHead (27176) | more than 8 years ago | (#16075165)

Does this mean they have the same lawyers as SCO?

Re:Since submitter is a lawyer ... (4, Insightful)

Anonymous Coward | more than 8 years ago | (#16075219)

No, this doesn't mean they have the same lawyers as SCO, just the same "sue upon suspicion, find evidence later" style of handling things.

From the RIAA's point of view, that's not as dumb as it sounds.

1) They get the publicity (another mile on the piracy lawsuit odometer). Whether this one is guilty or not, it counts just as well in their scare tactics.

2) The mere fact that there *is* a lawsuit leads to out-of-court settlements more often than to court sessions, because the defendants (plain citizens) believe they'll save on legal expenses that way.

In this case they had the bad luck to "hit" a 50+ year old guy who stands up for himself, but suppose it'd been someone with a 14-year old kid using the family's internet connection. You know how kids are, and they wouldn't file a complaint if they had nothing to back it, would they? So you'd probably believe it, and try to move it into history as fast and as cheap as you can.

Re:Since submitter is a lawyer ... (2, Insightful)

thej1nx (763573) | more than 8 years ago | (#16075671)

You know how kids are, and they wouldn't file a complaint if they had nothing to back it, would they?


Unfortunately, media is all too full of stories of RIAA falsely suing old grannies, dead people and folks that do ot even own a computer. So no, that is not a natural assumption anymore. You are wrong.

Re:Since submitter is a lawyer ... (1)

somethinghollow (530478) | more than 8 years ago | (#16075166)

Your honour could we please search everything the defendant owns in order to find something?

This suit takes place in the US, so it would be "Your Honor." But, you know... semantics and what not ;)

Re:Since submitter is a lawyer ... (1)

MightyYar (622222) | more than 8 years ago | (#16075197)

Well, I'm American and I know what he meant. He can say "zed" instead of "zee" if he wants, too. Hell, I even know that he means gasoline when he says petrol and gather he means elevator when he says lift. A car trunk is a boot. There's a whole web site dedicated to this somewhere...

Re:Since submitter is a lawyer ... (5, Funny)

Alien Being (18488) | more than 8 years ago | (#16075231)

"There's a whole web site dedicated to this somewhere..."

I think there's a whole island.

Re:Since submitter is a lawyer ... (1)

Midnight Thunder (17205) | more than 8 years ago | (#16075271)

I think there's a whole island.

Should go on to include a number other land areas, such as South Africa, New Zealand and Australia.

Re:Since submitter is a lawyer ... (1)

somethinghollow (530478) | more than 8 years ago | (#16075260)

Try that sort of substitution in any programming language. I dare you.

But it was a joke. Really. See the winky face at the end? You might have missed that or maybe it wasn't in the right form of English.

Re:Since submitter is a lawyer ... (1)

MightyYar (622222) | more than 8 years ago | (#16075286)

A winky face doesn't make a comment any less snarky or annoying. Sorry, I'm just tired of flamewars about the metric system vs. the English system or British English vs. American English or whether a billion is one-thousand millions or one million-millions... they're all just stupid conventions. If you weren't flaming then I'm sorry I got all sarcastic.

Something else to annoy you (4, Funny)

rbarreira (836272) | more than 8 years ago | (#16075327)

I'm just tired of flamewars about the metric system vs. the English system
(....)
they're all just stupid conventions

No they're not, only one of those is :P

Re:Something else to annoy you (1)

MightyYar (622222) | more than 8 years ago | (#16075428)

See?

I know you were being funny, but put together a cohesive argument for my grandmother/mother/brother why they should all of the sudden switch to metric. My father and I are engineers and hate working with English units, so we are not your target. Even then, we usually only have to deal with English units at the beginning and the end of the design phase, or when using older equipment. 300 million people using a system of measure is all by itself a good reason not to change. From their point of view, it's just a bunch of eggheads making annoying arbitrary decisions. Hopefully, metric will eventually filter down to the consumer sphere - but for now, it is not some dire national emergency that we switch over. Frankly, I never see the U.S. switching over from miles on the highway or Fahrenheit for temperature... there's just no point.

Re:Since submitter is a lawyer ... (1)

ceoyoyo (59147) | more than 8 years ago | (#16076098)

Actually I've used several libraries where the authors have been kind enough to provide macros (or the equivalent) making "color" and "colour" both acceptable.

Re:Since submitter is a lawyer ... (-1, Flamebait)

Anonymous Coward | more than 8 years ago | (#16075498)

Well, I'm American and I know what he meant.

Admit it, you're one of those limey-wannabes that watches Black Adder and Red Dwarf and thinks they're hilarious. You claim to be the first one on your block to watch The Office, but not that stupid Americanized version, but the original from the UK. You think Monty Python is the epitome of comic relief. You probably even watch Dr. Who too don't you? Loser.

Re:Since submitter is a lawyer ... (1)

MightyYar (622222) | more than 8 years ago | (#16075592)

No, actually - though Monty Python is pretty damn funny. I've never seen Dr. Who or Red Dwarf. I think I've seen one episode from each continent of the Office.

