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ABA Judges Get an Earful About RIAA Litigations

kdawson posted more than 6 years ago | from the preaching-to-someone-other-than-the-choir dept.

The Courts 349

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

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Queue RIAA press release... (4, Insightful)

Anonymous Coward | more than 6 years ago | (#24393687)

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

All that needs to be said (5, Insightful)

Anonymous Coward | more than 6 years ago | (#24393717)

You are a hero.

Re:All that needs to be said (-1, Troll)

Anonymous Coward | more than 6 years ago | (#24394317)

You are a hero.

Let us not be too quick to deify him. It appears that he's getting paid for it. Who can tell - especially with lawyers - where their true loyalties lie?
The real hero is the guy who pays him to do this.

Re:All that needs to be said (3, Funny)

Hijacked Public (999535) | more than 6 years ago | (#24394527)

He gets paid to submit articles to Slashdot?

Re:All that needs to be said (-1)

Anonymous Coward | more than 6 years ago | (#24394551)

Everyone has to get paid somehow or you starve. I have a feeling that the clue-phone rang for you once, but you let the machine get it.

So quiet (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#24393721)

Everybody's reading TFA. Boring :(

Thank you for your efforts. (5, Insightful)

jx100 (453615) | more than 6 years ago | (#24393725)

They are greatly appreciated.

Re:Thank you for your efforts. (3, Insightful)

pickyouupatnine (901260) | more than 6 years ago | (#24393755)

That incidentally, might be the best you'll get out of a panel if you made them look stupid at any point in that article.

Re:Thank you for your efforts. (4, Interesting)

countSudoku() (1047544) | more than 6 years ago | (#24393829)

I'll second that! I'll never need this info personally, but feel this is for a greater good. The voice of NYCL is a breath of fresh air compared to the hostile assholes who are waging a war on potential customers and anyone who gets in their way. To bring some fairness to the people who are getting railroaded by the RIAA and their draconian tactics is a very, very good thing. Doing something helpful for someone you may never meet is commendable.

Re:Thank you for your efforts. (5, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394083)

I'll second that! I'll never need this info personally, but feel this is for a greater good. The voice of NYCL is a breath of fresh air compared to the hostile assholes who are waging a war on potential customers and anyone who gets in their way. To bring some fairness to the people who are getting railroaded by the RIAA and their draconian tactics is a very, very good thing. Doing something helpful for someone you may never meet is commendable.

Thank you, count.

I'm a Sudoku fan myself.

Re:Thank you for your efforts. (2, Funny)

dr_dank (472072) | more than 6 years ago | (#24394251)

Never mind that, did they give you free tickets to Mamma Mia?

Re:Thank you for your efforts. (2, Funny)

tobiasly (524456) | more than 6 years ago | (#24394443)

Never mind that, did they give you free tickets to Mamma Mia?

What does free tickets have to do with anything? He's simply explaining to them: there's another side to the RIAA's arguments, and I'd like to articulate it, if you'll take a chance on me.

Re:Thank you for your efforts. (5, Interesting)

Speare (84249) | more than 6 years ago | (#24394461)

My favorite bit of advice,

Some courts have made pronouncements to the effect that the court does not "understand the technology" well enough to make the dismissal determination, and that therefore the determination should be made after completion of pretrial discovery. I submit that, if the court does not understand the technology well enough, it means that the plaintiffs have not pled their claim well enough and their complaint should be dismissed.

Thanks, NYCL.

Re:Thank you for your efforts. (1)

dougisfunny (1200171) | more than 6 years ago | (#24394237)

Why would you never need it? Do you not have an IP address?

Well, I suppose you could live outside the USA, and then it wouldn't be particularly pertinent to you.

Re:Thank you for your efforts. (4, Insightful)

Anonymous Coward | more than 6 years ago | (#24394641)

I'll second that! I'll never need this info personally...

Don't be so confident about that, since many of the people being sued are no more guilty than you.

Re:Thank you for your efforts. (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#24394043)

Yes, music thieves and the large Internet criminal element do thank you, NewYorkCountryLawyer. You help make their job much easier, keeping the world safe for them to ply their nefarious trade. I'm sure that child rapists and murderers everywhere would, heh heh, kill to have such a consistent voice on their side in the arena of juridprudence.

