Judge Says No to RIAA Subpoena Request 154
NewYorkCountryLawyer writes "For at least the second time, a federal judge has dealt the RIAA's campaign against college students a blow by refusing an ex parte motion by the RIAA for a subpoena against college students. In Newport News, Virginia, Judge Walter D. Kelley, Jr., denied the RIAA's motion for information about students at the College of William and Mary. The Court denied the motion outright, saying it was unauthorized by law. (pdf) Last month it was reported that a New Mexico judge had denied a similar motion directed against University of New Mexico students on the ground that it should not have been made ex parte."
Good to see critical thinking (Score:5, Insightful)
This is an example of a good judge doing his homework and actually reading the statutes, and not being impressed by pounds of paper and doubletalk.
I am very happy to see judges like Judge Kelley and Judge Garcia taking a close look, and saying to the RIAA thugs : "Wait a minute, this is still a court of law, not a schoolyard where bullies can just do whatever they want to defenseless people. We have a rule of law, here, buddy."
Re:Good to see critical thinking (Score:5, Interesting)
Re:Good to see critical thinking (Score:5, Interesting)
He's saying, in so many words, "the whole statutory basis for your motion is nonexistent.... why didn't you read the statute before citing it?" and "why didn't you mention the real statute for this kind of thing, which DOESN'T allow this kind of motion against a COLLEGE?"
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Well, you're either a moron or a person with reading comprehension problems.
Actually, if you read the judgement, they weren't treating them like an ISP. The statute they were attempting to claim authorized their motion was a statute authorizing said motions by the government against a cable company.
The judge basically tells them "There's a DMCA for this sort of thing, and it doesn't authorize this behavior ei
Sounds like they got off easy... (Score:4, Insightful)
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The problem is that if the material is on a customer's own computer, the ISP has no authority to remove the content. The ISP has no control over the situation at all.
So for a college, even if it can be treated as an
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Cable Communications Policy Act of 1984 ("CCPA"), 47 U.S.C. 551(c)(2)(B),
In re: Charter Commc'ns, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 777 (8th Cir. 2005).
Recording Indus. Ass'n of Am. v. Univ. of N. C. at Chapel Hill, 367 F. Supp. 2d 945, 948-49 (M.D. N.C. 2005).
You have to admit that, while possibly informative to an almost painful degree, they are exceedingly ugly and quite distracting/confusing if you don't know all the specific rules fo
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Well, since you asked... references like so: Cable Communications Policy Act of 1984 ("CCPA"), 47 U.S.C. 551(c)(2)(B), In re: Charter Commc'ns, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 777 (8th Cir. 2005). Recording Indus. Ass'n of Am. v. Univ. of N. C. at Chapel Hill, 367 F. Supp. 2d 945, 948-49 (M.D. N.C. 2005). You have to admit that, while possibly informative to an almost painful degree, they are exceedingly ugly and quite distracting/confusing if you don't know all the specific rules for referencing legal documents. Which I don't.
I understand. Thanks for explaining what you meant.
That's the judge referencing legal precedents. It's at the core of what lawyers and judges do, so it's unavoidable.
Sorry it's distracting and confusing. All I can suggest is to skip over them.
Thanks again for explaining.
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If the ISP is just a conduit and has no control over the server, the the ISP is not liable anyway. In that case, since the ISP cannot remove the material, takedown notices aren't even an option.
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My impression (Score:2)
From following Groklaw, it seems that judges & lawyers like to layer their coverage. In this case the judge seems to be saying "This is dead. The statute you used to try to pull it doesn't allow it. Furthermore, the only statute I can find where you could do this, doesn't allow you to in this situation." If the RIAA wants to challenge this in the appeals court, they now not only have to show why this judge made a 'gross error o
Re:Good to see critical thinking (Score:4, Informative)
My favourite bit was the following from the last link:
For anyone unfamiliar with Coleridge [wikipedia.org], reading something on the origin of the phrase suspension of disbelief [texaschapbookpress.com] might be informative. At least easier than reading Coleridge's own works.
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No one can stops the RIAA to overtake the world. Not this judge, not the law, not the people. You just borrowed your freedom. Is is jus a matter of time and money!
Buahh! ha! ha!
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Am sure not only executive privilege be invoked by Bush, but also the fact that "suddenly" RIAA may find itself under intense scrutiny by IRS and by FTC and being declared "person of interest".
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W&M is my alma mater and it kind of gave me a nice fuzzy feeling to see it metioned on Slashdot in an article. Not that the College did a whole lot except get named in a rejected ex parte motion...at least it's better press than it's getting with the whole cross in the chapel debacle.