That said, if you think it matters whether someone has a sense of humour or a sense of humor, then you've pretty much failed at life. Loser.

Re:Since submitter is a lawyer ... (0)

Anonymous Coward | more than 8 years ago | (#16075127)

Look it up in Wikipedia, http://en.wikipedia.org/wiki/Summary_judgement [wikipedia.org] or, if You are not going to, I'll tell You how I understood this (disclaimer: I am not a lawyer, don't use this for anything important):

A sues B.

B says to the court(judge): no need to go to the trial, I will present undisputable material evidence to your honour that they have no case, so that you can dissmiss the case.

In this case, A responded : "Hey, wait a minute, we were not prepared for this, we haven't (yet) gathered our evidence (as we thought none is going to call our bluff) to counter B's evidence. We want more time."

Re:Since submitter is a lawyer ... (5, Funny)

martin-boundary (547041) | more than 8 years ago | (#16075152)

Ok, I'll translate for you but bear in mind I've been watching a lot of TV recently so I'm a little zoned out and it might not all make sense:

The RIAA claim they got attacked by Paul Wilke in 2001 when Paul allegedly flew his ftp client into a Warez carrier. Of course this was before Hilary Rosen's "resignation" as the RIAA's chief anti-piracy lead, which I'll come back to. Now the RIAA are claiming that Paul can copy an MP3 within 45 minutes, which is contentious because they can't really tell the judge _which_ MP3s Paul can copy so fast. But given the nature and extreme urgency of the threat, they're asking the Judge for the right to go into Paul's house _right now_ and change the OS on his PC. Apparently, once they've liberated his hard disk, it'll be trivial to find tons of hidden MP3s.

Naturally, Paul isn't too happy about this, and he's been talking with his French lawyer about vetoing the proposal, which is what this letter is about. Right now, we're all wondering if the judge is going to make a resolution, and if the RIAA will go it alone anyway if it doesn't look like it'll work out for them.

Re:Since submitter is a lawyer ... (1, Informative)

Anonymous Coward | more than 8 years ago | (#16075203)

OK, I'll give it a try.

RIAA: Your honor, to the best that we can tell at this point, the defendant or someone using his account was sharing copyrighted materials on the internet
Defendant:Your honor, I am not liable because:

  1. They spelled my name wrong
  2. I don't have some of those songs on my computer
  3. The ones that I do have I ripped myself from my own CDs
I would like you to decide this right now based on what we have seen so far.
RIAA:Your honor, there is way too much that needs to be checked yet to make a valid decision one way or the other. Would you at least let us have discovery so that we can check to see if what he says is true?

Re:Since submitter is a lawyer ... (4, Informative)

quentin_quayle (868719) | more than 8 years ago | (#16075255)

Motion for Summary Judgment means asking the judge to dismiss the case now, because there is (and i may recall this inexactly, but this is the essence of it) "no genuine issue of material fact or law". In other words, defendant says, there are no relevant facts in dispute, and on the known facts the law is in my favor. So please dismiss.

Discovery is a process where each side submits lists of documents and other evidence (worded as broadly as they can get away with) and the court will force the other side to supply what's listed, if it's arguably relevant to proving or disproving a claim (or counterclaim, bla bla).

Courts generally supposed to frown on "fishing expeditions". Theoretically you have to have some evidentiary basis for a suit in the first place, before you can use the suit to compel discovery. Who knows what the RIAA can get away with, though.

(not a lawyer, did the jd, but this is not legal advice, yada yada)

Re:Since submitter is a lawyer ... (4, Insightful)

Shemmie (909181) | more than 8 years ago | (#16075306)

Thank God for lawyers. Without them, how would we ever decode legal issues that have been encoded by other lawyers. Wait a minute...

Re:Since submitter is a lawyer ... (1)

sabre86 (730704) | more than 8 years ago | (#16075363)

That's truly beautiful.

Re: Since submitter is a lawyer ... (0, Troll)

AngryNick (891056) | more than 8 years ago | (#16075324)

A Summary Judgment [wikipedia.org] is where the Judge makes a decision without a full trial. Sort of like moding a post as "troll" because the title reads "Buy Cheap Meds Online" (see experiment below).

The guy being attacked by the RIAA is just asking the Judge to decide the case without getting into all the expensive details of a long, bitter trial. He is effectively saying to the Judge that the RIAA has already presented all the evidence needed to make a correct decision in his favor.

I wouldn't get too excited. I assume most fights start out with one party saying "[This is stupid.] Now leave before I taunt you a second time!" (OMPQ)

Re:Since submitter is a lawyer ... (1)

neoform (551705) | more than 8 years ago | (#16075636)

"Nul n'est sensé ignorer la loi" is french. It says something like, "No part of the law is being ignored"

Is this stuff actually legal? (4, Interesting)

Inominate (412637) | more than 8 years ago | (#16075120)

Is this kind of stuff actually legal? The RIAA seems to like to do it, as SCO also did. Is it common to go into civil cases like this?

