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RIAA Conceals Overturned Case

Zonk posted more than 6 years ago | from the shoe-is-on-the-other-foot dept.

The Courts 211

NewYorkCountryLawyer writes "When a Judge agreed with the RIAA's claim that 'making available' was actionable under the Copyright Act, in Atlantic v. Howell, the RIAA was quick to bring this 'authority' to the attention of the judges in Elektra v. Barker and Warner v. Cassin. Those judges were considering the same issue. When the that decision was overturned successfully, however, they were not so quick to inform those same judges of this new development. When the defendants' lawyers found out — a week after the RIAA's lawyers learned of it — they had to notify the judges themselves . At this moment we can only speculate as to what legal authorities they cited to the judge in Duluth, Minnesota, to get him to instruct the jurors that just 'making available' was good enough."

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211 comments

MY GOD! (3, Funny)

heinousjay (683506) | more than 6 years ago | (#20883181)

The RIAA wouldn't sabotage their own chances in court? The humanity!

Re:MY GOD! (4, Informative)

GodInHell (258915) | more than 6 years ago | (#20883777)

They have a profesional responsabiliy (as lawyers) to inform the court when an authority they cited in support of their legal case gets overturned.

-GiH

Re:MY GOD! (4, Interesting)

Romancer (19668) | more than 6 years ago | (#20883843)

Might even be more than professional responsibility. Isn't there some kind of LAW for this sort of thing? Like presenting false evidence or fraud?

Presenting the evidence in the first place sounds fine but when they learned that the case was overturned, shouldn't they be required by law to inform the court that the evidence they submitted had been negated.

To me it sounds like submitting matched DNA evidence at the beginning of a trial and then learning that it was actually inconclusive halfway through the trial and not informing the defence. Isn't that illegal?

Re:MY GOD! (3, Interesting)

hedwards (940851) | more than 6 years ago | (#20883867)

They also have a duty to not have experts that perjure themselves to advance a case. As well as not basing entire cases on speculation. And making some effort to allow for the subpoenas to be challenged before they are formal court orders.

While the definition of perjury seems in recent years to have slid somewhat, claiming to be an expert in order to pass off misleading information as fact. Especially when it is used to manufacture evidence which shouldn't be admissible in court to prop up a poorly thought out case.

Ethics thus far have not been of any real concern to the RIAA, so I can only imagine why they would want to start behaving at this juncture having already gotten away with far more than is common. Seems to me that if they haven't been worried about being disbarred for their less than professional behavior up until now that this won't be the tipping point.

Re:MY GOD! (4, Insightful)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883895)

They also have a duty to not have experts that perjure themselves to advance a case. As well as not basing entire cases on speculation. And making some effort to allow for the subpoenas to be challenged before they are formal court orders. While the definition of perjury seems in recent years to have slid somewhat, claiming to be an expert in order to pass off misleading information as fact. Especially when it is used to manufacture evidence which shouldn't be admissible in court to prop up a poorly thought out case. Ethics thus far have not been of any real concern to the RIAA, so I can only imagine why they would want to start behaving at this juncture having already gotten away with far more than is common. Seems to me that if they haven't been worried about being disbarred for their less than professional behavior up until now that this won't be the tipping point.
Well I can see you've been doing your reading. Agreed, they will do anything they can get away with.

Re:MY GOD! (3, Informative)

ari_j (90255) | more than 6 years ago | (#20884077)

It's not that. It's that the lawyers have ethical duties relating to what authority they cite and possibly relating to an affirmative duty to disclose unfavorable legal authority.

Countersuing Microsoft, Sony, etal (5, Insightful)

packetmon (977047) | more than 6 years ago | (#20883213)

Personally, I would like to see someone march a slew of television and radio commercials from vendors and how you can "Share your favorite files, songs!" and sue the vendors who touted the abilities to do so by buying their products. How many advertisements has one seen from computer manufacturers and software developers telling people about the ability to store, share and "make available" their favorite files and songs.

Re:Countersuing Microsoft, Sony, etal (1)

Jay L (74152) | more than 6 years ago | (#20883291)

The RIAA certainly sucks, and IANAL, but - do they actually have any obligation to point out to the judge when case law contradicts their stance? Even if it's the very same case that previously supported their stance, and thus was cited by them?

My very limited understanding of the adversarial system of law is that each side is expected to highlight the relevant cases that support their claims, but not necessarily to argue against themselves.

Re:Countersuing Microsoft, Sony, etal (1)

Anonymous Coward | more than 6 years ago | (#20883431)

The Full Disclosure (law) entry on Wikipedia is a bit 'empty'.. ironic :) http://en.wikipedia.org/wiki/Full_disclosure_(disambiguation) [wikipedia.org]

So.. going by the film My Cousin Vinny (Marissa Tomei yum yum) they do have to inform the other side. That might only be the case for criminal trials though.

Re:Countersuing Microsoft, Sony, etal (1)

falcon5768 (629591) | more than 6 years ago | (#20883647)

nope its the case for any trial. If one side knows about something that can effect another case they are in, they are obligated by law to let the other side know about it or risk the whole cause being overturned on appeal.

Re:Countersuing Microsoft, Sony, etal (0)

Anonymous Coward | more than 6 years ago | (#20883911)

So you're saying they have to tell the other side or else they'll earn more money. Thats a really good plan.

Re:Countersuing Microsoft, Sony, etal (1)

Gr8Apes (679165) | more than 6 years ago | (#20883997)

Well, you know, there's always the chance they'll get disbarred. Not that throwing away 6-8 years of paid schooling should bother anyone.