Re:Thank you for your efforts. (5, Interesting)

PunkOfLinux (870955) | more than 6 years ago | (#24394191)

I think we need a -1 asshole option

Honestly, this doesn't make it 'easier' to do, this makes it more just to people. Regardless of your position on downloading music, you can't sanely argue that it's right that someone pays upwards of 2000 times what the damage is; there is no 'deterrence' feature to these rulings, as it is a civil matter. In fact, the only point of such rulings is retribution and punishment; there is no legal basis, as far as I am aware, for allowing civil rulings to include a deterrence factor.

Re:Thank you for your efforts. (5, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394211)

music thieves and the large Internet criminal element do thank you, NewYorkCountryLawyer

Is that you, MediaSentry? I didn't know the internet criminal element were posting in this thread.

Re:Thank you for your efforts. (3, Interesting)

bughunter (10093) | more than 6 years ago | (#24394065)

Agreed - a fantastic piece. NYCL is the internet MVP of the day.

Hey NewYorkCountryLawyer (0, Offtopic)

Anonymous Coward | more than 6 years ago | (#24393743)

Saw your pic. I thought you were younger!

you're doing it wrong (4, Funny)

commodoresloat (172735) | more than 6 years ago | (#24393795)

The appropriate salutation is "a/s/l?"

Re:you're doing it wrong (3, Funny)

bluefoxlucid (723572) | more than 6 years ago | (#24393831)

and the appropriate answer is 12/f/cf

Re:you're doing it wrong (5, Funny)

Anonymous Coward | more than 6 years ago | (#24393921)

What's a 12 year old girl doing in center field?

Re:you're doing it wrong (4, Funny)

martinw89 (1229324) | more than 6 years ago | (#24393959)

Lawyering, NewYorkCountry style.

Re:you're doing it wrong (0)

Anonymous Coward | more than 6 years ago | (#24394329)

playing ball where there is grass on the field.

Re:you're doing it wrong (2, Funny)

dgatwood (11270) | more than 6 years ago | (#24394419)

No, no, she's in Core Foundation. Running in loops.

Re:Hey NewYorkCountryLawyer (5, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394033)

Saw your pic. I thought you were younger!

I used to be much younger. But that was quite a while ago.

Re:Hey NewYorkCountryLawyer (1)

iminplaya (723125) | more than 6 years ago | (#24394195)

Ah, but I was so much older then
I'm younger than that now.

Re:Hey NewYorkCountryLawyer (0)

Anonymous Coward | more than 6 years ago | (#24394215)

When I was your age, I was twice as old!

Re:Hey NewYorkCountryLawyer (2, Funny)

RuBLed (995686) | more than 6 years ago | (#24394371)

But in 6 years you would be 3 times older than me. How old is the child sitting beside me now?

Re:Hey NewYorkCountryLawyer (3, Interesting)

Zwicky (702757) | more than 6 years ago | (#24394375)

Yeh, we all thought you were fighting the good fight from your Mom's basement*.

On a serious note though, nice work, Mr NYCL. You are the first and only legal eagle I've come across who is well-grounded and rooted in reality. I hope others will follow your lead (if they aren't already).

Some men are pioneers and others are followers. You Sir, are a fine pioneer and for that we commend you. Man, you're like the legal profession's Columbo. Do you have a Mac? ;)

Of all 3 branches (1, Insightful)

Wiseblood1 (1135095) | more than 6 years ago | (#24393745)

I would believe the Justice department to be the most fair and the most willing to listen the arguments. I am not saying that the DoJ is a righteous and all-good entity, but rather the only system in our government that can do the most good is the Justice department and it is rather interesting to hear the numerous justices stand up for the rights guaranteed by our government. Even more amazing when you hear of the pandering done to the other 2 branches done by lobbying groups. Money talks and thank god the DoJ sometimes just doesn't listen.

Re:Of all 3 branches (4, Informative)

langelgjm (860756) | more than 6 years ago | (#24393805)

FYI, the Justice Department != the judicial branch. In fact, the Justice Department is and has been under a lot of scrutiny because of its political bias.

Re:Of all 3 branches (0)

Wiseblood1 (1135095) | more than 6 years ago | (#24393837)

I am not talking about politics here. I am speaking of immutable rights guranteed definitively by the Bill of Rights. The most basic of basic rights.

