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Florida Judge Smacks Down RIAA

kdawson posted more than 6 years ago | from the which-part-of-no dept.

The Courts 301

NewYorkCountryLawyer writes "The RIAA is going to have to face the music in Tampa, Florida, and answer the charges of extortion, trespass, conspiracy, unlicensed investigation, and computer fraud and abuse that have been leveled against them there. And the judge delivered his ruling against them in in pretty unceremonious fashion — receiving their dismissal motion last night, and denying the motion this morning. The RIAA's unvarying M.O., when hit with counterclaims, is to make a motion to dismiss them. It did just that in one Tampa case, UMG v. Del Cid, but the judge upheld 5 of the 6 counterclaims. The RIAA quickly settled that one. When a new case came up in the same Tampa courthouse before the very same judge, and the same 5 counterclaims were leveled against the record companies, I opined that 'it is highly unlikely that the RIAA will make a motion to dismiss counterclaims,' since I knew they'd be risking sanctions if they did. Well I guess I underestimated the chutzpah — or the propensity for frivolous motion practice — of the RIAA lawyers, as they in essence thumbed their nose at the judge, making the dismissal motion anyway, telling District Judge Richard A. Lazzara that his earlier decision had been wrong. The judge wasted no time telling the record companies that he did not agree (PDF)."

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301 comments

Pfft... (5, Insightful)

geminidomino (614729) | more than 6 years ago | (#23316464)

Call me when Boyer refuses to settle and we finally get a decision on this.

Until then, BFD.

Re:Pfft... (1, Funny)

Anonymous Coward | more than 6 years ago | (#23317266)

I particularly liked the IP address listed. Maybe it was incomplete to "protect" her online identity. ...

Plaintiffsâ(TM) agent, MediaSentry, Inc., determined that the individual used Internet Protocol (âoeIPâ) address 131.247.210 to connect to the Internet.

Re:Pfft... (4, Funny)

Nullav (1053766) | more than 6 years ago | (#23317842)

131.247.210.* - Guilty by association!

Opps (5, Funny)

Ceiynt (993620) | more than 6 years ago | (#23316466)

Hi. I'm the judge in this courtroom. I told your ass to get out of here once. you didn't listen. You came back with the same complaint. Guess what happens. I deny any and all settlement offers you offer to the counter-claimer. I will make it pretty damn clear this time your crap will not be welcome in this courtroom again. Prepare for contempt processes. Oh ya, I'm gonna make sure they put you in the same cell as a guy who likes to steal car steroes.

First post (-1, Redundant)

Anonymous Coward | more than 6 years ago | (#23316470)

Haven't had one in a while! : D

Re:First post (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#23317174)

Looks like your streak continues...

More pro-piracy bullshit (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#23316472)

from your local friend of thieves always peddling his dubious services here at slashdot, where the people who make the movies we watch are scum, and the people who think the world owes them a living a welcome.
Stop fucking stealing and you wont need the services of the ambulance chasing dick who submits all this biased bullshit.

Re:More pro-piracy bullshit (5, Funny)

DanWS6 (1248650) | more than 6 years ago | (#23316544)

Agreed. The RIAA should be allowed to break the law and use illegal practices to bring all those horrible copyright infringer's to swift and brutal justice. The RIAA's clients are literally losing TRILLIONS of dollars to people who are worse than terrorists. Personally I think RIAA should be able to hire mercenaries to rid the earth of such scum.

Re:More pro-piracy bullshit (5, Funny)

n dot l (1099033) | more than 6 years ago | (#23317194)

Personally I think RIAA should be able to hire mercenaries to rid the earth of such scum.
Are you kidding? Comparing them to terrorists? Mere terrorists?! You want us to use mercenaries?! Christ, next thing you'll be wanting us to liberate them from their evil P2P overlords, or reform them, or stop antagonizing them by meddling in their culture, or something.

No, these scum are far worse than terrorists; they are a plague, an infectious disease that destroys all it touches. Unrelenting, incurable. Even the courts are at their mercy. Mercenaries are not enough, here. Entire armies are insufficient. Not even the Spanish Inquisition (which nobody expects), could handle this. No, they must be wiped out from orbit, with nukes. It's the only way to be sure.

Signed,
The RIAA:
Creators of the Culture,
Bearers of the Truth,
Defenders of the Civilization,
Champions of Liberty,
Dearer than Life Itself,
Dread Rulers of the Abyss (in a good way, we assure you),
Awesome Enough to Have Many Many Titles,
Your Beloved Content-Owning Overlords.

Re:More pro-piracy bullshit (4, Funny)

Lumpy (12016) | more than 6 years ago | (#23317818)

You missed the update. The RIAA and poor recording artists are losing Quadrillions of dollars a second. In fact it's so bad that bands are now resorting to cannibalism. Metallica Ate DEO's drummer and bass guitarist. and Nobody has seen Robert Palmer for a few weeks.

Re:More pro-piracy bullshit (-1, Troll)

Anonymous Coward | more than 6 years ago | (#23316566)

You clearly haven't followed the issue very well as evidenced by your total lack of understanding, so I have two words for you: fuck off. kthxbai

Re:More pro-piracy bullshit (0)

Anonymous Coward | more than 6 years ago | (#23317178)

You mean you have three words for him. Three.

Re:More pro-piracy bullshit (5, Insightful)

houstonbofh (602064) | more than 6 years ago | (#23316584)

(Quoted for when the OP is modded -1 Troll a few times...)
from your local friend of thieves always peddling his dubious services here at slashdot, where the people who make the movies we watch are scum, and the people who think the world owes them a living a welcome. Stop fucking stealing and you wont need the services of the ambulance chasing dick who submits all this biased bullshit.

