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Appeals Court Stays RIAA Subpoena Vs. Students

kdawson posted about 5 years ago | from the long-time-coming dept.

The Courts 266

NewYorkCountryLawyer writes "The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it. That is about to change. In Arista Records v. Does 1-16, a case targeting students at the Albany Campus of the State University of New York, the US Court of Appeals for the Second Circuit has decided to put things on hold while it takes a careful look at what transpired in the lower court. The way it came to this is that a few 'John Does' filed a broad-based challenge to a number of the RIAA's procedures, citing the defendant's constitutional rights, the insufficiency of the complaint, the lack of personal jurisdiction over the defendants, improper misjoinder of the defendants, and the RIAA's illegal procurement of its 'evidence' through the use of an unlicensed investigator, MediaSentry. The lower court judges gave short shrift to 'John Doe #3,' but he promptly filed an appeal, and asked for a stay of the subpoena and lower court proceedings during the pendency of the appeal. The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success. The Appeals Court disagreed and granted the motion, freezing the subpoena and putting the entire case on hold until the appeal is finally determined. As one commentator said, 'this news has been a long time coming, but is welcomed.'"

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266 comments

This is big (5, Insightful)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27702125)

This is big. This will be the very first appellate scrutiny. By staying all lower court proceedings until the appeal is decided, the Court signalled that it's taking this very very seriously.

Re:This is big (5, Interesting)

Jason Levine (196982) | about 5 years ago | (#27702173)

Is it possible for the RIAA to drop the case in order to stop these proceedings? I know that's a tactic they've used in the past when things didn't go their way. Hopefully, they won't be able to just say "oops, our bad" and stop any investigation into their tactics.

Re:This is big (5, Informative)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27702299)

Is it possible for the RIAA to drop the case in order to stop these proceedings? I know that's a tactic they've used in the past when things didn't go their way. Hopefully, they won't be able to just say "oops, our bad" and stop any investigation into their tactics.

Yes it is possible for it to try that gambit. But it is also possible for the Court to retain jurisdiction over it.

Re:This is big (1)

DustyShadow (691635) | about 5 years ago | (#27703011)

Will there be a full appeal with oral arguments?

Re:This is big (4, Informative)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27703031)

Will there be a full appeal with oral arguments?

Yes!!!

Re:This is big (1)

DustyShadow (691635) | about 5 years ago | (#27703137)

Awesome. Do you know if the 2nd Circuit has mp3s available of oral arguments? My quick google search didn't find any. I know other circuits have them available.

Re:This is big (4, Informative)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27703455)

Do you know if the 2nd Circuit has mp3s available of oral arguments? My quick google search didn't find any. I know other circuits have them available.

Not to my knowledge. You're just going to have come on down to the courthouse to see Mr. Altman in action.

Re:This is big (5, Funny)

Bakkster (1529253) | about 5 years ago | (#27703667)

Awesome. Do you know if the 2nd Circuit has mp3s available of oral arguments? My quick google search didn't find any. I know other circuits have them available.

No, but you can torrent them. Just be careful that the CSJA (Court System Judges of America) doesn't sue you for copyright infringement. I hear they've got a good legal team...

Re:This is big (1)

Jason Levine (196982) | about 5 years ago | (#27703055)

Here's hoping that they can't successfully weasel their way out of this. I'd like to see a court strike down their obvious abuses of the legal system.

Re:This is big (1)

BrokenHalo (565198) | about 5 years ago | (#27703649)

I'd like to see a court strike down their obvious abuses of the legal system.

Don't hold your breath. Justice is for those who can afford it, and the RIAA have a nearly unlimited amount of money to throw at this issue.

Re:This is big (1)

suzerain79 (1441559) | about 5 years ago | (#27702395)

Some of it depends on whether the John Doe asked the court for affirmative relief. i.e. attorney fees, court costs, etc. If that is the case, then the RIAA can only dismiss its claims while the John Doe's claims can continue on as long as they are willing to pursue them.