Re:Of all 3 branches (3, Insightful)

langelgjm (860756) | more than 6 years ago | (#24393879)

Yes, but the Department of Justice is not a branch of the government. It is a part of the executive branch. Your talk of justices indicates to me that you are thinking of the judicial branch, which, as I said, is not the same as the Department of Justice.

Re:Of all 3 branches (1)

thePowerOfGrayskull (905905) | more than 6 years ago | (#24394061)

I am not talking about politics here. I am speaking of immutable rights guranteed definitively by the Bill of Rights. The most basic of basic rights.

I thought you said you weren't talking about politics...

Re:Of all 3 branches (0, Troll)

iminplaya (723125) | more than 6 years ago | (#24394239)

I am speaking of immutable rights guranteed definitively by the Bill of Rights.

Void where prohibited by law. That guarantee expired 211 years ago. The old dog has finally been muzzled and taken out back and shot. And we just turned away.

Re:Of all 3 branches (2, Insightful)

Archangel Michael (180766) | more than 6 years ago | (#24394233)

under a lot of scrutiny because of its political bias

Now, let apply the same to the other branches of Government please ....

Political Bias = Republicrat and Demican parties, where 2/3 of the people can want something and one person can hold it up because they "want to save the planet", or "protect us against evildoers"!

 

Re:Of all 3 branches (2, Informative)

langelgjm (860756) | more than 6 years ago | (#24394477)

Political Bias = Republicrat and Demican parties, where 2/3 of the people can want something and one person can hold it up because they "want to save the planet", or "protect us against evildoers"!

Not sure what you're referring to here, but if 2/3 of Congress wants to pass a bill, they can do so. 2/3 is also the amount needed to override a presidential veto, so one person can't hold it up.

Judges, Justices, or Department of Justice? (5, Informative)

alexhmit01 (104757) | more than 6 years ago | (#24393819)

The Department of Justice (DOJ) is an executive branch department (Wikipedia Entry [wikipedia.org] ). The judicial system is made up of Judges at most levels, and justices are the supreme court level. To laymen, that distinction it one of terminology, not job (though they don't judge cases the same way a trial court does, and the terms have some meaning.

Re:Judges, Justices, or Department of Justice? (1)

afidel (530433) | more than 6 years ago | (#24394441)

It's funny that the term justice is used for the highest and lowest courts in the land, from the justice of the peace (often a laymen without a JD) to the justices of the Supreme Court.

Damn it! (4, Funny)

geekoid (135745) | more than 6 years ago | (#24393751)

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

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

Re:Damn it! (4, Interesting)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394049)

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

No problem. You can keep on making snarky comments.

Now my replies need to be thought out!

Don't start on my account.

I mean, you look like one of us

I am one of you.

(except for the monkey suit).

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

Re:Damn it! (1)

geekoid (135745) | more than 6 years ago | (#24394107)

"I am one of you."

Ahhh

Sorry, gave me a start.

Good job, btw.
Thanks.

Real question (4, Insightful)

geekoid (135745) | more than 6 years ago | (#24394153)

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

Is downloading infringement? or is it distribution?

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

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

Where doesn't it say downloading is infringement?

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

Re:Real question (4, Insightful)

jeiler (1106393) | more than 6 years ago | (#24394377)

Is downloading infringement? or is it distribution?

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

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

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

Re:Damn it! (4, Funny)

G00F (241765) | more than 6 years ago | (#24394165)

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

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

Re:Damn it! (4, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394395)

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

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

Well I'm not a trend-setter like you.

Re:Damn it! (4, Insightful)

RobBebop (947356) | more than 6 years ago | (#24394187)

And a sense of humor, as well?

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

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

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

Thank you.

Older and Wiser! (1)

Schnoodledorfer (1223854) | more than 6 years ago | (#24394711)

Well, more knowledgeable, anyway. A few months ago you said that you didn't know what "snarky" meant [slashdot.org] . Now you understand and even use it!

Re:Damn it! (1)

Wireless Joe (604314) | more than 6 years ago | (#24394653)

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

We accept him! We accept him! One of us! One of us! Gooble gobble, gooble gobble! One of us! One of us!

Wow (4, Insightful)

Sparr0 (451780) | more than 6 years ago | (#24393781)

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

Re:Wow (3, Funny)

H0p313ss (811249) | more than 6 years ago | (#24393887)

I also wish for a pony.