I would submit that all the false positives that the RIAA has ensnared were not protected by being innocent. Defending yourself from a wrongful prosecution is very expensive in this country. A fact that the RIAA uses to its advantage.

Re:More pro-piracy bullshit (5, Insightful)

slashname3 (739398) | more than 6 years ago | (#23317012)

You are correct. Innocence is no defense. While you may be presumed innocent until proven guilty the simple fact that you have been pulled into court before a judge and charged with a crime leaves a an indelible stench of guilt on you.

I recently listened to a defense attorney spend considerable time schooling potential members of a jury in the difference between innocence and not guilt. He apparently was going for the not guilty verdict even though his client participated in the car jacking willingly. Most amazing speech I had heard in a long time. I think he was actually going to argue that his client just went along due to peer pressure and wanted to fit in.

I learned a long time ago that in the court room the judge and attorneys involved are not interested in the truth, the facts, or with dispensing justice. They are there to tell a story and put on an act to convince the jury that their side is telling a better story than the other side.

It reminds me a lot of survivor at the end where the remaining contestants tell a story to convince everyone in the jury to vote them the money.

Re:More pro-piracy bullshit (4, Insightful)

snowraver1 (1052510) | more than 6 years ago | (#23317294)

I learned a long time ago that in the court room the judge and attorneys involved are not interested in the truth, the facts, or with dispensing justice. They are there to tell a story and put on an act to convince the jury that their side is telling a better story than the other side.


Not quite, the Lawyer and Procecutor are each telling thier side. The prosecutor goes first and tries to make the defendant seem like the most vile person ever to walk the earth. Then it's the Lawyer's turn to make the defendant look like an angel and to make the procesutor look like he doesn't know anything.

Many people at this point would think that this is silly, and nothing more than a show. It was always put to me this way: It's not a lawyers job to determine if thier client is innocent or not, that is the judge/jury's job. The lawyers job is to put the defendant in the best possible light, and to ensure that a fair trial is being conducted.

Re:More pro-piracy bullshit (4, Interesting)

Spy der Mann (805235) | more than 6 years ago | (#23317358)

I learned a long time ago that in the court room the judge and attorneys involved are not interested in the truth, the facts, or with dispensing justice. They are there to tell a story and put on an act to convince the jury that their side is telling a better story than the other side.


One movie that describes this perfectly, is "my cousin vinny". In the movie, Ralph Macchio of Karate Kid interprets a teenager who just happened to buy something at a store where 5 minutes later the clerk was shot.

The district attorney hired a wonderful lawyer that moved the hearts and minds of everyone. Fortunately, the kid's cousin, Vinny, the most inefficient lawyer on earth, happened to save the day by presenting the facts to the jury (and add a lot of fun with his irreverence).

One of my favorite movies, btw.

Re:More pro-piracy bullshit (1)

NormalVisual (565491) | more than 6 years ago | (#23317548)

"What's a yute?"

Re:More pro-piracy bullshit (1)

Spy der Mann (805235) | more than 6 years ago | (#23317302)

where the people who make the movies we watch are scum


Whoa, you just reminded me of the Resident Evil and Silent Hill movies.

Re:More pro-piracy bullshit (4, Funny)

sm62704 (957197) | more than 6 years ago | (#23316640)

What's the matter, son, the judge upheld all the counterclaims against you? If you litigate as badly as you troll, you're in deep doo-doo.

Re:More pro-piracy bullshit (1)

UncleTogie (1004853) | more than 6 years ago | (#23317076)

Hey, AC... Tell us why you think that a deaf guy that wants to decrypt legally bought DVDs so he can watch them on his PC, WITH headphones {as not to garner noise complaints from the neighbors} is a thief.

Jerk.

Re:More pro-piracy bullshit (2, Funny)

Mr Abstracto (226219) | more than 6 years ago | (#23317474)

Why does a deaf guy need headphones?

Re:More pro-piracy bullshit (1)

UncleTogie (1004853) | more than 6 years ago | (#23317608)

Why does a deaf guy need headphones?

Read that as "severely deaf", at 70% loss. In other words, for every 10 words spoken to me, I hear three....

"Fuzzy Wuzzy was a woman?!?" ;)

Re:More pro-piracy bullshit (3, Interesting)

Anonymous Coward | more than 6 years ago | (#23317480)

How about one better. There are probably dozens of ways to do this, I would do with with Windows Vista Premium / Ultimate 64bit and an xbox 360. But you can do it with Apple TV, myth et al. I would like to load all of my DVDs onto 1 server and just stream that shit to my tv. Fuck opening DVD cases. It would be much better to leisurely watch all of MASH, or Dead Like Me, or whatever 1 or two episodes when the mood strikes, and not having to remember which episode/disc I was on. And while I'm at it, the NFL doesn't provide a DVD yearbook for each team (apparently they hate money), but think of the possiblity of that, a whole lifes worth of passive entertainment and slice of culture really on one server at the touch of a remote. The RI/MPAA says that's illegal and I should be punished. For using technology that already not only exists but is trivial to setup (aside from the nusiance of DVD ripping, which itself could be far less of a mess) my livelyhood, my future should be in jeopardy? This is how market forces are supposed to work? To prevent the embracing of wealth and progress, largely for sake of the poor math skills and emotional convenience of people who obviously don't know how to manage their businesses?