Re:This is big (5, Interesting)

CodeBuster (516420) | about 5 years ago | (#27702401)

If the appellate court forces the RIAA to use the ordinary subpoena process instead of 'ex-parte' with joinder then will that not substantially alter the cost equation for the RIAA? Will they be forced to concentrate on fewer defendants and spend more effort going after them? Will they finally give up if they can only go after a limited number at a time who, even if convicted, cannot pay $250,000+ damages anyway? One cannot squeeze blood from turnips after all and if the primary goal of the RIAA is to file lots of cases spamigation style, then won't their primary purpose, which is to frighten large numbers of ordinary citizens on the cheap, be thwarted? I think that if the appellate court outcome renders their current strategy uneconomical then the RIAA will try to use their newfound clout with the Obama administration and the Democratic Congress to push through some very onerous new legislation and encourage the government, and therefore the tax payers, to shoulder the massively increased costs per defendant by having the Justice Department do their dirty work for them. I'm afraid that we're not out of the woods yet.

Re:This is big (5, Informative)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27702547)

If the appellate court forces the RIAA to use the ordinary subpoena process instead of 'ex-parte' with joinder then will that not substantially alter the cost equation for the RIAA?

Yes, if they had been following the law, it would have cost them more. In fact, if they had been following the law, they wouldn't have even been able to file the lawsuits. But it is not about costing them money, or preventing them from bringing lawsuits to enforce their copyrights. The important thing is that the law be followed, and not bent to suit the whims of large corporations just because they can afford to hire a large number of unscrupulous lawyers.

Re:This is big (1)

CodeBuster (516420) | about 5 years ago | (#27703549)

The important thing is that the law be followed, and not bent to suit the whims of large corporations just because they can afford to hire a large number of unscrupulous lawyers.

Yes! Precisely. If we do not have equal justice and equal access to a fair legal system then what are we left with? Probably not the sort of country that our founding fathers envisioned, that's for sure.

Re:This is big (1)

tsstahl (812393) | about 5 years ago | (#27702649)

I don't think we'll ever be out of the woods. I believe they will pursue that course no matter what happens in the courts. From their perspective cost shifting to your benefit is a bad thing how?

The fear campaign can be just as effective by using the courts the _correct_ way. However, you are quite correct the profitable part of their scheme will be over.

Re:This is big (5, Insightful)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27702715)

I don't think we'll ever be out of the woods.

If the Second Circuit rules as I believe it will, this will mark the end of these abusive litigations by the RIAA.

After this, the RIAA will have to go to court only with proper, scientifically verifiable, legally obtained evidence showing that the person they're suing actually committed copyright infringement, and will have to have proper legal theories and pleadings.

Re:This is big (2, Funny)

Anpheus (908711) | about 5 years ago | (#27702873)

At first I read "If the Second Amendment ..." and I thought to myself, "What could possibly involve the RIAA and a right to bear arms... Oh. Oh... I see."

It's almost a pity it isn't true...

Re:This is big (1)

debrain (29228) | about 5 years ago | (#27703347)

After this, the RIAA will have to go to court only with proper, scientifically verifiable, legally obtained evidence showing that the person they're suing actually committed copyright infringement, and will have to have proper legal theories and pleadings.

What decision of the Circuit Court would affect RIAA and its principals in terms of preventing this behaviour in the future?

Where their litigation within the law fails, they shall no doubt "rent seek" (to borrow the term from Ann Krueger).

Re:This is big (1)

The Wooden Badger (540258) | about 5 years ago | (#27703567)

If the Does' appeal is successful, then the RIAA MO becomes a liability. Any future defendants can hold the ruling out there and the case will get dropped. If karma has anything to do with it they would get bent over AND taken out behind the wood shed. They could still bring lawsuits, they will just have to change the status quo to get anywhere.

It's about time (2, Interesting)

quangdog (1002624) | about 5 years ago | (#27702127)

Is this a sign that the judicial system is finally going to start to treat the RIAA like the mobsters they mimic?

Re:It's about time (5, Funny)

Shakrai (717556) | about 5 years ago | (#27702317)

is finally going to start to treat the RIAA like the mobsters they mimic?

I really wish we could stop comparing the RIAA to the Mafia. It's an insult to the hard working men like Tony Soprano that strive to provide needed services like gambling, loan-sharking and prostitution to equate them with an organization that does nothing but sue college students and old people ;)

On a more serious note, it's still a stupid comparison. If you wind up on Tony Soprano's bad side you are going to get beaten up or in the worst case scenario murdered. The worst case scenario from a RIAA lawsuit is that you wind up filing bankruptcy. Bankruptcy != murder, IMHO.

Re:It's about time (1)

ianare (1132971) | about 5 years ago | (#27702723)

if you owe mr. soprano some money, and the riaa forces you into bankruptcy, what do you do ?