"We can't make a case against you, so you're going to have to do it for us."

What? Huh?

Re:Is this stuff actually legal? (2, Informative)

Watson Ladd (955755) | more than 8 years ago | (#16075129)

IANAL, but I belive that that standing has to be proven when the suit is filed, and the judge can throw it out for lack of standing if he belives that the person filing it wasn't harmed by the claimed actions of the defendant. Of course, this is a very low threshold.

Re:Is this stuff actually legal? (5, Informative)

nosilA (8112) | more than 8 years ago | (#16075298)

IANAL, but I am a third year law student:

Standing is different from having enough evidence to make a case. Standing, in this type of case, means that the plaintiff is alleging harm to itself by the defendant. I, for instance, would lack standing trying to sue Joe for hitting Jane with his car. But, if someone hit my car, and I think it was Joe, but I don't know for sure - I have standing, but perhaps no case.

In this case, the defendant has filed a motion saying that the plaintiffs (RIAA) do not have any evidence against him, and no reasonable judge or jury would find in the plaintiffs' favor. Unlike standing, RIAA could clear this hurdle merely by finding more facts that would implicate the defendant. The question is whether the plaintiff can use the discovery process to build a case if they have no evidence in the first place.

A defendant can be compelled to turn over any documents and records to the opposition that the opposition specifically asks for. However, RIAA needs to show that it has some basis for filing the suit, and that it isn't simply harassing the defendant. RIAA does not need to show it has enough evidence to proceed to trial. I'm not sure where they are on this case.

Re:Is this stuff actually legal? (2, Interesting)

boombaard (1001577) | more than 8 years ago | (#16075522)

hm.. most interesting, in a way.. could you also claim the right to look at all the RIAA's communication with the parent companies to see if there's a conspiracy going on to say, bash the poor consumers into submission? or would that be "unreasonable"?

Re:Is this stuff actually legal? (0)

Anonymous Coward | more than 8 years ago | (#16076024)

hm.. most interesting, in a way.. could you also claim the right to look at all the RIAA's communication with the parent companies to see if there's a conspiracy going on to say, bash the poor consumers into submission? or would that be "unreasonable"?

Sure this might be done if the defendant here had infinite monetary resources (such as the RIAA seems to have) and it was his solitary goal to take down the RIAA. But being an individual I suspect (as anybody would do) they want to dispatch this case as quickly as possible and get on with life. Not that it wouldn't be a noble goal.

with a bit of luck.. (1)

CdBee (742846) | more than 8 years ago | (#16075167)

.. Groklaw will cover ths in due course

Re:with a bit of luck.. (0, Redundant)

ColdWetDog (752185) | more than 8 years ago | (#16075206)

Groklaw will cover ths [sic] in due course

Here, I fix it for you....

Groklaw will translate this in due course

Why can't Google or Bablefish come up with a Legalese to English dictionary?

So in English . . (5, Insightful)

donaggie03 (769758) | more than 8 years ago | (#16075123)

Is this saying that RIAA sued someone, and the defendant actually fought back with a motion for dismissal? And the RIAA says that they don't actually have the evidence they need to prove anything, but just give them a minute, and they'll scrounge something up? Shouldn't the RIAA have thier evidence BEFORE the trial??

Re:So in English . . (1)

Name Anonymous (850635) | more than 8 years ago | (#16075154)

Shouldn't the RIAA have thier evidence BEFORE the trial??

Actully I think you mean shouldn't they have evidence before they file a lawsuit...

Re:So in English . . (4, Informative)

denebian devil (944045) | more than 8 years ago | (#16075214)

Actully I think you mean shouldn't they have evidence before they file a lawsuit...

In which case the answer is no. The RIAA should have a good faith basis for suing, but part of the legal process is that once the suit is initiated, there is a phase called "discovery" where both sides attempt to obtain evidence that supports their position, exchanges that evidence, requests access to certain things (e.g. the defendant's harddrive), and essentially tries to collect everything necessary to put on a case. Then there's the opportunity to file a Motion for Summary Judgment, if the evidence appears to show that the facts are undisputed (or fails to show anything of relevance). Then there's the trial. Obviously this is a highly simplified explanation, which leaves out other potential steps (or mis-steps) that are not currently relevant to my short summary as it pertains to this case, but that's the gist of it.

Re:So in English . . (1)

pembo13 (770295) | more than 8 years ago | (#16075438)

Aren't lawsuits the kind of thing which ruin peoples lives? IS "good faith basis" all that is required to start one?

Re:So in English . . (1)

Anonymous Coward | more than 8 years ago | (#16075445)

Actully I think you mean shouldn't they have evidence before they file a lawsuit...

In which case the answer is no.


So all you need is an accusation? Then why couldn't companies just keep accusing people over and over just by making things up and bankrupt them, what's to protect people from that?