The only just, sanction as far as I'm concerned, when such entities as the media companies overstep their bounds is to have the disputed properties placed in the public domain. The use of the works can still be tracked, and the companies that lost their rights to control the works can still be on the hook for all the royalty payments. If they're going to endanger people's livelyhood with their mistakes, it's only fair that their own hangs in the balance.

Re:More pro-piracy bullshit (3, Funny)

spun (1352) | more than 6 years ago | (#23317250)

You wouldn't perchance be that certain talentless hack of a lawyer that NYCL has humiliated before, would you? Maybe you weren't cut out to be a lawyer, you know I hear KFC is hiring.

Re:More pro-piracy bullshit (1, Funny)

Anonymous Coward | more than 6 years ago | (#23317772)

from your local friend of thieves always peddling his dubious services here at slashdot, where the people who make the movies we watch are scum, and the people who think the world owes them a living a welcome
Epic punctuation/grammar fail.

I'm curious (4, Interesting)

Tanman (90298) | more than 6 years ago | (#23316494)

I'd like to see a statement by the judge or other qualified individuals detailing why they didn't get sanctioned for this (mostly for curiosity -- the legal process is obtuse and interesting). It seems like the RIAA lawyers took a big risk in submitting the same info to the same court.

Re:I'm curious (0)

Anonymous Coward | more than 6 years ago | (#23316570)

RIAA lawyers didn't get sanctioned for the same reason that sharks don't bite lawyers -- professional courtesy. You have to be a lawyer before you can be a judge!

Re:I'm curious (5, Insightful)

Anonymous Coward | more than 6 years ago | (#23316666)

I've known some lawyers who talked about the degree of animosity that exists between lawyers and judges.

A lawyer spends several decades suffering various forms of abuse and condescension at the hands of the judges he/she faces with every case ... then by the time their turn comes to sit on the bench, they are so thoroughly bitter and full of spite they simply can't wait to unload gallons of the same kind of poison on the next batch of lawyers who come in front of them.

Re:I'm curious (5, Interesting)

Ungrounded Lightning (62228) | more than 6 years ago | (#23317350)

IANAL but I'll take a guess.

The two items - ruling on the motion and imposing sanctions - though fallout from the same act by the plaintiff lawyers, are separate. I'd bet the judge issued the ruling quickly in the interest of justice, to spare the defendant additional delays and lawyer costs. Rule 11 sanctions, if the distinguished jurist decides to impose them, may be along later.

Given that there was a change in one of the counterclaims and an extra pleading by the RIAA, perhaps the judge doesn't think the motion was TOTALLY out-of-line. Or perhaps, now that he's given them some more rope, he's sitting back quietly while the RIAA's lawyers continue to demonstrate a pattern of abuse of process, in case they come up with some clearer examples. Since that's one of the counterclaims, perhaps the judge thinks a better sanction than spanking them early with Rule 11 (and perhaps deter their activities in THIS trial) is to add this (and any future frivolity) to the list of misdeeds when considering the amount to award on that claim.

Wouldn't justice be better served if they have to pay the price of their bullying to the defendant? B-)

Re:I'm curious (4, Interesting)

KutuluWare (791333) | more than 6 years ago | (#23317590)

NYCL's optimism not withstanding, lawyers getting sanctioned for misbehavior isn't nearly as commonplace as you would hope, or as the summary would suggest. It takes a lot for a judge to decide that a lawyer's behavior was so blatently illegal that they need to be sanctioned. Overall, I think that's a good thing, otherwise lawyers may be too concerned about sanctions and potentially ignore possible legal avenues that may benefit their client. In this case, the RIAA's lawyer's supporting memorandum is pretty ballsy to flat out tell the judge he was wrong, but lawyers do that kind of thing all the time. For example, that's basically the definition of an appeal -- "Judge, you screwed up, let me show you how with sufficient evidence to change your mind." If the law firm really did, in what passes for "good faith" in civil law, believe that the judge's prior ruling was flawed, they had every right to submit a motion saying so, with evidence, which they did.

I mean, look for much crap the SCO legal team has gotten away with without so much as a slap on the wrist (yet). And look how long it took Jack Thompson to get sanctioned for acting like a blatant lunatic.

--K

Re:I'm curious (5, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23317704)

lawyers do that kind of thing all the time
I disagree. Lawyers will occasionally, and very rarely, delicately 'respectfully take exception' to a ruling or respectfully call to the judge's attention something they feel he or she might have 'overlooked', but I have never seen a brief which simply tells a judge that the decision -- which he himself decided -- was "wrongly decided". Take a look at pages 28-30 of the brief, where they tell Judge Lazzara, that his prior decision was "wrongly decided", and tell me if you've ever seen anything so insulting to a judge.

Re:I'm curious (4, Interesting)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23317744)

And it was crazy to waste the judge's time with 28 pages of repetition from the prior motion papers. If they wanted to preserve their arguments legally, they should have put in 1 sentence 'incorporating by reference' the arguments which they'd made, and which the judge had rejected, in the earlier case. What they did here was flagrantly incompetent.

In the End, It Doesn't Matter (3, Insightful)

CWRUisTakingMyMoney (939585) | more than 6 years ago | (#23316506)

The problem is, the RIAA can get sued and convicted into oblivion, but all the RIAA is is a shell corp for the big record companies. The record companies themselves won't have to answer for this, and if RIAA is legally forced under, the record companies will just make another shell corp to cover their asses. This will only truly matter when someone sues the record companies themselves.

Re:In the End, It Doesn't Matter (5, Interesting)

Orange Crush (934731) | more than 6 years ago | (#23316596)

The plantiffs in this case are "Alantic Recording Group, etc. et al" so it looks like the actual RIAA member company/companies are on the hook for this.