Re:It's about time (5, Insightful)

dwandy (907337) | about 5 years ago | (#27702921)

The worst case scenario from a RIAA lawsuit is that you wind up filing bankruptcy. Bankruptcy != murder, IMHO.

I disagree ... lawsuits are the modern equivalent of physical violence, and taking all of someone's assets is the modern murder. Just because we now have a system that allows pillaging and plundering without bloodshed doesn't decrease the devastation that this causes to people and their families.

Lastly, people who lose it all often end it all, completing the 'murder'.

Re:It's about time (0)

Anonymous Coward | about 5 years ago | (#27703173)

If I tell you that you should kill yourself and you do, does that make it murder?

Re:It's about time (1)

Mister Whirly (964219) | about 5 years ago | (#27703187)

If someone takes all your money and/or possessions, you can get those things back. If someone takes your life, well, good luck with all that. I mean seriously, if someone gave you the choice of losing your material possessions or death, you can honestly say you don't see a difference?? If you can't I would say you are placing WAY to much value on your stuff and money.

Re:It's about time (1)

Eivind Eklund (5161) | about 5 years ago | (#27703459)

How's the suicide statistics amongst those that have been targeted (compared to some control group)?

It would really surprise me if these lawsuits have not led to at least one death, and I would suspect several, given the age group mostly sued and their general psychological solidity.

Eivind.

Re:It's about time (4, Insightful)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27702329)

Is this a sign that the judicial system is finally going to start to treat the RIAA like the mobsters they mimic?

That I don't know. But it certainly is a sign that the Second Circuit judges consider the issues raised by John Doe #3 in the lower court to be serious and important.

Re:It's about time (2, Interesting)

nomadic (141991) | about 5 years ago | (#27702629)

That I don't know. But it certainly is a sign that the Second Circuit judges consider the issues raised by John Doe #3 in the lower court to be serious and important.

Or at least their law clerks do...

your mouth vs my ass (-1, Offtopic)

Anonymous Coward | about 5 years ago | (#27702129)

lick it cocksucker!

John Doe #3. (1)

BenFenner (981342) | about 5 years ago | (#27702153)

John Doe #3; please raise your hand so that I may buy you a [insert beverage of choice here].

Re:John Doe #3. (4, Funny)

Red Flayer (890720) | about 5 years ago | (#27702281)

John Doe #3; please raise your hand so that I may buy you a [insert beverage of choice here].

Sorry for the tyopes, I'm posting this from my balckbrery.

I tried to insert a beer tehre, but the olny thing taht hapepned is i got beer all ovre my laptpo.

Perhpas it would have bene better to use $BEVERAGE insteda fo giving bad instrutcions?

Re:John Doe #3. (5, Funny)

Anonymous Coward | about 5 years ago | (#27702639)

>>Sorry for the tyopes, I'm posting this from my balckbrery.

Obama, don't you have country to run or something?

Re:John Doe #3. (1)

sadness203 (1539377) | about 5 years ago | (#27703013)

Don't even worry about that, he put really great people in the DOJ, they will do a heck of a job.
6 of them, so I've heard.
So basically, we can give him a break.

Re:John Doe #3. (0)

Anonymous Coward | about 5 years ago | (#27702551)

Fresca...strawberry fresca. Thank you

Re:John Doe #3. (-1, Redundant)

Anonymous Coward | about 5 years ago | (#27702593)

I'm John Doe #3.

Re:John Doe #3. (-1, Redundant)

Anonymous Coward | about 5 years ago | (#27702901)

I'm John Doe #3.

will the REAL John Doe #3 please stand up!?

Common Sense wins this round (1)

Drakkenmensch (1255800) | about 5 years ago | (#27702213)

Mass stupidity routed back to the corner, swears revenge and runs off into the sunset with 'Yackety Sax' music in background to return at a later court date.

F word article summary (0, Funny)

Anonymous Coward | about 5 years ago | (#27702227)

RIAA: f you, john doe #3.
John Doe #3: f me, huh? Hey appeals court, f the RIAA!
Appeals Court: We concur, f the RIAA.
RIAA: aw, f.

It was only a matter of time (4, Insightful)

Locke2005 (849178) | about 5 years ago | (#27702243)

The problem with threatening people at random, is that eventually you make the mistake of threatening someone who has the resources to take you all the way to the supreme court. The RIAA seems to have a pattern of targeting those least able to defend themselves (college students, single moms, seniors) but it look like now they have a ready, willing, and able opponent who wont just roll over. Let's all collective summon up our best Nelson Muntz impressions: "Ha-ha!"