Re:So in English . . (3, Interesting)

BVis (267028) | more than 8 years ago | (#16076079)

So all you need is an accusation? Then why couldn't companies just keep accusing people over and over just by making things up and bankrupt them, what's to protect people from that?
Nothing. Nothing at all. This is exactly how the RIAA/MPAA are operating. It doesn't matter that the law regarding P2P file sharing isn't black and white (as of yet, they've got lots of lobbyists trying to change that.) Whether you've actually committed the acts you're accused of is irrelevant - they say you have, they're suing you, and they're counting on you not being able to defend yourself, and thus paying out a settlement.

This particular phenomenon is the biggest argument for tort reform in recent memory. The American legal system is set up in such a way that, if you are sued, you are financially penalized win or lose. In other jurisdictions (I'm thinking of the UK in particular) the plaintiff is obligated to pay for the defendant's legal fees if the plaintiff loses the suit. This has the effect of curtailing suits that are filed simply to harass defendants, or to promote failing business models as the only choice available to the consumer, lest they be bankrupted in court.

Re:So in English . . (0)

Anonymous Coward | more than 8 years ago | (#16075538)

The RIAA should have a good faith basis for suing, but part of the legal process is that once the suit is initiated, there is a phase called "discovery" where both sides attempt to obtain evidence that supports their position, exchanges that evidence, requests access to certain things (e.g. the defendant's harddrive)

In the interest of fairness, shouldn't a defendent be able to request access to the hard drive of (say) Mitch Bainwol, just to make sure he doesn't have any copyrighted material that he shouldn't? After all, he's never denied having an illicit copy of the novel I'm writing, which seems awfully suspicious to me.

Re:So in English . . (0)

Anonymous Coward | more than 8 years ago | (#16075982)

So maybe this is the opportunity to ask for discovery of the RIAA. Go through all their files and memos to find out more about their policy of extortion and intimidation.

Turn about is fair play.

Re:So in English . . (1)

cdrudge (68377) | more than 8 years ago | (#16075422)

There is another lawsuit going on very similar to this. The plantiff sued on nothing, went through discovery on a fishing expedition to try to find anything, given time and time again to find something, and still has found nothing. It's been talked about a little here [groklaw.net] (although the site is currently down for maintainance).

Re:So in English . . (1)

NewYorkCountryLawyer (912032) | more than 8 years ago | (#16075752)

You might be talking about these cases: Priority Records v. Candy Chan [riaalawsuits.us] ( Chan I ) and Priority Records v. Brittany Chan [riaalawsuits.us] (Chan II ), in Michigan; Capitol v. Foster [riaalawsuits.us] , in Oklahoma; Warner v. Stubbs [riaalawsuits.us] , also in Oklahoma; and Virgin Records v. Tammie Marson [riaalawsuits.us] , in California. All cases resulted in RIAA dropping the case.

All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of the screenshot to the person who paid for it.

Atempt to translate and possible answer to RIAA (5, Interesting)

hugetoon (766694) | more than 8 years ago | (#16075157)

Let's try to translate:

RIAA: Hey yr honor, this dude stole my stuf, i know 'cause a guy i pay to hang on the net told me so!

DUDE: Nope, i didn't.

RIAA: Sure, they all claim the same, and actually by now i've got no evidence, but if you let me go his home and
put everything upside-down i bet my "experts" will find something!

Well, i hope this is not the way the USA justice works.

And if i were Defendant i'd ask RIAA in return (and before giving anything to them) to let me do forensics on computer their investigators used to identify my IP and computers they used to exchange mails and every other piece of equipement i could think off (like routers of their ISP). And it'd
take me 10 years or so, and of course at the expense or RIAA (i mean, forensics is a hard work, i intend to get payd for it) if i figure that they made a mistake.

Re:Atempt to translate and possible answer to RIAA (1)

CrankyOldBastard (945508) | more than 8 years ago | (#16075183)

Is this seriously allowed in the USA? Is this how we people from The Rest Of The World should expect to be treated in the USA, or do you just treat your own citizens this way? If the RIAA case folds due to admitting they have no evidence, does the Dude get recompensed for the insult to him? Do the RIAA get charged with "attempted perversion of justice" or whatever you Americans have as an equivalent? Or is this actually allowed in your "Land of the Free"?

I'm really asking by the way. I'd really like to get some kind of information so that this makes some kind of sense. SCO was wierd, but that was corporation vs corporation. But this is a charge against a living human being.

Re:Atempt to translate and possible answer to RIAA (0)

GeckoX (259575) | more than 8 years ago | (#16075263)

Yes. Yes, No. No. No. Absolutely.

This is not a flame, this is how I truly feel. This is but one thing that is completely and utterly FUCKED about america. I'm a canuck myself, which doesn't help much. The problem with us canucks is that we let the US fuck us over just as if we were their own. I tell you though, the RIAA ever shows up on my doorstep....Let's put it this way, I'll be demonstrating very directly just how many CD's I OWN, by shoving every single last one of them as far up their collective asses as my boot can kick them. Fucking god damned cancerous leeches.