And blackjack!

Re:Wow (1, Funny)

Anonymous Coward | more than 6 years ago | (#24394421)

oh forget it- just give me the hookers and be done with it

Yes, thank you (0)

Anonymous Coward | more than 6 years ago | (#24393813)

I for one thank you

Re:Yes, thank you (1)

Zwicky (702757) | more than 6 years ago | (#24394437)

I think you missed the bit about an 'overlord' or something.

Great paper, still reading... (3, Informative)

It doesn't come easy (695416) | more than 6 years ago | (#24393839)

However, need to correct a very important typo...you have misspelled the www.groklaw.net web address (you have growklaw at least once in the paper).

Re:Great paper, still reading... (3, Insightful)

Anonymous Coward | more than 6 years ago | (#24394123)

I started reading and then a question occurred to me. In the Napster days you found someone with a song and downloaded it. With a torrent, you are getting a chunk. I don't see the chunk as having any copyright since you need to assemble the file with the header to listen / view it. IANAL, To prosecute someone, wouldn't you have to prove that you got each chunk from the same computer / person? Just because someone is seeding a file doesn't mean that he is supplying all of the pieces to you to recreate / duplicate a copyrighted work. Without the whole file it's just a bunch of semi random bits.

It seems to me that a little defense could go a long way. To bad that defense will cost you your house. Oh yeah, it's the US (I'm in Canada). You guys are walking away from your homes anyway. Just give your keys to the RIAA and say thanks for the tunes and move to Canada.

Re:Great paper, still reading... (1)

cheater512 (783349) | more than 6 years ago | (#24394447)

In theory you also have to prove that the recipient downloaded all the chunks, not just the one.

Re:Great paper, still reading... (2, Interesting)

ChromaticDragon (1034458) | more than 6 years ago | (#24394545)

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

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

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

So... If what you're suggesting has any validity, it would seem to undercut the ability to provide this provision. That is, why would anyone need to care? It would seem the distribution (not clear about downloading) of the chunk would still violate copyright. And remember, these days with P2P apps, most folk are uploading and downloading the same file simultaneously.

Now, having said that, a much more interesting angle of your question is how anyone would handle your original question were it recast a bit...

For example, if I scramble the tar out of the original file and parse it into scrambled chunks and provide a program to put it back together. All these chunks and the program are similarly distributed across a typical P2P application. Now, who's doing what that violates copyright?

If I take a bunch of these chunks and turn them into bitmaps, png files or whatnot and distribute these, then what? Things get much, much more interesting in a digital age where the same byte-stream could theoretically be any number of things. If I download the first billion digits of pi and this somehow includes the byte stream of a copyrighted song, has anyone violated the derivative works of copyright?

Re:Great paper, still reading... (2, Interesting)

Creepy Crawler (680178) | more than 6 years ago | (#24394735)

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

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

Or worse yet, we can describe film data as a 3d graph. If we approximate the set of equations, we can create a "close enough" set of pictures that could be indistinguishable. Would disseminating these equations violate copyright?

Re:Great paper, still reading... (0)

Anonymous Coward | more than 6 years ago | (#24394369)

I found another typo, in your conclusion you write "measures wil advance the correct determination of important and evolving legal question, reduce" clearly you missed an 'l' either that or its some complicated legal jargon in which case I will eat my hat.

the important thing for us all to forget (-1, Offtopic)

hxnwix (652290) | more than 6 years ago | (#24393901)

is the usenet. The usenet does not exist now, nor has it ever.

There is no large distributed system for human discourse that many horribly abuse to disseminate certain data and lossless music in a manner that presents virtually no risk to downloaders.

That's why p2p filesharing is so very big a deal that even the ABA thinks and rethinks thoughts about it. If such a thing like the usenet were to exist, those in the know would surely take all kinds of advantage of it, and p2p would be relegated to dilettantes and niche fetishes too severe or inhuman to warrant usenet posting.