Re:Countersuing Microsoft, Sony, etal (4, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883741)

When they sent the judge a copy of the case.... and they found out the decision had been vacated by the judge who issued it.... yes they had an obligation to notify the Court immediately.

How does this affect closed cases (4, Interesting)

phorm (591458) | more than 6 years ago | (#20884051)

Is there an allowance to get a case overturned/re-tried if there's evidence that the plaintiff did not fulfill their duty to the court (and the law)? It seems to me that if the RIAA lawyers were citing cases that were later overturned, and that this was the basis for the precedent that "making available" was valid as a form of distribution (and thus a key-point to the case), then it seems that the case may have very well gone the other way if the hadn't "cheated"

Re:How does this affect closed cases (4, Informative)

Anonymous Coward | more than 6 years ago | (#20884267)

Yes, it's called an appeal. Seriously, appeals are not meant to be just a re-evaluation of the matter. It is generally assumed that the lower court did their job, and an appeal is only considered if there are matters of law that weren't obeyed in the trial process. This might indeed be such a circumstance.

Re:Countersuing Microsoft, Sony, etal (4, Informative)

spiritraveller (641174) | more than 6 years ago | (#20884157)

do they actually have any obligation to point out to the judge when case law contradicts their stance?
Contrary to popular belief, a lawyer's obligations go further than just his client. Yes, a lawyer has a duty to his client, a very important duty. But also important is the lawyer's duty to the court.

A lawyer is an "officer of the court" and must be truthful to the court. A lawyer must inform a court of law that is on point and contradicts his argument. He can argue for a change in the law or for a finding that it is unconstitutional, but he cannot simply ignore bad law in hopes of fooling a judge.

That doesn't mean there aren't lawyers who break the rules. But those of us who care about the profession do not admire attorneys who lie to judges, opposing counsel, or anyone else for that matter.

Re:Countersuing Microsoft, Sony, etal (1)

networkBoy (774728) | more than 6 years ago | (#20884553)

IAAL, but you are not my client. This isn't legal advice. I probably didn't even think before I wrote it. Cheers!
I love your disclaimer. Most common sense one I've read in a long, long time.

If you are willing to divulge (sole curiosity on my part, and likely you've answered this elsewhere):
What kind of law do you practice and what about /. draws you here (I'm banking on all the *stunning* armchair IANAL banter myself...)
-nB

IANAL because they'd burn me at the bar :-)

Re:Countersuing Microsoft, Sony, etal (4, Insightful)

HexaByte (817350) | more than 6 years ago | (#20883331)

Better yet would be some nefarious prankster botting the RIAA leaders w/ file sharing software, and letting them go after themselves! If I can get out of a red-light camera ticket by making them prove I was in the drivers seat, how come the same doesn't hold for a computer that many people may have access to?

Re:Countersuing Microsoft, Sony, etal (1)

RattFink (93631) | more than 6 years ago | (#20884427)

If I can get out of a red-light camera ticket by making them prove I was in the drivers seat, how come the same doesn't hold for a computer that many people may have access to?

Put simply there are two different burdens of proof for civil and criminal cases. Criminal you need to prove beyond a reasonable doubt, and not being at the wheel is entirely possible but perhaps unlikely. A civil case however the burden is it being more likely then not, while it is possible that someone else used your computer it probably is not going to be assumed likely unless you have compelling evidence to the contrary.

Re:Countersuing Microsoft, Sony, etal (1)

TapeCutter (624760) | more than 6 years ago | (#20884611)

Where do you live? Here in Australia you have to sign a statutory declaration naming the driver if you intend to claim it was not you. The quite reasonable argument goes along the lines of: If the car was not stolen then who did you lend it to? If you answer "I don't know" their answer is: Perhaps you do lend your car to strangers thus voiding your insurance, you are still responsible for the car and I hope this fine will discourage you from that reckless practice in the future.

That is not possible with PC's but many people think it is. If you do drop evidence of massive fraud on their PC make sure the bot uninstalls without a trace.

Re:Countersuing Microsoft, Sony, etal (0)

Anonymous Coward | more than 6 years ago | (#20883625)

I think it's time for NewYorkCountryLawyer and his clients to understand that their will be civil repercussions when the misuse copyrighted material belonging to someone else.

rip, mix, burn! (0)

Anonymous Coward | more than 6 years ago | (#20883691)

Remember that one?

Ya, you have a good point. And all the ISPs touting how fast their service is and the ability to "download movies at light speed!" and so on.

Re:Countersuing Microsoft, Sony, etal (0)

Anonymous Coward | more than 6 years ago | (#20883735)

Reasonable people understand that it's ethically wrong to buy a creative work for your own use, and than give it away to all your friends so they don't have to buy it. Most people understand this ethical truth as a separate thing from the question of if or not a Mega-Huge-Record-Company is "evil" or not.

Re:Countersuing Microsoft, Sony, etal (4, Insightful)

ortholattice (175065) | more than 6 years ago | (#20884031)

Reasonable people understand that it's ethically wrong to buy a creative work for your own use, and than give it away to all your friends so they don't have to buy it. Most people understand this ethical truth as a separate thing from the question of if or not a Mega-Huge-Record-Company is "evil" or not.

Thank you for bringing this to my attention! I wasn't aware of this "ethical truth", and I'll definitely have to mend my ways.

The next time I buy a CD, I'll play it only when I'm sure that no one else is around to hear it, unless I know they also have bought a copy. But even that may be ethically questionable since they're not listening to their copy but to mine. Like homeopathic water, even though the sound waves are physically indistinguishable, it might be possible they have a "memory" of which CD they came from - which might not be the same physical CD my friend purchased. Oh, the immorality!