But again, I do have to suggest this. The RIAA sucks, but it's the fucking scum sucker lawyers that give them teeth.

Re:Atempt to translate and possible answer to RIAA (1)

Pig Hogger (10379) | more than 8 years ago | (#16075500)

I tell you though, the RIAA ever shows up on my doorstep...
They won't. The Supreme Court decided that file sharing is legal.

Re:Atempt to translate and possible answer to RIAA (1)

LindseyJ (983603) | more than 8 years ago | (#16075291)

If you're not an American citizen, you probably won't be treated so harshly. Especially if you're here illegally; the courts like to let those sorts of people off easy. You know, just some time in a nice, cushy jail with three square meals a day, cable TV, free time... All paid for by me, of course.

Re:Atempt to translate and possible answer to RIAA (2, Interesting)

CrankyOldBastard (945508) | more than 8 years ago | (#16075692)

I'm not in the US illegally, and fail to see why anyone would want to be.

I was actually thinking of a situation where I could be in the USA working as a consultant (as I have before), and the RIAA decide they want me after I login to the Internet using the laptop I use back here at home. Or to look about more widely, at a situation like Dmitri Skylarov faced when in the USA with a perfectly valid visa.

Besides, your jails are not so nice. We know that your prisoners at Guantanamo Bay arn't treated "cushy" (4 months of solitary confinement without charges or trial for example) with "cable TV". I doubt anyone else from Australia wants to join David Hicks in your jails. In our gaols prisoners have the rights we are obligated to give them under our International Agreements.

Not only did the miss the crucial "?????" step (0)

Anonymous Coward | more than 8 years ago | (#16075161)

1. Sue
2. Get evidence
3. Get Money


They need to reorder step 1 and 2.

Grok Some Law (3, Funny)

somethinghollow (530478) | more than 8 years ago | (#16075170)

But what does Grok Law have to say about all this?! I'm lost without them.

Re:Grok Some Law (0)

Anonymous Coward | more than 8 years ago | (#16075653)

Hear Hear!

This is the way the system works (5, Interesting)

BGraves (790688) | more than 8 years ago | (#16075176)

The US has liberal pleading rules, and as such, has wide discovery as well. This is good when a small person tries to sue a large company. Say a company is dumping chemicals into your water, and your kid gets cancer. There is no way the company is going to give you the evidence you need to get a civil verdict. That is why you can file a claim with little to no evidence, and then through discovery, the court can force the company to provide you with types and quantities of what they are dumping into the water. If they refuse, they can be brought up on criminal charges. Rule 11 in the federal laws of civil procedures is designed to prevent lawyers from filing civil suits just to get discovery priviliges. If I was the gentleman in question, I would ask my lawyer to evaluate a Rule 11 charge in addition to the summary ruling. I am reading the rule right now, and a judge could impose on the party involved monetary penalties that would prevent the conduct in the future. I don't see that happening, but even if the judge just fined the law firm representing the RIAA, it would make them less likely to help the RIAA in the future.

Re:This is the way the system works (1)

StressGuy (472374) | more than 8 years ago | (#16075202)

I seems in the best interest of all of us to become familiar with this "rule 11".

IANAL (-1, Troll)

Anonymous Coward | more than 8 years ago | (#16075235)

IANAL, but isn't the prima facia intent of Rule 11, in the absence of any contradicting evidence, to describe the depth of my penis in inches in your rear entry?

Re:This is the way the system works (1)

GeckoX (259575) | more than 8 years ago | (#16075243)

I still don't see how this can be applied so arbitrarily.

In cases like you mention, there is at lest a set of plausible events that show a logical 'possibility' that a defendant did as charged. As per your example, your kid gets cancer, there's something funny with your water, this big company is upstream from your water supply and there are no other big companies up there...There is a trail that leads somewhere.

This is being used by the RIAA as a complete wild goose chase. He did it! Nope, we've got nothing whatsoever, but we guarantee you that you can find something on him for us! How'd we come up with his name? Well, we opened a phone book to a random page and...

Shoot the lawyers, if it weren't for them the RIAA would have been laughed out of existence years ago.

Re:This is the way the system works (1)

BGraves (790688) | more than 8 years ago | (#16075279)

The RIAA thought they had something at least plausible enough to go to court. Obviously they don't, and I hope the judge censures them for it. There is no point in overreacting until the judge makes a ruling. If he does find in favor of the RIAA, then it will be time to get upset. Don't blame the lawyers. Lawyers merely represent their client. RIAA is the one throwing money made from the declining sales of CDs at pointless lawsuits. Also, shouldn't we blame their tech guys for going out and finding these people on file sharing networks and providing IP addresses for the RIAA to sue? There is plenty of blame to go around.

Re:This is the way the system works (1)

thelost (808451) | more than 8 years ago | (#16075310)

I'm not American so I do not know much about the American justice system but to me it seems that up until now large companies such as the RIAA have been leveraging their vast financial resources to threaten individuals they are suing into settling out of court etc?