The whatnet? The fuck you net, that's what. It. Doesn't. Exist.

this is excellent news (1)

Brain Damaged Bogan (1006835) | more than 6 years ago | (#24393947)

the judicial system is finally recognising that the MAFIIA is making a mockery of the courts, while there have been isolated incodents of common sense in the courtroom this is a big win because now multiple judges are sitting down to look at the issue. It took them long enough.

judges (3, Insightful)

arbiter1 (1204146) | more than 6 years ago | (#24393991)

a lot of what it comes down to, is a lot of the judges are older people that don't know much about computers cept enough to use one for the basics then you get a so-called "expert" to use fancy terms and they judge don't have a clue what most it means and get slammed. Other part is most the defendant's can't afford to fight a multi-billion dollar company and get short shit end of the stick

Question for NYCL... (4, Interesting)

GeneralEmergency (240687) | more than 6 years ago | (#24394053)

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

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

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

   

Re:Question for NYCL... (1)

hax0r_this (1073148) | more than 6 years ago | (#24394325)

My understanding is that the RIAA downloads from their victims, then sues them for making those files available. As opposed to suing victims to whom they upload content.

Re:Question for NYCL... (5, Insightful)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394427)

My understanding is that the RIAA downloads from their victims, then sues them for making those files available.

That's exactly right. Pretty pathetic, isn't it?

Re:Question for NYCL... (1)

Creepy Crawler (680178) | more than 6 years ago | (#24394615)

Well, if many of the cases hinge upon the identity of an IP address, cant the ISP's require signed certificates with some sort of CAPTCHA that verifies identity?

I mean, doesnt the whole identity problem go away if we can validate a IP tunnel to a 1024 bit key assigned to our name?

Yes. TCPA. Ugly, nasty, DRM to the extreme... but it solves the identity problem.

Re:Question for NYCL... (1)

GeneralEmergency (240687) | more than 6 years ago | (#24394501)

Yes. I know.

"Making Available" is "Unauthorized Distribution", not "Unauthorized Duplication", under copyright law in the warped universe that the RIAA inhabits.

The question is...If MediaSentry is LICENSED to make duplicates of RIAA governed works, and MediaSentry's actions are the only explicit actions in these alleged acts of "Distribution", how can these transactionS be "unauthorized" if the only party initiating the file transfer is authorized to make the copies in the first place?

Re:Question for NYCL... (1)

Todd Knarr (15451) | more than 6 years ago | (#24394585)

Because the question isn't whether the recipient's authorized to receive the copy, it's whether the distributor's authorized to make the copy. If the distributor isn't authorized, then the copy is unauthorized regardless of the recipient. If it didn't work that way, it'd be impossible for any author to prosecute copyright infringement. The only evidence the author could produce would be copies he himself received (if he hadn't, he wouldn't have them to introduce into evidence), and the copyright holder of a work is by definition authorized to make copies. If the courts followed your logic, they'd have to immediately dismiss the author's case because the only copies he had introduced were authorized by virtue of his having received them. Which is obviously a ridiculous situation.

Re:Question for NYCL... (1)

Vancorps (746090) | more than 6 years ago | (#24394815)

You are correct except that someone downloading from MediaSentry has no way to know what license terms there are. They only know that MediaSentry is distributing content on a medium which requires both downloading and uploading to receive which should imply consent for distribution.

Re:Question for NYCL... (2, Interesting)

dirk (87083) | more than 6 years ago | (#24394487)

It doesn't matter if MediaSentry is allowed to make copies, the person uploading the file still does not have permission to distribute the file. It doesn't matter who they are distributing to, it matters that they can't legally distribute the file. Unless the copyright holder explicitly gives me permission to distribute the file, I can't legally make a copy for anyone, even if they can legally have or make a copy.

Obligatory.... (4, Informative)

kipin (981566) | more than 6 years ago | (#24394063)

A torrent link to the pdf can be found here! [mininova.org]

Admissable (5, Interesting)

hellwig (1325869) | more than 6 years ago | (#24394077)

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

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

I understand common-sense is something most people don't have anymore, but when my life or livelyhood is at stake, I would hope the person defending me has a little.

Re:Admissable (3, Informative)

the eric conspiracy (20178) | more than 6 years ago | (#24394243)

We use things like precident instead of common sense

For better or worse that is our legal system. The roots go back almost 1000 years.

http://en.wikipedia.org/wiki/Common_law [wikipedia.org]

Re:Admissable (1)

Creepy Crawler (680178) | more than 6 years ago | (#24394589)

Kinda cool, those public defenders.

I was a juror in a court case in which the guy was tried for DUI. The only thing is we didnt think he did the D part (the driving). The cop said he drove, but was a narc officer and was hired as a rentacop for a Pow-wow or something. We believed the defendant and not the cop.