Re:It was only a matter of time (1)

rahvin112 (446269) | about 5 years ago | (#27702595)

The problem with suing college students is that one of them could be the child of the dean of the school of law or some other highly placed or very capable individual. Most of them will be destitute students, but sue enough of them and you are going to sue someone not in your best interest.

Re:It was only a matter of time (1)

Anpheus (908711) | about 5 years ago | (#27702903)

Or they could live near Harvard and endear a tenured law professor to their cause.

Re:It was only a matter of time (1)

Mister Whirly (964219) | about 5 years ago | (#27703155)

The RIAA was pretty much damned-if-you-do damned-if-you-don't on their strategy. If the sue poor, non-powerful students, they will not get any money. If they sue the rich, powerful ones, hopefully their important daddy can fight it. I think they knew from the start it wouldn't last forever, but they probably thought that they could scare enough people by the time it blew up in their faces that it didn't matter. I mean the most attractive thing about this strategy to them was the price tag I'm sure.

Is it still ass foolproof and safe? (-1, Offtopic)

SharpFang (651121) | about 5 years ago | (#27702373)

I mean, currently, if I can't enter a secure PIN on my bluetooth device it doesn't have in its database, it won't allow me to install it. A bluetooth mouse - a standard HID device - won't work because it lacks the keyboard. Solution: send us the ID the mouse sends over bluetooth (some very obscure console commands), it will be added with the next release.

There are several such "flowers" currently - "for the good of the user, we won't let them do this, the fact they need it be damned."

argh, I miss the day when Linux motto was "It should be fun".

Re:Is it still ass foolproof and safe? (0)

Anonymous Coward | about 5 years ago | (#27702445)

Huh?

NO CHANCE!?!?! (4, Interesting)

furby076 (1461805) | about 5 years ago | (#27702429)

The procedures used by the RIAA the past 5 years in suing 'John Does' without their knowing about it have never been subjected to scrutiny by an appeals court, since most of the 'John Does' never learn about the 'ex parte' proceeding until it's too late to do anything about it.

Wait, I am missing something. In the US doesn't the prosecution have to have a defendent before they can start preceedings? They can investigate all they like but you can't prosecute without a defendent. What someone is going to knock on my door one day and say "BTW you have been found guilty of murder, your trial happened last month, your getting the chair"??

The RIAA opposed the motion, arguing that John Doe's appeal had no chance of success.

I enjoyed this one... "Your honor, don't grant the appeal, they have no chance of winning. It would be silly to even honor their request. BTW, if you do what we say they WILL have no chance of winning and that makes us right, so you need to do as we say because we are right and you would not want to be on the side of wrong, because we are right."

Re:NO CHANCE!?!?! (2, Funny)

Drakkenmensch (1255800) | about 5 years ago | (#27702519)

I enjoyed this one... "Your honor, don't grant the appeal, they have no chance of winning. It would be silly to even honor their request. BTW, if you do what we say they WILL have no chance of winning and that makes us right, so you need to do as we say because we are right and you would not want to be on the side of wrong, because we are right."

This is basically the lawyer-to-english translation of the RIAA legal strategy.

Re:NO CHANCE!?!?! (5, Informative)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27702589)

1. "Prosecution" is a criminal term; these are civil cases, not criminal cases.

2. Under American law you are required to give notice, and an opportunity to be heard, PRIOR to the court granting your motion. This has not occurred in the RIAA cases. It has been an ongoing flagrant violation of American law.

Re:NO CHANCE!?!?! (5, Interesting)

ausekilis (1513635) | about 5 years ago | (#27703039)

2. Under American law you are required to give notice, and an opportunity to be heard, PRIOR to the court granting your motion. This has not occurred in the RIAA cases. It has been an ongoing flagrant violation of American law.

What does that mean for past cases that were not settled out of court? Do they get reheard? Do their verdicts get overturned?

It seems to me that if a court is found to have not followed the letter of the law, some action regarding those involved should be taken. It could be a slap on the wrist for the Judge presiding the case, perhaps the lawyers on either side.

Re:NO CHANCE!?!?! (1)

twidarkling (1537077) | about 5 years ago | (#27702775)

Wait, I am missing something. In the US doesn't the prosecution have to have a defendent before they can start preceedings?

It's the "ex parte" portion of the proceedings that's important to that. It allows them to proceed against people not originally named, and not present, etc. It's basically a scum move on their part.