I guess what I am saying is that I don't hear about so many cases when individuals can or do sue large companies because financially it is impossible for private citizens to compete with multinationals. I also personally would feel very uncomfortable for instance trying to to go up against a multinational chemical/weapons/pharmaceutical companies, if you know what I mean. I would have to have a strong belief in what I was doing.

So to summarize, even with powers of discovery, surely individuals unless extremely rich (the majority of individuals the RIAA sue are likely not to be) will not be in a position to expedite a reasonable investigation that leverages those powers. That assumes also that the company that has for instance been dumping aforementioned chemicals into waters has been squeeky clean about recording these things.

Re:This is the way the system works (1)

Peyna (14792) | more than 8 years ago | (#16075325)

Rule 11 does not apply to discovery. There are separate sanctions in regards to discovery violations, but none of them are criminal (nor are Rule 11 sanctions criminal).

Re:This is the way the system works (1)

BGraves (790688) | more than 8 years ago | (#16075362)

No, but it does apply to filing the lawsuit in the first place. Also, the reference to criminal would be contempt of court for not allowing full discovery.

So...to continue the train of thought we all have (4, Interesting)

StressGuy (472374) | more than 8 years ago | (#16075185)

It kinda looks like we all see it the same way, i.e. - this guy just "called the RIAA's bluff".

So, now the RIAA wants permission to search for the evidence the clearly never had in the first place. Alright, my question is, can this guy go back to the judge with "Given that I was summoned to appear here on the pretext of compelling evidence that we now know the RIAA does not posses, and given that I am not prepared to waive my right to a speedy trial while they are given additional time to find this evidence, can we just dismiss this and all go home?"

Also, can I counter-sue for lost time, lost wages, added stress, etc.?

but, of course, IANAL (besides being ANAL, I'm not a lawyer either ;))

During the search (1)

nurb432 (527695) | more than 8 years ago | (#16075215)

He better hope he's 100% clean While with the case at point he may be safe, what if his daughter copied a Brittany spears album down and there is no proof of purchase?

Who is 100% clean in this world, we ALL have something we can be nailed for if one searches hard and long enough. And the RIAA/MPAA/BSA/HSD/whatever has the time and money to grind you into the ground finding that one shred of evidence that can put you away. Unless of course you give up along the way, like most of the common folk have to do.

And OT: i don't think you can countersue ( and win ) unless the case is declared frivolous. If they had enough evidence to warrant the suspicion ( and they do ), then i doubt you can sue. ( if im wrong im sure ill be corrected several times )

Re:During the search (0)

Anonymous Coward | more than 8 years ago | (#16075252)

and they do

Anyone remember the time the MPAA sent a C&D to an ftp site hosting a tarball of the X-Filer source?

I think you're being overly optimistic. It's quite possible that they are simply picking names out of the phone book and hoping that they're not "clean". Of course, the only dirt that helps them is downloading music illegally, and there are many people who are "clean" in that respect: grandmas with no computers, audiophiles who think digitization destroys the soul of the music who still use vinyl, and so on. I hear there are even people who still buy CDs.

Re:During the search (-1, Offtopic)

RKBA (622932) | more than 8 years ago | (#16075349)

That's nothing, my stereo amplifier has six vacuum tubes! Really.

In fact, it's a recent purchase from Ideal Innovations at http://www.idealinnovations.biz/ [idealinnovations.biz] and sounds great. :-)

Re:During the search (1)

JonathanR (852748) | more than 8 years ago | (#16075344)

I would have thought that the RIAA would have to have something specific they are looking for. The IP address that they are waiving around must have been associated with a particular action and a particular file. Otherwise the discovery in this case is tantamount to self incrimination.

Re:During the search (1)

ceoyoyo (59147) | more than 8 years ago | (#16076061)

Format his hard drives and find an old wireless router with easily cracked WEP. No, your honor. It wasn't me. Perhaps someone hacked my router. I turned on the security, but it seems it was defective. It's made by a subdivision of Cisco, if that helps....

Re:So...to continue the train of thought we all ha (1)

spiritraveller (641174) | more than 8 years ago | (#16075266)

There is no such thing as a right to speedy trial in a civil suit. It only applies to criminal cases.

Also, can I counter-sue for lost time, lost wages, added stress, etc.?

Probably not. First, you aren't going to lose any wages unless you have to take time off from your job. There's no reason you would have to do that unless it actually went to trial.

Stress, distress, etcetera are awardable in situations where your leg gets cut off or you watch your kid get run over by a car. But they are not awardable simply because someone gave you something to worry about. In other words, emotional damage is very hard to prove, so the law doesn't allow it in most cases. It's only allowed in cases where there is some sort of severe physical impact on you or a loved one in your presence.

Re:So...to continue the train of thought we all ha (1)

Wylfing (144940) | more than 8 years ago | (#16075375)

I am not prepared to waive my right to a speedy trial

That's not a right that is relevant here. The U.S. Constitution codifies a right to a speedy trial for criminal cases, not civil matters. This right exists to prevent the government from accusing you of a crime, putting you behind bars, and then delaying the proceedings until you've served 15 years (thereby circumventing your right to be tried for your crime). A civil case, on the other hand, can go on as long as either party is willing to fight.

can I counter-sue for lost time, lost wages, added stress, etc.?