Re:In the End, It Doesn't Matter (5, Informative)

Skye16 (685048) | more than 6 years ago | (#23316622)

Very much so wrong. Look at who brought the suit the first time: UMG.

The individual record companies have to sue; the RIAA just does the legwork for "finding" who "made files available" and hands it off.

Re:In the End, It Doesn't Matter (1)

sm62704 (957197) | more than 6 years ago | (#23316738)

The record companies themselves won't have to answer for this

Actually, they will. It isn't "RIAA vs Del Cid" it's "UMG v. Del Cid". UMG is the record company that filed suit, not the industry association.

Re:In the End, It Doesn't Matter (3, Informative)

Tenebrousedge (1226584) | more than 6 years ago | (#23317050)

This has been answered by others, but it's worth noting that the reason why this doesn't involve the RIAA is because the RIAA doesn't hold the copyrights involved. It's beginning to seem like copyright law is unenforceable...

Re:In the End, It Doesn't Matter (3, Informative)

Sancho (17056) | more than 6 years ago | (#23317582)

Copyright appears to be largely unenforceable on pseudo-anonymous networks, due in part to the difficulty of gathering evidence on these networks. This will only lead to the members of the RIAA buying stronger laws which either allow a suit for weaker evidence, or allow seizure of computer equipment in order to gather evidence of copyright infringement. In the latter case, such a law is already making its way through the congressional process.

Re:In the End, It Doesn't Matter (3, Insightful)

Stanislav_J (947290) | more than 6 years ago | (#23317826)

Copyright appears to be largely unenforceable on pseudo-anonymous networks, due in part to the difficulty of gathering evidence on these networks. This will only lead to the members of the RIAA buying stronger laws which either allow a suit for weaker evidence, or allow seizure of computer equipment in order to gather evidence of copyright infringement. In the latter case, such a law is already making its way through the congressional process.

And who is going to do the actual "seizing" of the equipment? Feds? Local gendarmes? (I can imagine that will go over big in some jurisdictions.....devoting time and manpower to seizing some geek's equipment for sharing music...) What happens if no infringing material is found? (A real possibility given some of the RIAA's other faux pas in the past.) Can the victim turn around and sue them? Will this be like the seizure/forfeiture laws under the War on Drugs in which they take your assets on the merest suspicion, then if you are not guilty, you have to jump through 197 legal hoops to even have the remotest hope of getting your stuff back?

I'm waiting for someone in guvmint to start making the argument that sharing copyrighted music is a terrorist act intended to undermine the economy of the U.S. Then they'd also get to use the Patriot Act, warrantless wiretapping, and all those other fun tools to nail file sharers to the wall.....Yes, postulating that scenario should by all rights be a sign of disturbed paranoia, but the way things are going.....

Mass mailing don't work (3, Funny)

techpawn (969834) | more than 6 years ago | (#23316518)

The same process you use to mass mail your legal complaints can not be used to file your legal responses. This is why fellas. This case is going to get messy *grabs popcorn*

chutzpah? (1)

sm62704 (957197) | more than 6 years ago | (#23316530)

I'm only a layman, but it sure looks like more than chutzpah. Could the lawyers involved be disbarred? Could anybody actually see the inside of a cell over this?

Re:chutzpah? (5, Insightful)

nuzak (959558) | more than 6 years ago | (#23316902)

> Could the lawyers involved be disbarred?

No.

> Could anybody actually see the inside of a cell over this?

No.

Not even sanctions. Really. Seriously, people, I know you've all been whipped into a frenzy and want to see the public executions of every spouse and child of every clerk and paralegal of every law firm who's ever done business with the RIAA, but all that happened was that the plaintiffs made a useless motion, and the judge gave it the due consideration it deserved, which was nothing. Trust me when I say that no baby seals were clubbed in the process.

If anything, UMG should be pissed that their legal team phoned it in when it came to this motion. These are pretty serious counterclaims and they don't appear to be taking them seriously. Hubris does that I guess.

Re:chutzpah? (5, Insightful)

Anonymous Coward | more than 6 years ago | (#23317644)

Disbarred, NO

Sanctioned, Yes

Actual misbehavior by lawyers and their clients is decidedly unfunny. That is the message of Rule 11, Federal Rules of Civil Procedure. This is the law that obligates the federal courts to impose sanctions on lawyers and clients who file and pursue lawsuits in unreasonable ways. Rule 11 breaks with precedent that required proof of bad faith to trigger sanctions. Unreasonableness is a lighter trigger that has proven beneficial to persons burdened by lawyer and client misbehavior. By the way, sanctions is legal terminology for getting your expenses back in some degree from an attorney or party who did you wrong in a lawsuit.

WHAT REMEDY RULE 11 PROVIDES

Rule 11 prescribes sanctions for certain basic misdeeds: (1) the filing of a frivolous suit or document; (2) the filing of a document or lawsuit for an improper purpose; (3) actions that needlessly increase the cost or length of litigation.

Relevant parts of the rule are these:

The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee (emphasis added).

Sanctions may apply against an attorney, the client, or both; therefore, we have adopted the collective convention, attorney/client.

Defendants not even asked! (5, Interesting)

gnasher719 (869701) | more than 6 years ago | (#23316556)

That is fascinating. The judge got a motion from the RIAA to dismiss the defendant's counterclaims, and he didn't even bother to give the defendants a chance to reply! Instead he saved them the cost for their lawyers and rejected the RIAA's motion to dismiss without causing any work for the defendants. I just wonder how unusual that is.