The RIAA Lawyer continued, stating (4, Funny)

pavon (30274) | about 5 years ago | (#27703027)

your appeal has no chance of success

make your time
HA HA HA HA ...


For great justice indeed.

Re:NO CHANCE!?!?! (1)

srleffler (721400) | about 5 years ago | (#27703145)

You're confusing criminal and civil law. There is no prosecution or defense in a civil case.

That aside, you've misunderstood the RIAA strategy. They file John Doe claims so they can subpoena records from the ISPs that identify who the defendants are. Once they know who the defendant is, they can proceed with a normal case. The RIAA bends the rules in multiple ways in the course of doing this, but the dodgy part is not the John Doe claim itself, but other details in how they go about it.

Give those Pirates What they Deserve! (2, Insightful)

MarkvW (1037596) | about 5 years ago | (#27702503)

(a) The pirates deserve to be slammed for STEALING (Yes I said it, because that's what it is!)!

(b) The pirates ALSO deserve all the due process and constitutional protection that the US has to offer--and the RIAA assiduously tries to ignore! You can't slam the thieves until the thieves get a FULL and FAIR day in court.

The Pirates deserve to be hammered, but only after every last one of their constitutional rights is respected!

Re:Give those Pirates What they Deserve! (3, Insightful)

Chlorine Trifluoride (1517149) | about 5 years ago | (#27702539)

First off, why would Somalis have US Constitutional protection? Second, why would the RIAA care?

Re:Give those Pirates What they Deserve! (1)

ChefInnocent (667809) | about 5 years ago | (#27703611)

To answer the first question, because we brought one here to be tried [yahoo.com] . The second, because with actual pirates infringing on the meaning of piracy, they may have to rethink their use? It may become more difficult in the public mind-share how downloading a song equates with bands of hoodlums taking over ships, holding hostages, and murdering the crews. Rihanna got her black eye from a bad relationship choice, not someone "illegally" downloading her latest CD.

Re:Give those Pirates What they Deserve! (1)

Whatsisname (891214) | about 5 years ago | (#27703641)

Because the "protections" offered by the US Constitution protect all people within the jurisdiction of the United States, not just US citizens. In fact it doesn't really offer 'protection' to anyone, but explicitly restricts the powers available to the government.

Re:Give those Pirates What they Deserve! (2, Insightful)

Walterk (124748) | about 5 years ago | (#27702803)

It's not stealing though, it's breach of contract.

Re:Give those Pirates What they Deserve! (1)

ausekilis (1513635) | about 5 years ago | (#27703101)

It's not stealing though, it's breach of contract.

It's breach of contract for the original person who "made available". When you first click that EULA on software, part of it has the usual "unauthorized reproduction" legalese. If I buy a computer game, rip it to ISO and throw it on a torrent site, that's breach of contract. Likewise if I buy some other good that has some sort of disclaimer about unauthorized resale, say I pick up beer in bulk at Costco, then sell it to my friends in my own "bar". Or I just leave them on the front porch for whatever reason.

However, if I'm the one that sees the torrent and decide to download it, that can be construed as stealing. It's the same sort of deal as the guy that walks by my front yard, sees the beer, and helps himself.

IANAL and so on... If someone knows a better example, or cares to expand a bit, feel free.

Re:Give those Pirates What they Deserve! (3, Informative)

Walterk (124748) | about 5 years ago | (#27703571)

It isn't stealing, as stealing means something was taken. In the case of downloading, it's copied not removed from the source.

Taking a CD from a shop is stealing and a criminal act. Downloading a CD is infringement of copyright and therefore a civil matter.

All your analogies involve removing a physical item and that constitutes theft.

Re:Give those Pirates What they Deserve! (1)

Bigjeff5 (1143585) | about 5 years ago | (#27703595)

Actually the court has been fairly consitantly saying that recieving copyright-infringed goods is not illegal. It's the copier/distributor (aka the uploader) who is breaking the law, not the person who recieves the goods (aka the downloader).

Lately the courts have been saying you can download whatever you want, because copyright law makes no statements about recieving copied goods. It's a copyright restrcition, not a receiveright restriction. You certainly don't have the right to make copies of that work to distribute, however, and that is what they have to go after. That's what makes proving infringement for small time players so tough for the RIAA.

It's pretty easy to get a single instance of someone infringing, just plug in to any torrent that is sharing an unauthorized copy of whatever and you've got hundreds of IP addresses to start from. But to make it worth suing over, they need many instances from one individual. Finding IP addresses distributing enough music to be worth going after is tough, and verifying individuals behind those addresses is significantly more difficult - many times impossible.