And when I bring my friends over to watch a movie, I'll make sure they bring their own DVDs and DVD players, and carefully position everyone so they can't peak at the other guy's copy being played, thus preventing any possibility of ethical leakage.

Re:Countersuing Microsoft, Sony, etal (1)

networkBoy (774728) | more than 6 years ago | (#20884565)

[homer]mmm... ethical leakage[/homer]

Sorry, but that's all I got from your sarcasm. A+ for effort though.
-nB

Appealing to the /. masses? (0)

Anonymous Coward | more than 6 years ago | (#20883987)

I call bullshit.

I have hundreds of files and loads of songs I can store, share and make available leagally. No one should EVER be held liable for their customers using their (legal) products to facilitate crime.

Of course, if there was a law against incitement to violate copyright that might be a different thing. There isn't, and it is so so so so so so so so wrong that I think their needs to be.

So What (1, Informative)

WebHostingGuy (825421) | more than 6 years ago | (#20883233)

This happens all the time. Of course the RIAA is not going to "rush" the court to bring forth the case. Geez, get a grip. It's like no one has ever seen the way the legal system works. When something bad happens to you, you aren't the one to bring that up in the court--the other guy does. It's amazing to see the amount of stories about how the RIAA does something in court and how people are shocked, shocked I tell you, to believe they did that. Let me fill you in--most of the stuff they do is what all lawyers do.

Re:So What (0)

Anonymous Coward | more than 6 years ago | (#20883299)

"When something bad happens to you, you aren't the one to bring that up in the court"


Really?

Re:So What (1)

Acrimonymous (1164185) | more than 6 years ago | (#20883421)

Yes, lawyers are paid to convince people they're right, not to BE right.

However, the point is that the RIAA continued to press a case based on what MIGHT HAVE happened when no finding ever - before, during, or after that current litigation - was left standing that said that it actually DID happen. In effect, people were persecuted by the court because they might have committed infringement, not because anybody has yet determined that they actually did. It's less about the RIAA - slimy and dishonest as the tactic was - and more about how shitty the court system is sometimes.

Zonk just doesn't post things that are properly written, that's all.

Re:So What (5, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883637)

When a lawyer submits a case to the Court, and then discovers that the case was overturned, he is obligated to notify the Court immediately.

Re:So What (0)

Anonymous Coward | more than 6 years ago | (#20884059)

The problem with obligations for lawyers is that in reality there appears to be no accountability when said obligations are neglected. So are they really obligations then? For all intents and purposes, it would seem not to be the case that they are.

Re:So What (0)

Anonymous Coward | more than 6 years ago | (#20884395)

I don't support the RIAA, but.... No one is obligated to tie the noose and hand it to the executioner.

The RIAA is trying to win cases, not PR points. Never forget that.

Illegal??? (1)

Gnostic Ronin (980129) | more than 6 years ago | (#20883237)

I wouldn't expect the RIAA to report a decision that hurts them, but I think that could be an illegal act. I think not telling the whole truth about the precident in a case is illegal. Does anyone know for sure? I'd be amazed if they got away with this, but I'm not shocked that they'd try it.

Re:Illegal??? (5, Insightful)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883689)

It is highly improper. If a lawyer sends a copy of an authority to a judge, and then learns that the authority was vacated by the judge who wrote it, while there is still a motion pending on the judge's desk, he is obligated to immediately notify the judge of the change. A lawyer is not only a representative of the client; he is also an officer of the Court.

legal appeal (1)

djlosch (556330) | more than 6 years ago | (#20883239)

Unless she gets an appeal, it won't matter. Failing to cite a single case in a different jurisdiction is hardly a sanctionable offense.

Re:legal appeal (5, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883671)

She has plenty of grounds for an appeal. E.g.,
-incorrect jury instructions which removed the plaintiffs' burden of proving a transfer of actual files
-the unconstitutionality of a verdict for about 30,000 times the actual damage, and
-allowing an "expert" to testify who doesn't meet the admissibility requirements under the Federal Rules.

I'm sure there were many others, but I wasn't there so I can't give you the list. I can tell you that the above three would be sufficient -- in fact each would be sufficient on its own -- to get a reversal.

From what you say it sounds plausible (1)

xtracto (837672) | more than 6 years ago | (#20884289)

It sounds quite plausible to make an appeal, however after reading some articles about the woman and the overall case I find it very difficult that she is going to proceed, mainly because of the money.

The problem with the appeal I guess is that she still does not know if she is going to *win* the appeal, and, if she loses the appeal then she will have to pay the attorneys fees plus the fine she must pay now.

However, I would really like to see this case continue, I myself do not know if she is guilty or not, and from all the information I have got, it seems everything seems to show that she indeed performed the file sharing. However, I would really like an appeal because I believe there are several issues that must be brought forward with regards of the state of the laws and the verdicts and the only way to do that is to continue litigating.

Please correct me if I am wrong but isn't it the case that, when doing the appeal, it is done to a higher court?, or specifically to some place which has higher law status than the ones that made the decision?

I ask this, because, in Mexico happened something similar (bear with me and read a bit more), where a woman (Lydia Cacho) unveiled a pedophile ring where a lot of very powerful Mexican people was and they tried to put her in jail and whatnot. She (and her lawyers) started fighting legally, but, as we all know in corruption in Mexico is very high and they had to go appealing all the way up to the Supreme Court because all the lower courts were indeed corrupted. [wordpress.com]

Therefore, the idea is the same (I think) in that, if the lower courts in the USA are still corrupted by the hand of the RIAA, it may still be possible to appeal to higher courts, until there is someone who can really hold the law.