Re:Defendants not even asked! (3, Interesting)

LostCluster (625375) | more than 6 years ago | (#23316768)

IANAL, but that almost defines "frivious." The judge didn't need to hear from the plantiffs (those targeted by the RIAA) because the motion to dismiss by the RIAA was so bad, and so close to one he's rejected already, he could supply the rejection logic himself.

As Keith Olbermann reminds viewers of "Countdown" regularly, the technical definition of "insanity" is trying the same thing repeatedly and expecting different results.

Re:Defendants not even asked! (5, Funny)

Wandering Wombat (531833) | more than 6 years ago | (#23316922)

IANAT, but if that's really the definition of "frivious", my dictionary is missing a word.

Re:Defendants not even asked! (4, Funny)

RobBebop (947356) | more than 6 years ago | (#23317094)

As Keith Olbermann reminds viewers of "Countdown" regularly, the technical definition of "insanity" is trying the same thing repeatedly and expecting different results.

I've seen that quote attributed to Ben Franklin, but I am sure that Olbermann could have very easily been the originator.

Re:Defendants not even asked! (2, Insightful)

Anonymous Coward | more than 6 years ago | (#23317134)

"...is trying the same thing repeatedly and expecting different results."

With almost limitless resources you can try the same tired old arguments with the hopes you will get a different result from someone asleep at the wheel -- the positive results of that one difference outweigh the penalties.

It's not insanity, it's strategy -- your resources beat the other's, it has nothing to do with the argument or strength thereof.

Re:Defendants not even asked! (1)

R2.0 (532027) | more than 6 years ago | (#23317192)

"As Keith Olbermann reminds viewers of "Countdown" regularly, the technical definition of "insanity" is trying the same thing repeatedly and expecting different results."

IIRC, the original source for that is the Alcoholics Anonymous "Big Book". You'd be surprised how many sayings from that tome have made it into the vernacular: easy does it, one day at a time, etc.

Oh, and it's definitely NOT the "technical definition". At least, I'm pretty sure that's not what's in the DSM.

Maybe they where programers (0)

Anonymous Coward | more than 6 years ago | (#23317276)

for (i=0;i>-1;i++);

And by that logic:

while (lawsuit!=ganted) lawsuit++;

Re:Defendants not even asked! (3, Funny)

QMO (836285) | more than 6 years ago | (#23317300)

. . .trying the same thing repeatedly and expecting different results
That's also a very close approximation of the definition of chaos theory.

Re:Defendants not even asked! (0)

Anonymous Coward | more than 6 years ago | (#23317352)

.. or just tossing a coin ;)

Re:Defendants not even asked! (4, Insightful)

Chris Burke (6130) | more than 6 years ago | (#23317304)

As Keith Olbermann reminds viewers of "Countdown" regularly, the technical definition of "insanity" is trying the same thing repeatedly and expecting different results.

That "definition" has always bothered me, as I would find those considered "sane" under that definition to be extremely crazy themselves.

How crazy would you have to be to think that your previous actions would have no impact on future attempts?

If you swung an axe at a door and made a small chip, which would be more insane: Thinking that the next or subsequent blow would put the blade entirely through the door, or thinking that you could swing the axe at the door all day and do nothing but make small cuts?

It is very rare in real life that a certain event has the "memoryless" property (i.e. the outcome is based only on that event, not on the outcome of any previous events). That's a special case, not the general rule.

Look at this case. They tried the same thing, and got a different result: Their motion was dismissed even more rapidly than before. If they keep trying this, it is highly unlikely that the outcome would be the same each time; eventually they would be found in contempt. Judges in particular do not often suffer from being "memoryless". :)

Re:Defendants not even asked! (0)

Anonymous Coward | more than 6 years ago | (#23317314)

As Keith Olbermann reminds viewers of "Countdown" regularly, the technical definition of "insanity" is trying the same thing repeatedly and expecting different results.
Isn't this the description of the "scientific method"?

Re:Defendants not even asked! (3, Insightful)

mlwmohawk (801821) | more than 6 years ago | (#23317356)

As Keith Olbermann reminds viewers of "Countdown" regularly, the technical definition of "insanity" is trying the same thing repeatedly and expecting different results.

That isn't really a very good definition, unless everyone is insane. Even though coined by Benjamin Franklin, it completely defines many "normal" behaviors.

Rolling dice
Slot machines
Voting
Dating
Software Debugging
New Year's resolutions
Answering the phone

Re:Defendants not even asked! (2, Funny)

snowraver1 (1052510) | more than 6 years ago | (#23317702)

Software Debugging - Where doing the same thing over and over gives you different answers. Leading cause of insanity.

Re:Defendants not even asked! (1)

adisakp (705706) | more than 6 years ago | (#23317766)

the technical definition of "insanity" is trying the same thing repeatedly and expecting different results

A bit offtopic but this totally explains why I feel like I'm going insane trying to find heisenbugs [wikipedia.org] on multithreaded CPU code in our latest games. D'Oh!

Not unsual at all. (1)

Valdrax (32670) | more than 6 years ago | (#23317148)

Rule 12(b)(6) motions to dismiss for failure to state a claim generally only require a response when they might actually succeed. Judges will usually give a party a chance to amend their claims to make them non-frivolous, but when the claims are good enough to state actual legal controversy that can be tried, then there's no need to get the other party involved.

It's also worth noting that federal fact pleading standards are pretty lax. You have to really just plead random crazy talk.