It's an uphill battle, and they aren't getting away with scare tactics and dirty moves any more. I'd feel sorry for them if they weren't such pricks about it. Maybe if they'd gone about the process righteously to protect their interests I'd feel more sympathetic, but they've been asshats and dirty weasles the entire time. They desearve their comeupance.

Re:Give those Pirates What they Deserve! (5, Insightful)

Tgeigs (1497313) | about 5 years ago | (#27702843)

(a) The pirates deserve to be slammed for STEALING (Yes I said it, because that's what it is!)!

(b) The pirates ALSO deserve all the due process and constitutional protection that the US has to offer--and the RIAA assiduously tries to ignore! You can't slam the thieves until the thieves get a FULL and FAIR day in court.

The Pirates deserve to be hammered, but only after every last one of their constitutional rights is respected!

Assuming we're still talking about digital piracy here, it is NOT stealing, it is infringing. The two have separate legal meanings that have to do with a scarce good being taken away from another person/entity. Copying music does not take that original away, ergo it cannot be stealing, it is infringing.

Re:Give those Pirates What they Deserve! (0)

Anonymous Coward | about 5 years ago | (#27702859)

On a Previous article i said the same but as i was AC i got the Troll flag. Corrupted system we got here.

Re:Give those Pirates What they Deserve! (0)

Anonymous Coward | about 5 years ago | (#27703283)

You're just now figuring this out??? You must be new here.

Re:Give those Pirates What they Deserve! (2, Insightful)

dyingtolive (1393037) | about 5 years ago | (#27703029)

Fine. Its stealing. Its now criminal rather than civil. It turns into innocent before proven guilty and all that. Now pay going rate for each song THEY CAN PROVE were downloaded, in complete, as damages. 0.99 USD per song is far more reasonable better than 100.00 USD.

Re:Give those Pirates What they Deserve! (2, Insightful)

mangu (126918) | about 5 years ago | (#27703175)

(a) The pirates deserve to be slammed for STEALING (Yes I said it, because that's what it is!)!

(b) The pirates ALSO deserve all the due process and constitutional protection that the US has to offer

Unauthorized copying is not stealing because nothing was taken away from the original owner.

Distorting the accusation is, by itself, violating due process and the constitutional protection the accused deserves.

Re:Give those Pirates What they Deserve! (1)

drinkypoo (153816) | about 5 years ago | (#27703221)

The Pirates deserve to be hammered, but only after every last one of their constitutional rights is respected!

By calling them pirates, you are presuming them guilty. Nice fail.

Re:Give those Pirates What they Deserve! (1)

harl (84412) | about 5 years ago | (#27703279)

If it's stealing then why don't they have them arrested for theft?

Re:Give those Pirates What they Deserve! (1)

slimjim8094 (941042) | about 5 years ago | (#27703401)

I guess you're trolling.

I have stolen your car if I take it from your driveway, even if I give it back later. Why do you care? Because then you don't have a car.

What if there was a way to get your car, but with you still having it, and use both simultaneously? That's a copy - and unless you're some kind of prick, it doesn't bother you. You get your car, with no changes, and so do I.

It's infringing because I don't have a legal right to make that copy.

These people may or may not be infringing, but as there is no deprivation (except of maybe-money) there is no theft. It's not theft if you don't lose something, and it's not theft if you make less money than you maybe could.

Confused (4, Interesting)

Anonymous Coward | about 5 years ago | (#27702565)

I am constantly hearing on /. that mediasentry does not have an investigators license. I have to say I don't understand the process that well, but I figured it would be illegal to operate without a license. Shouldn't the cops or fbi be shutting down the company? I am glad to final hear that case evidence will final be forming for the RIAA's process. It will make future attempts by the RIAA much harder if the case is thrown out.

Re:Confused (1)

tinkerghost (944862) | about 5 years ago | (#27703515)

Shouldn't the cops or fbi be shutting down the company?

It really depends on the exact statutes you're working with. Since they technically do nothing except monitor public information, it's not illegal anywhere I am aware of. Now, the question is "Is the evidence acquired suitable for presentation in court?" Since MediaSentry (Or whatever their name is this week) isn't licensed, has no oversite, and doesn't use standardized & validated procedures to obtain it's information, the answer should be no.