 

Oh, yeah... (-1, Troll)

Richard_at_work (517087) | more than 6 years ago | (#20883247)

because I'm sure the job of the plaintiffs team to do the job of the defence as well. Seriously, how is this news? The plaintiff brings information to court in support of his case, the defence brings information to court to destroy the case - there's no question of an overlap here.

Re:Oh, yeah... (2, Informative)

belmolis (702863) | more than 6 years ago | (#20884429)

Sorry, this is wrong. As officers of the court, lawyers have obligations to the court that override their obligations to their clients. For example, a lawyer may not suborn perjury by his or her client and may not intentionally misrepresent the facts of the case. When a lawyer submits case citations, they must, as far as he knows, be valid. If a decision is overturned while the motion is still before the court, the attorney is obligated immediately to notify the court. Failure to do so is fraud upon the court. Not only will the defendant here have an additional ground for appeal but the RIAA attorneys are subject to sanctions.

My head is spinning (1)

AmaDaden (794446) | more than 6 years ago | (#20883273)

Every few days there is another RIAA story and every story seems to be going in a different direction. they lose [slashdot.org], they win [slashdot.org], they lose [slashdot.org]... ugh. I'm just as pissed about this stuff as the next guy and I do like to know what is going on; But when are we going to have this stuff get to the point where we can see a real change?

Re:My head is spinning (4, Insightful)

janrinok (846318) | more than 6 years ago | (#20883319)

I'm not an American, so please forgive me if I'm not as knowledgeable of your legal system as you are.

But when are we going to have this stuff get to the point where we can see a real change?

Just as soon as you do something about getting it changed.... What is required? Are you demanding it? Or is it someone else's problem? Please don't take offence, but I've read the stories here that you have. I agree, it isn't changing, but perhaps that's because no-one is making it happen.

Re:My head is spinning (0)

Anonymous Coward | more than 6 years ago | (#20883487)

Of course no one is demanding it. The Slashdot readers may be doing so but no one else is. America has become a nation of apathy. Most people just don't care about any political issues, or at least not enough to campaign their views or write their senators/representatives. Sure most people have beefs with at least one law or policy, but most just dismiss it, don't care enough to fight it, or just bend over and accept it, grumbling under their breath ("Yeah it sucks, but what can you do?"). These people are great at complaining, but that's pretty much where the participation in the political process ends.

This isn't to say that there aren't any people at all that participate in politics (watchdog groups, advocates, lobbyists, etc.), but your average American is generally preoccupied with more personal problems and doesn't really care or have time to care about whether or not current policy or a change in policy is a good idea.

Re:My head is spinning (1)

heinousjay (683506) | more than 6 years ago | (#20883929)

I've said it before - "WE WANT FREE ENTERTAINMENT" isn't exactly one of the great rallying cries.

Re:My head is spinning (1)

AmaDaden (794446) | more than 6 years ago | (#20884633)

I've said it before - "WE WANT FREE ENTERTAINMENT" isn't exactly one of the great rallying cries.
I don't think most people here are demanding that. We want FAIR entertainment. $1 for a crippled low quality song is too much. On top of that most of that dollar does not even go to the artist. Since the current system is ass backwards the pirating underground got huge. I would love to know how much of this money is going to the person who's songs were 'stolen' in these cases. I'll bet that not a dime has made it back to them.

Re:My head is spinning (4, Informative)

Creepy Crawler (680178) | more than 6 years ago | (#20883617)

Well, our country is a representative republic. In other words, we dont vote on laws. We vote "Congressmen" and presidents in for that instead.

We have 3 branches of Govt: Congress, Judicial, and Executive.

Congress is a bicameral entity (similar to the house of lords and commons in the UK). Senate (one of those bodies) is comprised of 100 members. There are 2 from each state, so that every state has equal representation.

The other part of Congress is the House. It is made up of 435 members, representing population makeup through the states. This is so that more populated states can influence the law more, as there is more people affected by the law.

The executive branch represents the President, bureaucrats and others in executing laws made by Congress, however that idea has been perverted. The way the US looks now, the Executive branch (President) looks like they are the Judge, jury and executioner.

The way a law is passed: Congress writes a law (well, House and Senate write their own versions which must be arbitrated by committee). When/if law is passed by a simple majority, 50% +1, then said law goes to the presidents desk. If president signs, it is a law. If not, it is sent back to Congress for a 67% majority to veto the presidents choice.

The last branch is Judicial. They are the ones to rule on laws and breakings of said laws. The highest court is the Supreme Court, which there are 9 appointed judges (appointed by the Senate) which have lifetime seats. They rule purely on Constitutionality of laws passed by Congress. They have the ability to pass judgment on laws, strike them down, or define unclear terms. Many see that the Supreme court is probably more powerful than Congress or the Presidency.
_____

Now, how companies pass "Laws" as you probably have heard on Slashdot:

Congress doesnt exist in a vacuum, but instead well entrenched and 'sponsored' by different entities and interests. For example, Maine (a state) has heavy lumber interests, so the lumber industry donates money to the said political party. Even though there is no obligation for the party to do anything, they do the lumber entities interests in making law favorable to them.

Some lobbies have grown extremely powerful. For example, the RIAA is a lobby group brought forth by the Big 5 media companies. Big Pharma is another lobby, mainly on medical drugs. These companies and groups can literally buy laws by supporting both parties (the Republicans and Democrats) with their money coffers.