Really, I'm surprised the NYCL though that Rule 11 sanctions would be even a possibility for filing a 12(b)(6) motion. I thought that was just standard practice and that failing to raise these affirmative defenses was risking a future legal malpractice suit. Rule 11 sanctions, in practice, are an extraordinary occurrence, AFAIK.

IANAL, though. Just a student.

Shoot! Error in post. (1)

Valdrax (32670) | more than 6 years ago | (#23317234)

It's also worth noting that federal fact pleading standards are pretty lax.
That's notice pleading, not fact pleading. Fact pleading is the code pleading still retained in a few state. Notice pleading is the federal method.

I always get that mixed up and say the wrong thing.

Re:Not unsual at all. (1)

nuzak (959558) | more than 6 years ago | (#23317664)

> Really, I'm surprised the NYCL though that Rule 11 sanctions would be even a possibility for filing a 12(b)(6) motion

NYCL's postings all drip with snarky schadenfreude that pretty much overwhelms any technical analysis he has to give. If PACER is at one end of objectivity, NYCL has raced past Groklaw to reside at the other.

I'm happy to see the RIAA get what's coming to them too, but NYCL's postings are purely for entertainment value, not edification.

I know it won't happen... (5, Funny)

hyades1 (1149581) | more than 6 years ago | (#23316588)

...but if there's a supreme being out there somewhere, I'll agree to start praying to it or sacrificing cans of tuna on its altar or whatever the hell it wants (within reason, of course) if only, please, please, please, there's jail sentences for the bastards at the end of this affair.

Re:I know it won't happen... (5, Funny)

Adambomb (118938) | more than 6 years ago | (#23316790)

...but if there's a supreme being out there somewhere, I'll agree to start praying to it or sacrificing cans of tuna on its altar or whatever the hell it wants
I am already aware of such an entity, in its opinion.

Too bad it just sits there purring for the most part and is fuzzy, and not so big on the implementation side.

Re:I know it won't happen... (3, Funny)

D Ninja (825055) | more than 6 years ago | (#23317502)

Queue: "I'm in ur courtrooms, denying ur lawyers."
Wish it was Caturday.

Re:I know it won't happen... (0)

Anonymous Coward | more than 6 years ago | (#23317556)

Will it do anything if I sacrifice a ball of wool to its mighty omnipotence?

Re:I know it won't happen... (1)

Adambomb (118938) | more than 6 years ago | (#23317762)

Swatting and Scampering may ensue.

Although, if lucky you may glimpse a four leafed clover at your feet.

Pop quiz for you litigation buffs out there (5, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23316642)

For you litigation buffs out there, let's take a quiz.

The facts.

A lawyer just filed a 30-page brief in which he (a) devoted 28 pages to repeating the same arguments he had made in a motion that was decided less than 8 months earlier, and (b) devoted 3 pages to telling the judge that his previous ruling was "wrongly decided".

Question #1

What will happen?
(a) The lawyer will win the motion.
(b) The lawyer will lose the motion.
(c) The lawyer will have to find a new line of work.
(d) Both (b) and (c)

Question #2

If you are the client who pays lawyers to do things like that you are
(a) A smart businessperson
(b) A moron
(c) A fool
(d) Both (b) and (c)

Re:Pop quiz for you litigation buffs out there (1)

geminidomino (614729) | more than 6 years ago | (#23316720)

#2 is obvious, but as to #1, since you're the lawyer: Is there any likelihood that he'd/they'd actually get disbarred (#1c)?

What are "Rule 11 Sanctions?"

Re:Pop quiz for you litigation buffs out there (5, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23316852)

What are "Rule 11 Sanctions?"
Rule 11 of the Federal Rules of Civil Procedure prohibits "frivolous" conduct by attorneys. This was about as "frivolous" as it gets.

Re:Pop quiz for you litigation buffs out there (1)

geminidomino (614729) | more than 6 years ago | (#23316908)

Thank you.

Re:Pop quiz for you litigation buffs out there (1)

InvisblePinkUnicorn (1126837) | more than 6 years ago | (#23316934)

Ha! Nice sig!

Re:Pop quiz for you litigation buffs out there (5, Funny)

gnasher719 (869701) | more than 6 years ago | (#23316774)

You forgot:

Question #3: You bill your clients

(a) a small number of hours for the three new pages
(b) a huge number of hours for writing the same 28 pages again
(c) cost of copying 28 pages
(d) all of the above?

Re:Pop quiz for you litigation buffs out there (3, Funny)

Kjella (173770) | more than 6 years ago | (#23317176)

(c) cost of copying 28 pages
Billing at cost? Epic fail. And you gave away three pages for free, double epic fail. This also invalidates the best answer, so it should read:

(c) cost of copying 31 pages, if the copies had been scribed on gold leaves by tibetan monks

Re:Pop quiz for you litigation buffs out there (1)

jalet (36114) | more than 6 years ago | (#23317372)

This one made my day.

Thanks !

Re:Pop quiz for you litigation buffs out there (3, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23317442)

This one made my day.
Thanks !
Don't thank me.

Thank this guy [blogspot.com] . He provides me with all my best material.

Re:Pop quiz for you litigation buffs out there (2, Insightful)

Anonymous Coward | more than 6 years ago | (#23316792)

Exactly. Judges, for the most part, are not idiots - and big city lawyers who roll into smaller jurisdictions often forget who runs the show.

Re:Pop quiz for you litigation buffs out there (1)

dreamchaser (49529) | more than 6 years ago | (#23316898)

I know you got modded as Funny, but it really should have been Insightful.