Sure! Remember what I just said about dragging it out as long as you want to fight?

Re:So...to continue the train of thought we all ha (1)

tomphaedrus (661561) | more than 8 years ago | (#16075694)



From the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..."

You have no "right to a speedy trial" in a civil suit.

Re:So...to continue the train of thought we all ha (1)

nsayer (86181) | more than 8 years ago | (#16076054)

my right to a speedy trial

Not a criminal trial, thus no right to a speedy trial.

As if (1)

MECC (8478) | more than 8 years ago | (#16075189)

"does not have sufficient evidence"

As if they ever did, ever have, or ever will.

I suppose they want exclusive access to his hard drive so they can find an MP3 file somewhere.

"He only had a few of the songs from exhibit B [the screenshot] on his computer, and those were from legally purchased CD's owned by Mr. Wilke"

Good god - screenshots (which are very hard to fake your honor). This circus of a crusade gets increasingly stupid with each instance of accusation.

--

Ooo look your honor - MP3's! He's guilty! He's guilty!

Blashphemer! Blasphemer! Stone him! ... Wait a minute - there aren't any woman here are there?

(women wearing beards respond with voices as low as they can) No no - no women here...

Re:As if (0)

Anonymous Coward | more than 8 years ago | (#16075858)

Well, you did say jehova

Since there seem to be some questions (5, Informative)

cpt kangarooski (3773) | more than 8 years ago | (#16075223)

Before filing the suit, RIAA must have gathered some amount of evidence which led them to believe that the defendant was breaking the law to begin with. However, this could be very little evidence, far less than would actually be needed to prove it in court. This is because once you file a suit, you then get to engage in discovery so as to get sufficient evidence. All you need in order to file, pursuant to Rule 11 is "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."

Having filed, they're entitled to gather evidence more easily, by getting testimony, physical evidence, etc. They generally have a right to gather it for the suit, rather than merely asking for it. Federal civil trials in the US are big on discovery. The idea is that there should be no surprises in court; both sides will have ample opportunity to determine precisely what happened. Hopefully, there won't even be a dispute over the facts, making the trial go faster, and ideally it'll get the parties to settle or the case to get dropped, since court time is a valuable commodity.

In any event, what has happened here is that the defendant has filed for summary judgment to dismiss the case. In a trial, there are questions of fact (e.g. did A stab B?) and questions of law (e.g. is it against the law for A to stab B?). In a summary judgment motion, the moving party is saying that there are no questions of fact which will have any bearing on the case, or some portion thereof. Therefore, the case (or the portion of the case for which summary judgment is sought) can be decided by the judge immediately, based purely on the law and the facts for which there is no question. (e.g. A and B agree that A stabbed B, so accepting that, the only issue is whether it was against the law, not whether it happened)

However, often both sides will dispute whether there are material factual questions remaining or not, that is, whether there are disputed facts where a reasonable jury could go either way, and which are important to the case. For instance, if A says that the knife was a toy knife, and B disagrees, this is likely material. But a dispute over the color of the knife likely is not.

Here, defendant is asking for summary judgment because he says RIAA sued the wrong person, and anyway, he didn't infringe. RIAA is saying that they need to gather more evidence so that they can show it to the judge, show that there are material questions of fact which are in dispute, and that they should go to a jury. In order to do this, they need to engage in discovery to find out some of these facts, since they weren't required to have them prior to filing the suit. N.b. that all RIAA has to do is show that there are still issues that need to go to a jury -- they do not need to show that the jury would find in their favor, or that they'd win the eventual case. Even highly disreputable and unbelievable evidence is sufficient to defeat the motion if a reasonable jury might believe it. In summary judgment matters, the court will look at all the facts in the light most favorable to the non-moving party, who is in this case, RIAA. This is because it's the moving party that wants no trial, and so should be required to prove it. The moving party isn't allowed to use summary judgment as a railroad to get the case dismissed before crucial evidence can be gathered, as that would run contrary to the rules allowing for discovery and setting the low threshold for filing.

Honestly, this is all fairly ordinary stuff. I don't think it's really news.

There should be a quid pro quo (0)

Anonymous Coward | more than 8 years ago | (#16075288)

A low threshold for evidence to bring a suit means it is much easier to bring a frivolous action. http://en.wikipedia.org/wiki/Frivolous_lawsuit [wikipedia.org] So, how about this; if you sue someone and discovery doesn't produce sufficient evidence, you have to pay big damages. It should be automatic. In special cases (like the guys at SCO for instance) it should involve jail time.

The RIAA has abused the legal system. They use the threat of legal action to steal people's life savings and school tuition because most folks can't afford to defend themselves. The RIAA gets away with it because there is no punishment for what they're doing. There should be.