(http://www.savethewrencross.org/blog/index.php?c
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Nice post! It's refreshing to see people on /. actually post an intelligent summary of an interesting article. Please keep contributing. Cheers!
-sd
I'd say "thank you", shdragon, but if I leave it at that, someone will mod me down as "overrated". Can I interest you in a link to something about some other galaxies [slashdot.org], just to keep myself at +1?
PS. Are you really Slashdot member #1797? Wow.
I wouldn't worry too much (Score:2)
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These days overrated seems to be used more for "I disagree with what you are saying but don't want to get metamoderated". Also you've become something of a celebrity on Slashdot, you don't have a whole lot to worry about getting modded down unless you go and flame someone out right or something like that.
I was just kidding, I'm not really afraid of being attacked. If I were, I'd be in the wrong line of work.
Did you see my Slashdot interview [slashdot.org], where I was mercilessly hacked apart by people complaining that I hadn't answered the questions, or that I had answered them curtly. I thoroughly enjoyed it.
But I will tell you, I've noticed my story submissions getting voted down very quickly in Firehose lately. Can't help but wonder if the RIAA troll(s) are at it again.
Selective RIAA enfarcement (Score:2)
The thought just occurred to me the RIAA would like the IP address and every school attendee simply to selectively enforce it. The last thing the RIAA wants to do is go after someone from a family of rich lawyers.... they want the ones that can't afford to fight. Or perhaps daddy might pass a law...
RIAA paracites.
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Re:Selective RIAA enfarcement (Score:4, Interesting)
Unlike U WA (Score:2, Interesting)
Re:Unlike U WA (Score:5, Insightful)
If I was a parent of a UW student I'd be mad.
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I think UW made the wrong decision, but in their defense they're not releasing any student information, just forwarding the settlement letters. If the RIAA did sue and ask for the info, they very well might fight it.
The RIAA undoubtedly has sued, and has asked the judge for an ex parte order, and UW has probably done absolutely nothing to make sure the students had notice and an opportunity to oppose the motion, and UW has probably done absolutely nothing to bring to the judge's attention the legal impropriety of the RIAA's actions. And probably the judge won't be as alert as Judges Garcia and Kelley.
I hope I'm wrong.
Re:Unlike U WA (Score:5, Insightful)
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But thank goodness for an alert judge, who actually read the law.
Re:Unlike U WA (Score:4, Interesting)
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There was indeed a cross in the wren building that got removed this past year, as it was a state-owned building that wasn't explicitly used for religious purposes. The cross was NOT historically significant, and there were no records showing that there even
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I believe they've also contacted students who frequently come up in the lists of IP addresses that are requested by the RIAA, asking them to lay off the filesharing, although I've never heard this from any sort of official source...
WM has, however, honored non-subpoena requests from NBC, which
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Actually, I've talked with the head of IT, and was told that the (un)official policy is to ignore any requests from the RIAA that could potentially incriminate students, unless they're in the form of a legal subpoena.
It will always be "in the form of a legal subpoena" unless either (a) the universities oppose the RIAA's ex parte motion for permission to issue a subupoena or (b) an astute and hardworking judge like Judge Kelley or Judge Garcia happens to be the judge across whose desk the application comes.
So their statement that they would not turn over the information without a subpoena is a non sequitur.
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Correct me if I'm wrong, of course...
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Or not heard, as seems their wont based on their recent history.
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Lawsuits about removal of crosses: news for nobody, stuff that doesn't matter.
Clear enough now on why Slashdot readers care about the one and not the other?
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Have some judges been incorrectly approving these ex parte subpoenas for the RIAA?
Probably most have.
If such subpoenas are presented to colleges and ISPs they should be able to get them vacated on those grounds?
The subpoena comes after the order. It's important for the colleges, ISP's, and John Does to fight it before the order is granted. The universities are in a position to force the RIAA's hand on the ex parte nature of the proceedings. See my Open Letter to Colleges and Universities [blogspot.com].
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UW didn't "cave," at least not yet. They forwarded RIAA settlement letters to students, but specifically said that they were not forwarding the students' information on to the RIAA.
Sure they're not going to turn over the information to the RIAA without a court order. But if they do nothing, and the judge in Washington isn't as alert as Judges Kelley and Garcia have been, the order will be granted ex parte. That's why I'm asking university administrators and legal counsel to please wake up and protect their students' due process rights [blogspot.com].