Re:Pop quiz for you litigation buffs out there (1)

91degrees (207121) | more than 6 years ago | (#23316946)

I've read Gulliver's Travels! It all depends on whether the motion 8 months earlier referred to a cow of a different colour. A case involving a more similarly coloured cow had arguments that bear some vague resemblance to the arguments the lawyer just made and therefore the judge must make a completely illogical decision consistent with the second case.

Okay RIAA! There's your case. Now pay me!

Re:Pop quiz for you litigation buffs out there (3, Insightful)

slashname3 (739398) | more than 6 years ago | (#23317082)

It's a trick question!

The actual answer in all cases is (e).

(e) The lawyer gets to bill an excessive amount for generating some paper work and having lunch with the judge. He then goes to his $2.4 million dollar home in his brand new BMW and sleep with his trophy wife and later on in the week sleep with his mistress.

Lawyer's don't care if their motions are granted or not, they only care if they can bill for the time.

Re:Pop quiz for you litigation buffs out there (1, Funny)

Anonymous Coward | more than 6 years ago | (#23317492)

It's a trick question!

The actual answer in all cases is (e).

(e) The lawyer gets to bill an excessive amount for generating some paper work and having lunch with the judge. He then goes to his $2.4 million dollar home in his brand new BMW and sleep with his trophy wife and later on in the week sleep with his mistress.

Lawyer's don't care if their motions are granted or not, they only care if they can bill for the time.
You sound as if this is the case for every lawyer and have the chutzbah to say so to a lawyer with NewYorkCountryLawyer's standing in the community? Amazing.

You realize of course that you there are many lawyers out there that might sue you over the statement demanding you produce evidence of them owning said $2.4 million dollar home, produce the "trophy wife" and mistress in court as they would like to meet the trophy wife, take her home to the $2.4 million home and in due time visit the mistress. Only thing stopping them would be the full knowledge that your attorney would, if possible, produce all in court at the same time thus informing the trophy wife of the existance of the $2.4 million dollar home and the mistress. Then offer to represent the trophy wife in divorce proceedings to get her the $2.4 million dollar home as well as half your other assets. The trophy wife would no doubt take him up on the offer then get in a lesbian affair with the mistress while the mistress sues you for palimony if applicable in your state of residence or hers if different.

Re:Pop quiz for you litigation buffs out there (1)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#23317584)

It's a trick question! The actual answer in all cases is (e). (e) The lawyer gets to bill an excessive amount for generating some paper work and having lunch with the judge. He then goes to his $2.4 million dollar home in his brand new BMW and sleep with his trophy wife and later on in the week sleep with his mistress. Lawyer's don't care if their motions are granted or not, they only care if they can bill for the time.
You sound as if this is the case for every lawyer and have the chutzbah to say so to a lawyer with NewYorkCountryLawyer's standing in the community? Amazing. You realize of course that you there are many lawyers out there that might sue you over the statement demanding you produce evidence of them owning said $2.4 million dollar home, produce the "trophy wife" and mistress in court as they would like to meet the trophy wife, take her home to the $2.4 million home and in due time visit the mistress. Only thing stopping them would be the full knowledge that your attorney would, if possible, produce all in court at the same time thus informing the trophy wife of the existance of the $2.4 million dollar home and the mistress. Then offer to represent the trophy wife in divorce proceedings to get her the $2.4 million dollar home as well as half your other assets. The trophy wife would no doubt take him up on the offer then get in a lesbian affair with the mistress while the mistress sues you for palimony if applicable in your state of residence or hers if different.
Yeah. It's wrong to generalize like that. I don't have the 2.4 million dollar home, or the mistress, or the BMW. I do have the trophy wife, but she's been with me since long before I became a lawyer, since back in the days when I was just an argumentative amateur.

Re:Pop quiz for you litigation buffs out there (0)

Anonymous Coward | more than 6 years ago | (#23317168)

Let's see:

Q1. Most likely (b), but possibly (a), depending on how persuasive the last 3 pages were. Definitely not (c). The lawyer has an obligation to preserve the losing arguments for appeal in each separate case. If the case from 8 months ago is appealed, and the appeals court reverses the trial judge, that ruling may not necessarily apply to the current case if the lawyers in the current case did not make the same motion. By making that motion again, knowing it would lose at the trial level, they ensured that either they would get the benefit of a successful appeal in another case, or, at the minimum, would have the opportunity to appeal those issues in the current case.

Q2. For the foregoing reasons, the answer is (a). You may be able to demand that you not pay a second time for the research that comprised the first 28 pages, but you should pay for the research on the last 3 pages and the minimal cost of re-filing the motion.

Re:Pop quiz for you litigation buffs out there (1)

Fuji Kitakyusho (847520) | more than 6 years ago | (#23317558)

28 + 3 = 31. 30 page brief? The non-frivolous argument must have been in the missing page.

Re:Pop quiz for you litigation buffs out there (1)

noidentity (188756) | more than 6 years ago | (#23317676)

Question #2 is missing an option:
(e) The RIAA

Who? (3, Interesting)

TubeSteak (669689) | more than 6 years ago | (#23316644)

Does "ATLANTIC RECORDING CORP., etc., et al.," (the people being countersued) include the RIAA & RIAA member companies?

Or did you just use "RIAA" in the same (wrong) way that frequently happens around here.

Re:Who? (1)

LostCluster (625375) | more than 6 years ago | (#23317330)

It's just we, the Slashdot community, pulling a typical media simplification. See, any time any member of the RIAA does something, it gets reported as the "RIAA" because they're really all just interchangable, and it saves the excess words of saying "An RIAA member company today got embarassed because they put in front of the same judge another RIAA member company the same motions he had rejected eight months earlier, and not suprisingly he rejected them again."