Re:Since there seem to be some questions (0)

Anonymous Coward | more than 8 years ago | (#16075343)

No, this is not a criminal trial. It is a civil suit. Before trial, the RIAA must have gathered some IMPRESSION which led them to believe that the defendant CAUSED THEM LEGALLY COMPENSIBLE DAMAGES.

WARNING! DON'T READ PARENT POST (3, Funny)

hyfe (641811) | more than 8 years ago | (#16075571)

Atleast if you don't enjoy have mean men in black suits knock on your door.

He admits himself in his own signature that he's giving out illegal advice. Illegal advice!

- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.

Everybody's chasing something (0)

Anonymous Coward | more than 8 years ago | (#16076085)

Some lawyers chase ambulances.

I guess you guys chase lawyers.

This is the purpose of discovery (5, Insightful)

nenya (557317) | more than 8 years ago | (#16075240)

When a plaintiff files suit in court, it does not necessarily need to have all of the evidence it needs to win. This is the purpose of the discovery phase of a lawsuit.

If a plaintiff believes it has been wronged but the information necessary to sufficiently prove their case is somehow privileged, there is no way for them to possess that information as evidence without discovery. That's why it's called "discovery". Plaintiffs frequently believe that internal documents or sworn testimony of the defendant will prove their case, but without discovery, they will never be able to read those documents or obtain that testimony.

In this case, the RIAA needs access to defendant's computer to prove its case. It has no such access without a subpoena, which it cannot obtain without a lawsuit. Plaintiff has filed that lawsuit and is now asking the court for permission to obtain the evidence needed to prove it.

I would be very surprised if the court denied their motion.

The best content is free anyway (-1, Troll)

Anonymous Coward | more than 8 years ago | (#16075241)

I don't know why people obsess over corporate artists.
They suck anyway...

Check out the ukulele player on this page:

http://home.comcast.net/~plutarch/videos.html [comcast.net]

Comma Chameleon (1)

Doc Ruby (173196) | more than 8 years ago | (#16075242)

"Plaintiffs cannot at this time, without an opportunity for full discovery present by affidavit facts essential to justify their opposition to Defendant's motion."

They mean "Plaintiffs cannot at this time, without an opportunity for full discovery, present by affidavit facts essential to justify their opposition to Defendant's motion."

Without that extra comma, the "present" they wrote has the accent on the first syllable, meaning "now", rendering their statement grammatically incorrect and nonsense. With the comma, they have produced at least a lame excuse for the judge to let them really invade the defendant's life.

The judge should throw out the case. And free DVDs for everyone!

So (1)

popsicle67 (929681) | more than 8 years ago | (#16075246)

This means that Prima Facia doesn't exist for the RIAA either. D.A.'s all over the country will jump for joy if this passes muster.

Re:So (1)

arashi no garou (699761) | more than 8 years ago | (#16075431)

This is civil court, not criminal court. District Attorneys don't care.

Very Funny (5, Interesting)

beadfulthings (975812) | more than 8 years ago | (#16075261)

I notice in reading the .pdf version of the motion that the RIAA lawyers didn't even have the man's name right in their initial filing of the lawsuit. His own attorney had to straighten that out. I'm glad Mr. Wilke's pockets are deep enough that he can afford astute legal counsel who knows how to handle a fight like this. I suspect that's not the case for the single mothers, recently-bereaved orphans, and elderly grandparents who are the RIAA's usual prey.

It's disconcerting to think they can sue when they have no real evidence that they've been injured. I suspect they do this more often than not. Let's hope this motion succeeds and that other defendants and lawyers take note of it.

Re:Very Funny (1)

NewYorkCountryLawyer (912032) | more than 8 years ago | (#16075772)

Neither you nor I know that Mr. Wilke's "pockets" are "deep". Most likely his lawyer, Daliah Saper [saperlaw.com] , of Chicago, is taking her chances here, and not receiving her normal compensation.

Buy Cheap Meds online! (0, Offtopic)

Anonymous Coward | more than 8 years ago | (#16075338)

This is part of an experiment [slashdot.org] to see how this post mod'ed with a spammish title. You shouldn't mod this as troll if you have actually read this text...it's for science.

Re:Buy Cheap Meds online! (1, Funny)

Anonymous Coward | more than 8 years ago | (#16075891)

Buy Cheap Meds online!

Anyone who misspells "M3ds" probably doesn't have the V1agra I want.

so, simply put... (1)

JustNiz (692889) | more than 8 years ago | (#16075944)

A) They got the wrong guy in the first place
b) They have no evidence
C) Because A) and B) are true, they need time to scour this guy's life to find something, anything, to pin on him so the RIAA don't look stupid (again).

RIAA vPRO with pro-active lawsuit technology (0)

Anonymous Coward | more than 8 years ago | (#16076029)

Damn, I had to look at this Intel vPRO advertisement...

RIAA vPRO technology bring you pro-active lawsuit in order to maintain your bussiness always running.

Tin tin tin tin - RIAA vPRO available right now on the Intertube.
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