Other RIAA shenanigans (Score:4, Funny)
On the same day, the RIAA also announced new software it would make available as a free download called riaaBuddy.
riaaBuddy is an on-screen "intelligent software agent" created by the RIAA, and based upon Microsoft Agent [wikipedia.org] technology. The goal of the program is to help users enrich their online musical experience as they discover digital music together with the included "riaaBuddy," which is an animated, purple Sheryl Crow. Users can interact with Sheryl by asking her questions, get recommendations on new music released by RIAA artist, as well as be politely informed when unapproved websites are loaded.
Other features include, an integrated download tracker, music-related themes, desktops, screen savers, and cute, animated emoticons, bearing a resemblance to top-selling RIAA artists. Also included is a desktop search utility that indexes a hard drive's contents in order to allow the user to easily perform searches.
While initial response to the program has been positive, a few early users complain that the program is buggy. The purple Sheryl Crow is said to only be able to sing the song Daisy Bell. "The program keeps changing my home page to a crappy RIAA home page," said one teenager who wished to remain anonymous out of fear of a RIAA-sponsored lawsuit. There have also been complaints of an increase in pop-up advertising.
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Having an anthropomorphic miniature Japanese tree on his screen would have been at least bizarre, if not funny.
Re:Other RIAA shenanigans-Yeah, Right! (Score:2)
Yeah, that loads right next to the RIAA Genuine Advantage program in my memory map.
Faster Than a Speeding Rumor (Score:2)
Re:Jargon Jingle. (Score:5, Informative)
Re:Jargon Jingle. (Score:5, Informative)
They find it inconvenient if someone else shows up to tell the judges the truth.
Of course, as Judge Garcia was kind enough to point out, their "ex parte" tactics are illegal. Just a minor detail.
Since when does that matter to thugs? (Score:2)
Re:Since when does that matter to thugs? (Score:4, Insightful)
So... (Score:2)
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The last guy to try that [nytimes.com] is serving a 40 year sentence at ADX Florence. [wikipedia.org]
Re:Jargon Jingle. (Score:4, Informative)
Re:Jargon Jingle.-MORE THAN JUST A LITTLE ILLEGAL (Score:2)
The subpoena is illegal for more than just its ex parte and citing the wrong law aspects. It's also an illegal joinder of otherwise unrelated Doe defendants that a Texas judge ruled against and told them not to do any longer. The RIAA has blithely ignored that ruling since, and because it has all been ex parte, no one else has been able to point this out to future judges at this point in the proceedings.
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Re:Jargon Jingle. (Score:4, Informative)
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They're asking the judge to compel the university to do something, without having the university present to present objections. They know who the university is.
Correct.
Plus, it would be an easy matter for the RIAA to furnish the university, and for the university to send to the John Does, copies of (a) the summons and complaint, (b) the motion papers, and (c) the judge's rules -- i.e. all the things the rules say one is supposed to get when one is sued, and motion is made against one's interests.
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I did like this judge effectively saying, "Read the law, dumbasses"
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I am surprised that a New Mexico judge figured it out. I spent 35 of my first 40 years there and the honesty and common sense level of judges and politicians is much lower than normal. The population is so low for that land area I knew half of them in the 80's and 90's and close to 3/4s in the 70's.
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Since the RIAA wants to do everything out of sight of the public we just need to keep exposing them to the light of day. Like vampires they can't function in the open, slimy creatures prefer the dark. I am surprised that a New Mexico judge figured it out. I spent 35 of my first 40 years there and the honesty and common sense level of judges and politicians is much lower than normal. The population is so low for that land area I knew half of them in the 80's and 90's and close to 3/4s in the 70's.
I've heard from other sources that Judge Garcia is well known to be a great judge, and his decision proves it, in my book. His action speaks well for the federal court in New Mexico, so let's keep an open mind. As far as I'm concerned the whole country owes that court a debt of gratitude.
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No question he did a good thing for all of us. There are some good judges there but the norm is as bad or worse than the rest of the country. Most of the things that happen in court or Congress on this subject is in the hands of staff because the Lawyers, Judges, and Congresscritters will not try to learn what any of it really means. That makes me cynical and a skeptic.
I don't know what the "norm" is. I don't even know what the "norm" is in New York, where I practice, because there are so many judges and I get to appear before only some of the many.
All I know is....
-when something bad happens let's holler about it
-when something good happens let's appreciate it and honor the judge for doing his homework, for being fair, for carrying out his or her sacred trust, and for standing up for the dignity of our judicial system.