It took us a whole 5 minutes to find him not guilty of any crime. We then find out in chambers (we go out the back way through the Judges chambers) that the Defendants Lawyer was a public defender. I'll say he did a smash-up job.

This one chewed up the prosecution and spit them out in a fine mist. I would have never guessed he was a Public Defender.

Re:Admissable (1)

Ocker3 (1232550) | more than 6 years ago | (#24394613)

why refight every battle every time it comes up? Lawyers bring up older cases and argue that this one is close enough to the older cases that the same judgement should apply. Judge agrees with what he sees as the closest, may choose a different one, or may go out on a limb and make a new judgement. (vastly simplified I know)

God Bless Ray Beckerman (3)

LVSlushdat (854194) | more than 6 years ago | (#24394125)

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

Re:God Bless Ray Beckerman (4, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394167)

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

Thank you for your kind words. But I am not alone. I have been joined in this fight by many fine men and women all across the country, lawyers and defendants alike. We learn from each other, and help and support and get strength from each other.

Ray Beckerman is the man (4, Informative)

blind biker (1066130) | more than 6 years ago | (#24394127)

Definitely my favourite Slashdot user.

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

Re:Ray Beckerman is the man (0)

Anonymous Coward | more than 6 years ago | (#24394277)

Oh come on. I know he's not around anymore and your UID is so high it could almost be John Belushi's but how could you say that NewYorkCountryLawyer is better than JonKatz?!

Sorry, I'm drunk, you're right.

Re:Ray Beckerman is the man (1)

Zwicky (702757) | more than 6 years ago | (#24394469)

Definitely my favourite Slashdot user.

Now you've gone and hurt my feelings :'(

The suggestions from TFA (5, Informative)

Anonymous Coward | more than 6 years ago | (#24394135)

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

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

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

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

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

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

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

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

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

Suggestion 8. Keep discovery short and sweet.
If, and only if, the plaintiffs can muster an evidentiary showing that their case has merit and that the defendant committed copyright infringement, then the court may allow (1) a deposition of the plaintiffs; (2) a deposition of the defendant; and (3) an examination of the hard drive by a mutually agreeable independent neutral forensics expert whose fees will be advanced by the plaintiffs and will be treated as a taxable disbursement to abide the event. The plaintiffs would not properly be permitted to use the pendency of the action as a platform for conducting an investigation to find out who, other than the defendant, they should have sued.

Suggestion 9. Expert witness fees should be advanced by plaintiffs.
Plaintiffs should be required to pay their own expert witness fees and to advance the defendant's expert witness fees with the expenditure to be a taxable cost to abide the event. Without this, the trier of fact will be unable to obtain a true picture of the technological questions that need to be resolved.

Suggestion 10. The court should award attorney fees, in most cases with a multiplier.
In every instance in which a defendant wins on the merits, the plaintiffs voluntarily dismiss with prejudice, or the plaintiffs dismiss without prejudice but have forced the defendant to incur significant attorney fees, the court should deem the defendant a "prevailing party" under the Copyright Act and award attorney fees. In most cases, there should be a multiplier due to the financial risk taken by the attorney.

Suggestion 11. Scrutinize the plaintiffs' confidentiality requests carefully.
In analyzing the RIAA's confidentiality requests, the court should take into account the public's right to know under the First Amendment, and should not allow the RIAA to use "confidentiality requests" as a means of depriving current and future defendants, who are already at a significant economic disadvantage, from obtaining the tools they need to defend themselves.

Suggestion 12. In accordance with standard summary judgment practice, grant defendants' summary judgment motions in the absence of proof of infringement or inducement.
If, in opposition to the motion, plaintiffs cannot prove that the defendant (1) personally committed a copyright infringement or (2) by affirmative acts induced or encouraged someone else to commit copyright infringement, the motion should be granted, regardless of the stage at which the motion is made. It should not have to await the close of discovery.

Suggestion 13: Require inquests in cases of default.
Default judgments are never to be granted only on the basis of written papers and scripted submissions. The plaintiffs must (1) produce live witnesses who can be cross-examined by the court and (2) prove actual damages proximately flowing from defendant's infringement, so that the court can determine whether the statutory damages being sought are unconstitutionally excessive.