For indiduals, we have no recourse for bad laws other than voting the congress/president in or out

Re:My head is spinning (3, Informative)

Nephilium (684559) | more than 6 years ago | (#20883921)

The way a law is passed: Congress writes a law (well, House and Senate write their own versions which must be arbitrated by committee). When/if law is passed by a simple majority, 50% +1, then said law goes to the presidents desk. If president signs, it is a law. If not, it is sent back to Congress for a 67% majority to veto the presidents choice.

Also, the President can not sign the bill, and in seven days it becomes law. This would usually be done for either bills that don't allow for a big press conference, or for ones in which the President doesn't support, but knows the veto will be overturned.

The last branch is Judicial. They are the ones to rule on laws and breakings of said laws. The highest court is the Supreme Court, which there are 9 appointed judges (appointed by the Senate) which have lifetime seats. They rule purely on Constitutionality of laws passed by Congress. They have the ability to pass judgment on laws, strike them down, or define unclear terms. Many see that the Supreme court is probably more powerful than Congress or the Presidency.

Another mistake here, the Justices are appointed by the President, and then confirmed by the Senate.

Oh, and one other duty of the Executive branch is that the Vice President presides over the Senate, and casts tie-breaking votes (but only votes if there is a tie).

Nephilium

Who's slacking? (0, Troll)

SailorSpork (1080153) | more than 6 years ago | (#20883287)

The issue here isn't that the RIAA has unethical lawyers, its that the defense has crappy, undiligent lawyers. Slashdot seems to be saying "shame on the RIAA lawyers for not doing the job for both side's lawyers!" Gimme a break.

Re:Who's slacking? (1)

(H)elix1 (231155) | more than 6 years ago | (#20883443)

The RIAA looks like it is specifically targeting folks who do not have the resources to actually mount a defense.

Re:Who's slacking? (3, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883757)

Almost nobody targeted by the RIAA has the resources to withstand the $500,000 or so in legal fees the RIAA is willing to throw into a case.

Re:Who's slacking? (2, Informative)

networkBoy (774728) | more than 6 years ago | (#20884609)

Sadly this is true.
One of the admins of a site parallel to my own gripe site (sig) was taken to court by Farmers. The estimates are that they spent north of $700K to litigate the case. His legal fees were in the $200K territory. It was only through heaps of pro-bono time and assistance from his home-owners insurance that he was able to fight the case, and his is one with gobs of precedent (gripe sites/free speech/fair use). In the end the case was settled out of court and part of the settlement was a confidentiality clause (I'm assuming this is SOP) so I don't know the details of the deal, but his site is still up and last time I was on the phone with him I asked him how he was financially, with his house and such, and got a positive answer.

It's only because they "lost" that case and because I'm in California with its wonderful SLAPP-Back statue that I think they have not outright sued me... yet. That and my riveting response to their C&D letter: http://www.farmersreallysucks.com/editorialtakedown1.shtml [farmersreallysucks.com].

The main difference I see (and am disturbed by) between cases like Rene's and the RIAA cases is the dragnet methods the RIAA use for identifying targets. The rest I see as fairly uniform IP sleaze law practice.
-nB

Re:Who's slacking? (1)

Speare (84249) | more than 6 years ago | (#20883739)

There is a moral obligation (and a legal one in criminal cases) that ALL evidence that could exculpate the accused party MUST be shared with the defense. Two different defendants have two different cases going on with two different defense teams. (In the RIAA's case, that's 20,000 defendants.) The defense team may not be aware of new developments in other cases, but the one common party to all these cases does know, and should be communicating this appropriately. It's called ethics.

Re:Who's slacking? (4, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883837)

1. It's more than a moral obligation, it's also a legal obligation.
2. The same RIAA lawyer is supervising, and aware of everything going on in, all 3 cases.

Disbarrment? (1)

Gr8Apes (679165) | more than 6 years ago | (#20884069)

So when will this lawyer be disbarred for obviously, knowlingly, and willingly breaking the law, not to mention bringing disrepect and irreparable harm to the image of the courts and integrity of lawyers?

Re:Who's slacking? (1)

Speare (84249) | more than 6 years ago | (#20884559)

NYCL, thanks for the clarification on #1. I was fairly sure of myself for criminal cases (though IANAL), but didn't feel as confident with my assertion for civil law.

Re:Who's slacking? (1)

Jafafa Hots (580169) | more than 6 years ago | (#20884517)

if the RIAA lawyers not breaking the law would be doing the defense lawyer's job for them, then you're right.

In other words, you're wrong.

cascading dependencies (1)

cathector (972646) | more than 6 years ago | (#20883297)

what happens in law when Decision C is made based on earlier Decisions A and B,
and then Decision A is reversed ?

What An Outrage! (-1, Flamebait)

Anonymous Coward | more than 6 years ago | (#20883335)

I, for one, am absolutely outraged that the RIAA didn't go to court in order to present evidence AGAINST their own case. And Rockstar should have been fair and presented Jack Thompson's evidence for him as well.

Delaying the Inevitable (2, Insightful)

Anonymous Coward | more than 6 years ago | (#20883363)

So it gets turned over on appeal...and it happens enough times that these lawsuits become a waste of their time. One can only hope that they start losing countersuits, finally getting a clue that their outdated business model that screws over artists and consumers has run its course.

Re:Delaying the Inevitable (0)

Anonymous Coward | more than 6 years ago | (#20883785)

So it gets turned over on appeal...and it happens enough times that these lawsuits become a waste of their time. One can only hope that they start losing countersuits, finally getting a clue that their outdated business model that screws over artists and consumers has run its course.
Till then, how many settlements will be made with people who can't afford a lawyer or the prospect of getting hit with such a settlement in court? You can bet neither the appeal nor this decision being tossed will get near the news coverage that the original decision got. Further, the details of the reasons why decisions are made and the details on the quality of evidence will remain undisclosed to the general public by the major media.