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I think any judge should look at this stuff extremely carefully due to the ex parte nature of the proceedings; in fact, the more I think about it the more I'm convinced that there might be a legitimate bar grievance agai
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I think any judge should look at this stuff extremely carefully due to the ex parte nature of the proceedings; in fact, the more I think about it the more I'm convinced that there might be a legitimate bar grievance against the attorney who filed the motion, because of their failure to fully explain the pertinent statute and their omission of key elements. I don't know about the bars in Texas, but around here in a non-adversarial proceeding it is the attorney's ethical obligation to inform the tribunal of every aspect of law that will impact their decision, even those aspects that will hurt their argument.
I agree with you, nomadic. If I were a judge I would be pounding the RIAA's lawyers for their unethical tactics.
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Or more likely, it was given up *while* he was asking the question. This isn't IRC, there's a bit of a delay between looking for other comments and posting your own.
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Re:Courts should apply the law (Score:5, Insightful)
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Law isn't math or physics. There very frequently is no "right" or "wrong", jus
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As someone once put it, "A jury consists of 12 people who are too stupid to get out of jury duty".
Re:Courts should apply the law (Score:5, Insightful)
Second time, I got put on a case. To say I 'quickly became dis-enamored with the legal system' would be like saying 'upon exposure to heat, the gasoline rapidly oxidized'. True, but a major understatement.
It was a civil case, 6 jurors. A woman driving a mini-van backed into a pedestrian, knocking him down, breaking his collarbone. I could go on for hours describing the details, but the relevant facts are:
1) the man admited to leaving the crosswalk and walking diagonally down the road
2) the man's statements contradicted themselves, to the point he comitted perjury
3) In my opinion, the woman acted reasonably. She checked her side mirror, rear miror, and them turned her upper body and head so she could look out the rear window of the mini-van as she reversed. The fact that the man was in the middle of the block, in the middle of the street, in her blind spot, was not her fault.
4) the man was asking for over a half-million dollars, just for 'pain and suffering'.
Long story short, it was my opinion that, since the woman acted reasonably, and the man was the one who left the crosswalk (and later lied under oath), she owed him nothing. Unfortunately, the other 5 jurors did not see it that way. This was New York, a city where there are more pedestrians than drivers. I could practically see the $-signs in people eyes. I actually had one juror say 'If you got hit by a car, wouldn't you want to get compensated?' I replied 'I wouldn't expect money if I was the one at fault."
Since a civil case does not need a unanimous verdict, in the end we found for the plaintiff. Now the matter of how much came into play. The "ammount to adaquately compensate him for his losses" was determined (by the other 5) to be around $130,000. They knocked off 35% because they magnanamously agreed it was 'partly his fault' that he jay-walked behind a moving vehicle. That brought the award to abotu $100,000. Then one particularly bright juror piped up with thas shocked: "...but his lawyer will take 1/3, wo we have to give him more", like it's our job to pay the mans lawyer!! We didn't know the man's legal fees. Heck, the laywer could have been a friend doing it for free, for all we knew.
And then something happened that... put it all in perspective. Soemthing that made me realize why the jury system in this country, while it was no doubt a good idea when it was created, is no longer wise.
They decided to give him $133,000.
Now, dear reader, please take a moment to do the math. The jurors wanted to award the men 'X', such that when 1/3X was removed, the man ended up with $100,000.
100,000 = X - 1/3X
100,000 = 2/3X
3/2 * 100,000 = X
150,000 = x
I was doing this in 5th grade, but these MORONS couldn't even get this SIMPLE math right. I tried to correct tham. Twice. Then I shut up, since their error lowered the award I thought should be $0 anyway.
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Don't even get me started on my 3rd jury duty. Undercover Cop had audio and video of the defendant selling him drugs on 6 out of 7 occasions (the first time they weren't recording as the UC was just supposed to meet the guy, but the guy was so eager to sell, he sold to the UC that time too.) They have video of him walking away counting the money, smiling. The defense ADMITTED the defendant handed over drugs for money on each occasion. Their only defense? 'AGENCY'- the man wasn't 'selling' drugs to the UC, he was 'purchasing drugs FOR the UC', as his 'agent'. Of course, the defendant seem to already have the drugs the UC wanted on hand, and the video of him counting the money, smiling, implies he was making a profit (making a profit from either side means he no longer met the legal definition of an 'agent'). Oh- and he'd been to jail 2 time before for... you guessed it, dealing drugs.
There was one minor marijuana charge w
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Funny. That wasn't a reason the two hold-outs gave. If they DID give that reason, I could understand it, and make a counter-argument.