Suggestion 14: Justice will be served by the appointment of guardians ad litem or the use of other procedures to ensure that the rights of helpless
people are protected.

The court should appoint guardians ad litem where authorized by law and seek assistance from pro bono panels, bar associations, legal aid organizations, and other possible sources to ensure that the rights of helpless people are protected.

Suggestion 15: Send decisions for publication.
Please send all decisions, other than grants of uncontested applications, out for publication so that the defendants' bar will have access to them.

Well done (4, Insightful)

BlueParrot (965239) | more than 6 years ago | (#24394169)

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

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

Re:Well done (4, Insightful)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394183)

I know of the shady tactics used by teh RIAA, but even thou I have been reading slashdot and groklaw for years, I was nto aware of the extent to which these companies have systematically and intentionally violated even the most basic court principles with the intention to scare ordinary people. Let them hang I say... Oh, and well done Ray, I will be saving this article as an example of why we need due process.

Yes it's pretty astonishing the lengths to which they will go to make sure the defendant doesn't have a fair shake in court.

+5 Insightful? +3 Informative? (2, Interesting)

shrikel (535309) | more than 6 years ago | (#24394213)

Funny, I didn't realize the ABA utilized slashcode.

Re:+5 Insightful? +3 Informative? (4, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#24394311)

Funny, I didn't realize the ABA utilized slashcode.

I guess you didn't read my Slashdot interview [slashdot.org] and the comments which followed it, where I said quite clearly [slashdot.org] :

Thank you all for the interview, and for the rough and tumble comment period which followed it. I really enjoyed it. It was incredible fun. I've even learned an important new legal research method in the process. A lawyer can't just read a bunch of cases and statutes to know what the law is. He also needs to come to Slashdot, because if somebody here says something's the law, and it gets moderated to +5, then it's the law. Maybe lawyers don't know it, and Congress doesn't know it, and the judges don't know it, but sooner or later, I'm sure they'll come around.

The legal profession is just starting to catch up to Slashdot, but we'll come around.

Re:+5 Insightful? +3 Informative? (1)

Kozar_The_Malignant (738483) | more than 6 years ago | (#24394383)

>He also needs to come to Slashdot, because if somebody here says something's the law, and it gets moderated to +5, then it's the law. Maybe lawyers don't know it, and Congress doesn't know it, and the judges don't know it, but sooner or later, I'm sure they'll come around.

It's not ManLaw; it's NerdLaw.

Re:+5 Insightful? +3 Informative? (3, Funny)

fyoder (857358) | more than 6 years ago | (#24394351)

It has become a geek meme. Can also be used as a pickup line, as in "Hey, babe, anyone ever tell you you're +5 beautiful?" Followed shortly by, "Hey, sweet stuff, I see you've barfed in your drink. Can I buy you another?"

I'll probably get modded down as "redundant" (4, Insightful)

beadfulthings (975812) | more than 6 years ago | (#24394279)

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

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

yeah, keep stealing. (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#24394345)

fucking thieves. i hope they cut your homosexual balls off.

Interesting... (5, Interesting)

gillbates (106458) | more than 6 years ago | (#24394451)

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

The possible reasons behind this interest me:

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

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

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

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

Mamma mia! (1)

anza (900224) | more than 6 years ago | (#24394571)

Here we go again!

fishing with a net... (3, Insightful)

perlchild (582235) | more than 6 years ago | (#24394623)

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

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

Re:fishing with a net... (1)

jeiler (1106393) | more than 6 years ago | (#24394721)

In this case, "dolphins" are not "casual defenseless infringers"--a more appropriate analogy is that large scale industrial pirates would be the barracuda, the actual casual infringers would be tuna, and the "dolphins" would be innocent non-infringers. Unfortunately, the RIAA seems to have only a very inefficient (or no) method for telling the tuna from the dolphins--further, they have no regard for the innocent dolphins.

What options do WE have? (3, Interesting)

CorporateSuit (1319461) | more than 6 years ago | (#24394673)

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

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

tl;dr: what's the best way a man can proceed if he doesn't get a fair first trial?

Wonderful article (1)

debrain (29228) | more than 6 years ago | (#24394791)

A very thorough yet accessible article. Very well done- a wonderful job of putting together a complex set of factual and legal issues.

Do you suppose someone at the RIAA will read and (in any way) react to this?

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