Will this judge get more cases? (5, Interesting)

gnasher719 (869701) | more than 6 years ago | (#23316658)

Just wondering: Since this is Judge Lazzara's second case already, I would think that he now knows more about the subject than your average judge, so it would only make sense to let him handle whatever over similar cases come anywhere near his court. Does the judicial system work that way, giving judges similar cases where possible, or are the cases handled by a random judge?

Re:Will this judge get more cases? (3, Interesting)

LostCluster (625375) | more than 6 years ago | (#23316936)

IANAL, and this can vary from courthouse to courthouse, but the typical MO is for them to assign cases truely randomly... which means the odds are against the same judge getting the same plantiff twice, unless that plantiff happens to be lawsuit-happy and rolls the dice / spins the wheel / calls Rnd(0) so many times that they draw the same judge. Then, they better change up their legal plans or face their nonsense not working for a second time happened here.

Enough already!!! (2, Insightful)

Anonymous Coward | more than 6 years ago | (#23316712)

Every other article on any tech website is about the copyright abuse, especially by the *AA. How much will it take for people to actually stop buying CDs and stop feeding and outdated business model?
http://www.wired.com/entertainment/music/magazine/16-01/ff_byrne

Preaching to the Choir (2, Insightful)

grahamd0 (1129971) | more than 6 years ago | (#23317380)

We on Slashdot already quit buying CDs.

The masses don't read tech sites, nor are they aware of the RIAA, nor would most of them care if they did.

Isn't that a reflex amongst corporate lawyers? (3, Funny)

91degrees (207121) | more than 6 years ago | (#23316736)

It seems like an automated system. I think the RIAA's legal team has been replaced by a server farm.

Re:Isn't that a reflex amongst corporate lawyers? (5, Funny)

prockcore (543967) | more than 6 years ago | (#23316950)

Maybe the RIAA could make the claim that it wasn't them that filed the papers, but a neighbor using their unsecured wifi?

Re:Isn't that a reflex amongst corporate lawyers? (1)

redcircle (796312) | more than 6 years ago | (#23317044)

I wonder if they could break a CAPTCHA

Re: Server Farm Lawyers (1)

TaoPhoenix (980487) | more than 6 years ago | (#23317066)

Wasn't this a topic of the other news story a few hours ago, "bots gaming the system"?
I think I recall the solution proposed in a post as "change the game so that the bots can't win".

Re:Isn't that a reflex amongst corporate lawyers? (2, Funny)

slashname3 (739398) | more than 6 years ago | (#23317114)

They have been using a specially modified version of Eliza to generate the motions. They had a team of lawyers file the first couple then simply started up the simulation and it is not filing all the paperwork. This is eventually going to cause a problem when they are asked where the programs law degree is from.

Re:Isn't that a reflex amongst corporate lawyers? (2, Funny)

oahazmatt (868057) | more than 6 years ago | (#23317166)

Can you imagine a Beowulf cluster of RIAA lawyers?

Re:Isn't that a reflex amongst corporate lawyers? (1)

argent (18001) | more than 6 years ago | (#23317322)

Sounds more like a windowbox than a farm.

Re:Isn't that a reflex amongst corporate lawyers? (1)

SpaceLifeForm (228190) | more than 6 years ago | (#23317476)

Or SHYSTER [anu.edu.au]

couldn't happen (1)

Presto Vivace (882157) | more than 6 years ago | (#23316762)

to a more deserving trade association.

IANAL, but... (3, Insightful)

jd (1658) | more than 6 years ago | (#23317118)

(yeah, all posts are, so what's new?)

First, I think the RIAA lawyers are probably doing nothing different from any lawyer - trying to get as many suits dismissed as possible, so they only have to argue the smallest subset possible. I can understand such a philosophy, when time is money, there's a pressure to get quick results, judgements are worse publicity than accusations, and so on. That is probably more a function of the legal system and the American attitude to high-pressure living/working than the RIAA.

Second, if a motion is frivolous, the judge should be doing more than just wagging a finger. Abuse of legitimate procedures devalues those procedures for others, as it increases the likelihood of judges in future regarding all such motions in a more hostile light. The judicial system does not just have a responsibility for those who stand before it today, but a responsibility for all who may ever stand before it, which means that there should be subtle encouragement of motions which are plausible (even if they are ultimately dismissed) and an unsubtle discouragement of motions which cannot possibly be construed as reasonable.

It would be interesting if the courts had greater powers (within reasonable bounds) to deal with contempt of court and any other abuse of court procedures, and a greater willingness to use those powers when lawyers or clients go beyond mere over-enthusiasm to being out of control. It wouldn't need to be severe. A compulsary psychiatric evaluation would be interesting, as it conveys all kinds of messages (real and imagined) about those who try to twist things.

I also think that some sort of staggered system, where you have a first round of aggressive fact-finding that feeds into a second round trial system, would help avoid the problem, the idea being that dismissal or whatever doesn't have any meaning until after the facts have been established, and accusatory systems are not very good at establishing facts, they're too busy constructing theories, but fact-finding missions are very bad at establishing context. Hence the need for both in a way that doesn't lend one to distract from the other.

The SCO/IBM case demonstrates a lot of what I'm talking about - a lot of the hold-ups and confusion was caused by wild speculation and insinuation, a lot of the useful stuff was done by establishing the groundwork, and all of this was before any actual trial had taken place. It would seem to follow that tuning the system according to experiences of what has been effective is better than maintaining a multi-millenia-old method that has acquired a lot of cruft and could do with some refactoring and bugfixing.

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