Actually, the whole reason the UnderCover cop ('UC') was sent to that neighborhood to find and bust drug dealers was CITIZEN COMPLAINTS. You see, drug dealers (and drug users) tend to break other laws as well. They hang out on the street corn
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No- the 'goddamn point' is that it NOT "your book" that determines what is illegal. It is Society's 'book'. And Society has determined that the manufacture and sale of certain substances is illegal. Why? Because it causes other problems, attracts the criminal element who end up committing other crimes. This is NOT a Human Rights issue like Slavery. It is a safety issue. A Quality of Life issue.
If they behave ille
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ANd most people (everyone but you, as far as I can tell) don't want to 'use' (read: 'live in') neighborhoods that allow drug dealers.
If you could get legal heroin for a few dollars a pop you wouldn't need to boost cars.
1) If I could get heroin legally, it would be from a drug store. A retail establishment. NOT a street corner dealer. (Do you get asprin, cigarettes, or booze from a guy hanging out on the corner??) Therefore, the 'corner dealer' would be
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Yes, because as we all know, the primary effect of any illegal drug is to cause an uncontrollable desire to commit a felony.
Oh wait, no it isn't. Care to explain?
Also, your assertion that use would go up if drugs were decriminalized/legalized is specious at best, and real-world examples (Spain, the Netherlands) have indicated that usage does not rise long-term as a res
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Oh wait, no it isn't. Care to explain?
Are you arguing that people who are under the influence of drugs are _more_ law-abiding than those who are not under the influence?
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Could have been a case of nullification. I will do the same thing in drug and adult prostitution cases, and over copyright violations. I will never send somebody to jail over what I consider bad and unjust law. Never.
Nullification -- good point (Score:2, Insightful)
That's a good point and I hope you get modded up. There's more than one way to read GP's experience: racism is one explanation, but subverting the ``war on drugs'' and ``three-strikes-you're-out'' rule is another. Lots of people think those two policies are unjust, perhaps unconstitutional. Why should a juror refrain from deconstructing the system a bit if the system is broken? This is one way that the judiciary gets to check-and-balance the other branches of gov
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Sorry. You weren't there. I was. These people wouldn't have known 'jury nullification' from 'habeus corpus'. And I don't just mean the technical legal definition. Neither of them so much as mentioned 'I don't like the law' or anything similar.
Again, I was there. There was plenty that happened that I am not telling you. What they said, how they said it. A
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No.
Like I said, when questioned on WHY they were saying 'not guilty', they did not answer, but became very defensive. "I can say Not Guilty, it's my right, and you can't make me change". Once that was said, we went back to the judge with a notification of a hung jury. He refused to accept that and sent us back for several more days of deliberation. During those days, as we discussed and re-discussed, and re-re-discussed the evidence, the other statements I mention
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Be sure to tell your neighbors who object to your little crack house that it's 'free market at its best'. That'll make them feel better about the lower property values, increased crime, and finding drugged out hos passed out on their front lawns.
The law made them into criminals, not their business.
Perhaps. I prefer to look at what makes them... unacc
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I wish somebody had told me this before I paid my real estate agent 6%.
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That the truth is not perceptible or discernible does not by itself imply that the truth does not exist. I think it a large leap from 'laws require interpretations because there are apparent ambiguities in how to apply them' to 'there is no one correct way to interpret a law'. That the calculus of competing interests, rights, and persons is too subtle for human beings to divine a definitive understanding of how it ought to be applied is simply a measure of human limitations, and not necessarily evidence of
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What the jury does is determine if the law, as it is defined for them by the judge, is applicable. The judge interprets the law for them, through instructions. and directs them to determine if it applies. The jury determines if the evidence presented supports applying the law.
Neither the judge nor jury applies the law, the executive branch does through its enforcement agents (police and corrections).
IANAL, I
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For once an honest judge applied a good law properly - so today we're for the law, that's the righteous way.
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Will never happen but I would love to see it.
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HOWEVER
You do not fight crime by committing a crime yourself. You do not shoot a jaywalker that walked in front of your car forcing you to slow down (hell, you should not even run them over). However, the RIAA feels that since the defendants in their opinion were committing a crime, they do not have to follow the process designed to make sure that the defendant is truly guilty.
The
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It's also wrong for the RIAA to ... "prosecute" is the wrong word, here ... sue people who actually do have the means to commit copyright infringement but choose not to do so ... when the RIAA has no evidence to suggest that they have done so. And it's wrong for the RIAA to do some of the other shenanigans they've been doing. I'm glad to see at least some judges understand the importance of their role.
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He keeps repeating the same off-topic comment, word for word, on every RIAA article that gets posted.
at least you would think he could come up with something new.
I would wager that he works for the record industry.