Essentially, the RIAA obtains questionable information & takes it to court. In a normal case, you could show up & tell them to get stuffed & the court should toss it because MediaSentry isn't allowed to present anything to the court & the RIAA's request for the information from the ISP boils down to "Because we want it!"

Let me be the first to ask... (1)

Emb3rz (1210286) | about 5 years ago | (#27702571)

What do 'short shrift' and 'misjoinder' mean, in english?

And before someone gets smart and says 'let me google that for you,' I already have.. it still doesn't make sense to me:

Misjoinder
An incorrect union of parties or of causes of action in a procedure in criminal or civil court
Shrift
the act of being shriven
Shriven
shrive - To hear or receive a confession (of sins etc.); To prescribe penance or absolution; To confess, and receive absolution

A little help, lawyery or IANAL-y friends?

Re:Let me be the first to ask... (1)

NeoSkandranon (515696) | about 5 years ago | (#27702647)

Definitions of short shrift on the Web:

        * a brief and unsympathetic rejection; "they made short shrift of my request"

Re:Let me be the first to ask... (4, Informative)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27702653)

By "short shrift" I meant the Magistrate Judge and the District Judge paid scant attention, and just blew it off without paying careful consideration to the law or to the paucity of evidence.

"Misjoinder" is a legal term. In this case what it refers to is the fact that the RIAA sued 16 "John Does" in a single case, even though the federal rules clearly required them to bring 16 separate cases, and even though in 2004 they were ordered by two federal judges to cease and desist from that practice.

Re:Let me be the first to ask... (1)

langelgjm (860756) | about 5 years ago | (#27702655)

"misjoinder" I'm guessing refers to their practice of binding a bunch of defendants together (thus the "Does 1-16". Given that they most likely have no relation to one another, there's no good reason to bind them together like that. It's done purely for the RIAA's convenience.

Re:Let me be the first to ask... (1)

nomadic (141991) | about 5 years ago | (#27702701)

Misjoinder means you've basically brought the wrong defendant into the lawsuit.

Short shrift means quick rejection, but it is not a legal term.

Re:Let me be the first to ask... (0)

Anonymous Coward | about 5 years ago | (#27702793)

Your Google-fu sucks.

Search for the phrase "short shrift" and you'll get plenty of results. When you convict a person and give them the death penalty it is customary to let them talk to a priest before the execution. When you are railroading the defendant you rush them straight to the gallows without wasting time on such frivolities.

Blame Shakespeare, he's the one who coined the phrase.

Interpretation Non-Lawyers (3, Informative)

Anonymous Coward | about 5 years ago | (#27702669)

This is the first time an appeals court has examined whether or not having a court hearing without the presence of the defendant (ex parte preceding) is permissible given such little evidence, no real damages incurred by the plaintiff (insufficiency of complaint), whether or not the given court is even the right place to hear the complaint (lack of personal jurisdiction over the defendants), whether or not lumping all of these defendants together as a collective group is legitimate (improper misjoinder of the defendants), and whether or not it's complete BS that the RIAA is using a private group to invade individual's privacy to obtain information (illegal procurement of evidence).
 
That last description may be a little biased.

DOJ Intervention, NYCL? (0)

Anonymous Coward | about 5 years ago | (#27702777)

With the appointments in the Justice Department going to former(~current) entertainment industry representatives(**AA), what kind of mayhem can they cause in a situation like this?

We've already heard from them once on this subject, but how can they intervene on this specific trial/appeal?

Isn't RIAA's request reasonable? (0, Troll)

Saib0t (204692) | about 5 years ago | (#27702789)

IANAL, etc. and I'm no fan of the MAFIAA at all... However...

I just read the lower court judge's ruling in denying the motion to quash and I frankly don't see a problem with the judge's reasoning.

The first amendment response by the Does is stupid. P2P considered speech?
Insuficiency of the complaint? It seems to me it states clearly what/when.
Unlicensed investigator? It's a civil trial, "illegal evidence" applies only to criminal cases, and by government agents, not by civil parties. Am I missing something? It's great that the appeal court is willing to hear it however, but I fail to see how an entity claiming copyright infringement could go on to discover the identities of infringers without going through that motion... Anyone care to explain?

Iterrogative pronouns (3, Insightful)

Mr. Underbridge (666784) | about 5 years ago | (#27702841)

nsuficiency of the complaint? It seems to me it states clearly what/when.

How about "who?"

Re:Iterrogative pronouns (1)

Saib0t (204692) | about 5 years ago | (#27703663)

nsuficiency of the complaint? It seems to me it states clearly what/when.