Spread the word to your friends and fellow workers or students. Don't let the settlement come up in conversation without mention of "making available" being slipped in gives this a strong chance to be tossed on appeal and that questions have been raised in other cases as to the constitutionality of such per song prices leading to obnoxiously high settlements.

Re:Delaying the Inevitable (1)

ScrewMaster (602015) | more than 6 years ago | (#20884497)

The problem here is that the RIAA is nothing but a figurehead, a lightning rod, a distraction, that draws the ire of all concerned and keeps us from recognizing the true enemy. What is the RIAA? What does it actually do? The RIAA has no business model, manufactures no product, produces no music, and sells nothing (other than a nice line of baloney.) They used to help define audio standards way back when (anyone remember the RIAA compensation curve?) That was then: today they are merely footsoldiers in the old-line publishers' ongoing battle to maintain the status-quo ante. In other words, it is the organizations for whom they work that need to make some changes: the RIAA can and will keep this up until their corporate masters issue new marching orders.

The RIAA is an ugly entity, to be sure, but like any weapon it can only shoot where it's pointed. The problem is the big content producers and rightsholders, who have proven themselves, time and time again, willing to go to any lengths to preserve their distribution system.

Gowachin Justice (4, Funny)

Chemisor (97276) | more than 6 years ago | (#20883369)

What we really need here is the Gowachin [wikipedia.org] Justice system where the winning lawyer kills the losing lawyer. It would certainly help cut down on stupid lawsuits.

Re:Gowachin Justice (3, Funny)

rajafarian (49150) | more than 6 years ago | (#20883555)

That's funny. What if a case's decision gets reversed? Then we have TWO dead lawyers? Who kills the second lawyer now?

Re: Justice??? (2, Funny)

TaoPhoenix (980487) | more than 6 years ago | (#20884033)

Nope.

NewYorkCountryLawyer is a Minor Deity here at /.

I cannot abide some RIAA sleaze taking him out.

Re:Gowachin Justice (1)

gabebear (251933) | more than 6 years ago | (#20884291)

Weird...

I just finished the 'Whipping Star' and am in the middle of 'The Dosadi Experiment'. It's odd how when you learn of something new, you keep noticing it everywhere.

Re:Gowachin Justice (1)

sparkeyjames (264526) | more than 6 years ago | (#20884701)

Syncronicity in full effect. I just finished reading (well ok rereading) Whipping Star just a day or so ago.

Disclosure laws (1)

nurb432 (527695) | more than 6 years ago | (#20883401)

Arent they *required* to disclose this information? Couldn't the entire case be tossed out and them held in contempt?

This reminds me of tax protesters (-1, Troll)

larry bagina (561269) | more than 6 years ago | (#20883485)

After the MN jury verdict was announced, I realized that the file sharing crowd has a lot in common with the tax protester crowd. For those that aren't aware, tax protesters have a variety of reasons why the US Income tax doesn't need to be paid: the amendment wasn't correctly ratified, wages can't be taxed, the IRS doesn't have authority, etc, etc. And They still cling to these arguments even when no court has ever ruled in their favor (it's a conspiracy, after all).

A friend of mine used to subscribe to a newsletter (bottom line or something like that). Half tha advice was dubious strategies to avoid paying income tax. The other half was advice for what to do when you're audited.

Likewise with the RIAA lawsuits. Slashdot is full of excuses and rationale why it's not a crime, how to avoid getting caught, and defense strategies in case you are hauled into court. There have been positive rulings against the RIAA, but with that $220,000 fine in Minnesota, I wonder if anyone on slashdot will consider maybe the RIAA is right. Nevermind, it's probably just a conspiracy.

Wondering if this is flamebait or troll...

Re:This reminds me of tax protesters (1, Funny)

Anonymous Coward | more than 6 years ago | (#20883601)

Wondering if this is flamebait or troll...

Yes, it is. But the classic /. reverse psychology moderator manipulation (in which one writes a statement indicating one will be modded down, and is modded up instead) is clearly in effect.

Re:This reminds me of tax protesters (0)

Anonymous Coward | more than 6 years ago | (#20883687)

But the classic /. reverse psychology moderator manipulation (in which one writes a statement indicating one will be modded down, and is modded up instead) is clearly in effect.
Sir, your ideas intrigue me. Let's test this hypothesis in reverse though.

The RIAA is so evil, and so frightening in their litigious pursuits, even the devil himself created an account on iTunes.

Wondering if this is insightful or informative...

Re:This reminds me of tax protesters (2, Insightful)

smallfries (601545) | more than 6 years ago | (#20883665)

Given that it might be either how about a reply instead of a mod for a change?

Let's get something straight - sharing copyrighted material is a crime, and if the the RIAA went about prosecuting just for that they wouldn't get half the flack that they do. But so far they have failed spectacularly to do so. Part of this is down to the basic structure of the internet - proving that party A shared a copyrighted file with party B beyond all reasonable doubt is hard. As they are pursuing civil actions they are going for the much easier burden of on the balance of probabilities. Unfortunately they are using the lack of knowledge in juries and judges to do so, rather than evidence of a crime.

If you present a printout of a screenshot of a file sharing client with my ip address and the name of song - that is not evidence.

Before you reach the evidence stage you need to provide:
A log of an ip transaction from a reputable source - ie a router at an ISP.
Proof that the file was not mislabeled - a hash of the transfer that shows the file contained copyrighted material.
Proof that the person being sued is responsible for files offered at that ip address.