How about "who?"

The who is the whole point of the case, they don't know who they are so they bring a suit to find out.

Re:Isn't RIAA's request reasonable? (5, Funny)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27703061)

I'm no fan of the MAFIAA at all... However...

Troll alert.

Re:Isn't RIAA's request reasonable? (0)

Anonymous Coward | about 5 years ago | (#27703529)

Holy crap, GP just got served by NewYorkCountryLawyer!

Re:Isn't RIAA's request reasonable? (3, Insightful)

gnasher719 (869701) | about 5 years ago | (#27703199)

Unlicensed investigator?

An unlicensed investigator is not allowed to investigate at all. You can ask a friend to check what your wife is doing when you're not at home, you can ask a licensed investigator, but if you hire an unlicensed investigator, he or she is breaking the law. In other words, the so-called "evidence" was found by someone who was breaking the law in doing so. That on its own is not the problem, if the evidence can be checked independently of how it was found. If an unlicensed investigator finds physical evidence, calls the police and the police checks the physical evidence, that's fine. But here, the evidence is the investigator saying "I downloaded this music from this computer". Since the investigator was already breaking the law, clearly anything he or she says cannot be trusted.

Hiring unlicensed investigators also means that the person suing cannot be trusted. In a civil court case, the judge goes by the weight of the evidence. If I can show that I am sued by a person who used illegal means to find evidence, that makes it more likely that the same person will be lying about other things as well.

Plaintiff's footnote (2, Insightful)

Locke2005 (849178) | about 5 years ago | (#27703161)

In the Plaintiff's Motion to Quash, they state in footnote 1, "Defendants rely on the same arguments Mr. Beckerman has raised and lost in other cases." Strangely enough, they fail to cite the actual cases in which these arguments have been "raised and lost." Are there actual legal precedents in which Mr. Beckerman's arguments have been found lacking, or are the RIAA lawyers just blatantly lying?

Re:Plaintiff's footnote (1)

MarkvW (1037596) | about 5 years ago | (#27703291)

It is interesting that you note this.

Such an argument is a slimy one. Lawyers argue precedent. Precedent is formed in our appellate courts--not our trial courts. It's very bad form (and not particularly helpful to the judge) to argue precedent from the behavior of other trial courts.

Re:Plaintiff's footnote (4, Informative)

NewYorkCountryLawyer (912032) | about 5 years ago | (#27703435)

In the Plaintiff's Motion to Quash, they state in footnote 1, "Defendants rely on the same arguments Mr. Beckerman has raised and lost in other cases." Strangely enough, they fail to cite the actual cases in which these arguments have been "raised and lost." Are there actual legal precedents in which Mr. Beckerman's arguments have been found lacking, or are the RIAA lawyers just blatantly lying?

There are some motions we have made which we have lost in the lower courts, however we prevailed on the portion of our motions which was directed to the "making available" theory, and most other lawyers have prevailed on the misjoinder issue.

In the appeals court, all of that is basically academic. The appeals court is here to give the district courts direction, not the other way around.

Lies, damn lies, statistic, and RIAA motions. (1)

Locke2005 (849178) | about 5 years ago | (#27703503)

P2P users who distribute (upload) and copy (download) copyrighted material violate the copyright laws.
It is not clear that every copy made of copyrighted material violates copyright laws. For example, if I make a backup copy of a disk, store it on a network drive, and then transfer it back to my computer, have I violated copyright laws?
SUNY maintains logs that match IP addresses with their users' computer hardware.
SUNY maintains logs that match IP addresses to MAC layer addresses. It is well known that these MAC addresses can be spoofed on virtually all network adapters (Hint to infringers: override the default address assignment on your Ethernet or Wireless card, then switch it back when somebody accuses you.)
Plaintiffs' allegations meet the heightened scrutiny required for expedited discovery
I believe the criteria for expedited discovery is that irreparable damage is done to the plaintiffs if discovery is delayed. Plaintiff's own statements that millions of people are using P2P argues against this; one more or less out of millions could hardly make a difference in the economic damage done.
The Columbia court noted that discovery of infringer's identity from the ISP is appropriate when plaintiff could (1) identify the party with sufficient specificity to demonstrate that the defendant is a real person (2) identify all previous steps to locate the defendant and, (3) establish that plaintiff's suit could withstand a motion to dismiss. Even if this were the standard, Plaintiffs have easily satisfied it in this case.
Bullshit. On all three points.
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