Until then the RIAA is just pissing in the wind and winning temporarily until they get struck down on appeal.
Even if you show infringement of copyright, the "exponential" damages being asked for are absurd. Let's see a bandwidth breakdown from the ISP being converted into a "number of cds distributed" and then converted into damages.

Re:This reminds me of tax protesters (1)

alshithead (981606) | more than 6 years ago | (#20883755)

"Let's get something straight - sharing copyrighted material is a crime, and if the the RIAA went about prosecuting just for that they wouldn't get half the flack that they do."

Hmmm...crime? I don't think so. How about a tort? "Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought."

However, I will agree wholeheartedly with you that the burden of evidence needs to be increased. That has been my biggest problem with their cases to this point. Show me the evidence! A smoking gun, in your hand, with no one else holding a gun will be sufficient.

Re:This reminds me of tax protesters (4, Informative)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883809)

I don't know how to break this to you but
-copyright infringement is NOT a crime
-the RIAA, thankfully, doesn't have the power to "prosecute" anyone, and
-if the RIAA had the ability to get the prosecutors interested in prosecuting these ridiculous cases, they would have done so already.

The Department of Justice stated in its brief in Elektra v. Barker [blogspot.com] that it DOES NOT PROSECUTE PEOPLE FOR "MAKING AVAILABLE" and that the only internet copyright prosecutions it has prosecuted were piracy cases.

Re:This reminds me of tax protesters (1)

UnknownSoldier (67820) | more than 6 years ago | (#20884071)

> sharing copyrighted material is a crime,

They why is it legal in Canada?

Maybe because copyright is an ARTIFICIAL law, that only existed since the 16th century. And Americans are waking up that there is no difference if they loan a friend their cd, checkout from the library, or share songs. Either way, someone heard the music, and the artist isn't getting paid.

Re:This reminds me of tax protesters (0)

Anonymous Coward | more than 6 years ago | (#20884689)

>Maybe because copyright is an ARTIFICIAL law

Um, hate to break the news to you, Sport, but all laws are artificial.

Re:This reminds me of tax protesters (1)

evanbd (210358) | more than 6 years ago | (#20883705)

I think that the woman is probably liable (not guilty, it's a civil proceeding not a criminal one), and should be required to pay an appropriate penalty. However, the important thing to me about this case is that $220k is *not* an appropriate penalty. It's too high by an order of magnitude or two. In some of the cases the RIAA pursues, they clearly pursue the wrong defendant well past the point where it is clear that the defendant is not liable.

My objections to the RIAA are to their tactics, which are clearly intended to intimidate and extort, and are in many cases outright illegal. I also think that the punishment should fit the crime -- thousands per shared song does not seem to be connected to any real world concept of how much she's hurt anyone. A few tens of dollars in lost sales per song, perhaps multiplied by some amount as penalty (the penalty for getting caught doing the wrong thing should be more than it would have taken to do the right thing in the first place) would be reasonable -- and wind up at perhaps $100 per song, not $9000.

Of course, I also object for a variety of reasons to the DRM and other anti-customer tactics taken by these groups, but that's a different discussion.

Re:This reminds me of tax protesters (2, Informative)

drmerope (771119) | more than 6 years ago | (#20883805)

After the MN jury verdict was announced, I realized that the file sharing crowd has a lot in common with the tax protester crowd. For those that aren't aware, tax protesters have a variety of reasons why the US Income tax doesn't need to be paid: the amendment wasn't correctly ratified, wages can't be taxed, the IRS doesn't have authority, etc, etc. And They still cling to these arguments even when no court has ever ruled in their favor (it's a conspiracy, after all).

I don't know much about the tax protesters, so I'm going to decline to engage your specific example and challenge the logic of your argument. The critical remark you make is "They still cling to these arguments even when no court has ever ruled in their favor". Because of Stare Decisis [wikipedia.org] it is possible for the court system to repeatedly act contrary to fact and logic. And here lies an important point, there is a distinct difference between what courts do and what the law is. Those two things are not the same, but a trial judge is not (usually) receptive to interpretations of the law at variance with precedent. This is why we have appellate courts and the supreme court; those judges and justices have a bit of discretion to reconsider whether the precedent and the actual law agree.

But here again is an important point: neither the appellate courts nor the supreme court act of their own volition. They require first that a party challenge the interpretation. Consequently, I find your attitude of "give up, you lost already" rather out-of-touch with how the court system functions and the meaning of truth.

Re:This reminds me of tax protesters (1)

mosch (204) | more than 6 years ago | (#20884417)

Your post reminds me of idiots.

Income tax makes sense. It's common, and as you note, it's well established that it must be paid. The relationship between income and tax due is well known and accepted. Those who cheat do not owe orders of magnitude more than those who don't, when caught.

This copyright shit is not well-established. There is no clear relationship between the severity of the crime and the severity of the punishment. We have the RIAA claiming that ripping a CD that you own is stealing, and that it should be punishable with hundreds of thousands of dollars in fines. But nobody agrees with that. Flat nobody.

Your comparison isn't just a little flawed, its completely broken.

Ethical violation (5, Informative)

monstermagnet (101235) | more than 6 years ago | (#20883571)

IAAL, and I've worked directly for judges. This won't win the RIAA lawyers any friends on the bench.

There is an ethical obligation to inform the court of legal authority (cases) in the controlling jurisdiction (same state, or federal circuit, for example) known to the lawyer to be directly adverse to the position of the client. See ABA Model Rules of Professional Conduct, Rule 3.3(a)(2).

Rule 3.3(a)(3) prohibits offering "false evidence." Not quite on point, because legal authority is not "evidence".

The commentary suggests that a "lawyer must not allow the tribunal to be misled by false statement of law or fact or evidence that the lawyer knows to be false." Rule 3.3, cmt. 2. That's pretty inclusive, and I'd feel comfortable arguing that failing to disclose the reversal of authority you've previous cited is an ethical violation. A referal to the state bar commission could be in order here, and let them sort it out.

Re:Ethical violation (5, Funny)

NewYorkCountryLawyer (912032) | more than 6 years ago | (#20883781)

IAAL, and I've worked directly for judges. This won't win the RIAA lawyers any friends on the bench. There is an ethical obligation to inform the court of legal authority (cases) in the controlling jurisdiction (same state, or federal circuit, for example) known to the lawyer to be directly adverse to the position of the client. See ABA Model Rules of Professional Conduct, Rule 3.3(a)(2). Rule 3.3(a)(3) prohibits offering "false evidence." Not quite on point, because legal authority is not "evidence". The commentary suggests that a "lawyer must not allow the tribunal to be misled by false statement of law or fact or evidence that the lawyer knows to be false." Rule 3.3, cmt. 2. That's pretty inclusive, and I'd feel comfortable arguing that failing to disclose the reversal of authority you've previous cited is an ethical violation. A referal to the state bar commission could be in order here, and let them sort it out.
Thank you, monstermagnet. I was waiting for the cavalry to arrive.

its a mess (2, Insightful)

FudRucker (866063) | more than 6 years ago | (#20883819)

"The United States is a nation of laws - poorly written and randomly enforced." - Frank Zappa

have things really gotten this out of hand? (-1, Troll)

Anonymous Coward | more than 6 years ago | (#20883825)

hey slashdotters. if you're going to question the integrity of the riaa not bringing this case to light why don't you turn yourselves in for being theives and try pulling some of the its-not-theft bullshit on the courts?
 
it's great to see some of the common theives on here acting like they're somehow better compared to the riaa.

when is a judge in MN bound by a decision in NY? (3, Informative)

westlake (615356) | more than 6 years ago | (#20883913)

moment we can only speculate as to what legal authorities they cited to the judge in Duluth, Minnesota, to get him to instruct the jurors that just 'making available' was good enough.

In our federal system, when is a trial judge in Minnesota bound by an decision in New York?

If he is a federal judge, he looks first to appellate decisions within his own Circuit - the Eighth. U.S. Courts [uscourts.gov] If he is a state judge, he looks first to appellate decisions within his own state.

But he is free to roll his own, subject only to the risk of reversal on appeal.

It is within bounds for a trial judge in Duluth to decide that the opinion of a trial judge in New York was correctly reasoned and that the opinion of the appellate court in New York was not.

The sate appellate courts of Minnesota can disagree with the state appellate courts of New York.

The Eighth Circuit Court of Appeals in St. Louis can - respectfully - disagree with the Second Circuit Court of Appeals in New York.

It is the responsibility of the U.S. Supreme Court to resolve such conflicts - if it believes that they are needlessly disruptive and of Constitutional significance.

But the Supremes take on only 100-200 cases a year.

Officers of the Court? (1)

kwandar (733439) | more than 6 years ago | (#20884049)

Doesn't an officer of the court have an obligation to provide all relevant material? If so, does this mean Thomas is likely to be overturned by the judge? Puts the judge in a rather awkward position, having to reverse himself, but if I were him I'd shoot the RIAA's lawyers out of a cannon if they truly did know, and didn't disclose.

Is there a transcript of Capitol v. Thomas online? (1, Interesting)

Anonymous Coward | more than 6 years ago | (#20884127)

I followed the case through the press (and your blog [blogspot.com]) and was curious whether the actual trial was available somewhere, for pay or for free. I'd like to get an idea of what the jury saw -- I guess while I thought it was a bit of a crap shoot whether they'd find her liable or not from the coverage in the press, I'm astonished at the size of the award and wonder just what happened in there.

I wish you better luck with your case, and thank you for keeping an online library on the matter. At some point it'd be nice to see more people aware of the fact that this is not simply about piracy but also about setting a reasonable standard of proof for any activity one might be (possibly wrongly) accused of on the Internet. Or concerned about the idea that maybe a law that can financially ruin a family over a handful (or a couple thousand, or even two) songs is ethically wrong. I know I'd be less frustrated if a particular jury happened to think along these lines, or put themselves in the position mentally of having one of their kids download enough to bankrupt the family without their knowledge, but I suppose they might have been overloaded by the technical nature of the subject and claims of billions of dollars of losses due to piracy, etc.

Poorly written headline (0)

Anonymous Coward | more than 6 years ago | (#20884387)

It was difficult to read and didn't flow.

Where Is The Punishment (1)

Nom du Keyboard (633989) | more than 6 years ago | (#20884549)

The RIAA lawyers have made astonishing and unsupported claims (infringement is ongoing and continuous), outright lies (identified an individual), technical lies, violation after violation of court rules and rulings, and concealment of their reversals, which I'd call baldfaced lying to judges.

WHERE IS THE PUNISHMENT TO THEM FOR THESE ACTIONS? Punishment sufficient to fully deter them from ever trying this again? In the Duke Rape case, the public prosecutor was disbarred - and he only ruined 3 lives along the way (a few more than 3 if you count his own, and that of his family).

Malpractice (1)

EVil Lawyer (947367) | more than 6 years ago | (#20884591)

The RIAA lawyers had an obligation to inform the judge and the other party as soon as they learn about that case being overturned. This is a clear cut case of malpractice, if the facts are as stated in the article.
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