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RIAA Lawyer Jumps Ship
Posted by
ScuttleMonkey
on Fri May 09, 2008 06:22 PM
from the bigger-better-deal dept.
from the bigger-better-deal dept.
NewYorkCountryLawyer writes "The RIAA's top litigation lawyer, who has been personally leading the RIAA's litigation campaign for the past several years, Richard Gabriel, will be leaving his law practice after getting a job as a state court judge for a 2-year term in Colorado. What this will mean to the RIAA's litigation machine is anyone's guess. Mr. Gabriel has personally argued all of the RIAA's main cases, including Elektra v. Barker, Atlantic v. Howell, Atlantic v. Brennan, Capitol v. Foster, Atlantic v. Andersen, UMG v. Lindor, and London-Sire v. Doe 1, and personally tried the Capitol v. Thomas case, the only RIAA case that has ever gone to trial. He was working directly under the supervision of the RIAA's mysterious 'representative' Matthew Oppenheim."
Related Stories
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Technology: RIAA's 'Expert' Witness Testimony Now Online 512 comments
NewYorkCountryLawyer writes "The online community now has an opportunity to see the fruits of its labor. Back in December, the Slashdot ('What Questions Would You Ask an RIAA Expert?') and Groklaw ('Another Lawyer Would Like to Pick Your Brain, Please') communities were asked for their input on possible questions to pose to the RIAA's 'expert'. Dr. Doug Jacobson of Iowa State University, was scheduled to be deposed in February in UMG v. Lindor, for the first time in any RIAA case. Ms. Lindor's lawyers were flooded with about 1400 responses. The deposition of Dr. Jacobson went forward on February 23, 2007, and the transcript is now available online (pdf) (ascii). Ray Beckerman, one of Ms. Lindor's attorneys, had this comment: 'We are deeply grateful to the community for reviewing our request, for giving us thoughts and ideas, and for reviewing other readers' responses. Now I ask the tech community to review this all-important transcript, and bear witness to the shoddy investigation and junk science upon which the RIAA has based its litigation war against the people. The computer scientists among you will be astounded that the RIAA has been permitted to burden our court system with cases based upon such arrant and careless nonsense.'"
[+]
News: RIAA Directed To Pay $68K In Attorneys Fees 192 comments
NewYorkCountryLawyer writes "In Capitol v. Foster, in Oklahoma, the RIAA has been directed to pay the defendant $68,685.23 in attorneys fees. This is the first instance of which I am aware of the RIAA being ordered to pay the defendant attorneys fees. The judge in this case has criticized the RIAA's lawyers' motives as 'questionable,' and their legal theories as 'marginal' (PDF). Although the judge had previously ordered the RIAA to turn over its own attorneys billing records, today's decision (PDF) made no mention of the amount that the RIAA had spent on its own lawyers."
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News: New Attorneys Fee Decision Against RIAA 144 comments
NewYorkCountryLawyer writes "The RIAA has gotten slammed again, this time in Oregon, as the Magistrate Judge in Atlantic v. Andersen has ruled that Tanya Andersen's motion for attorneys fees should be granted. The Magistrate, in his 15-page decision, noted that, despite extensive pretrial discovery proceedings, 'when plaintiffs dismissed their claims in June 2007, they apparently had no more material evidence to support their claims than they did when they first contacted defendant in February 2005.....' and concluded that 'Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case.' This is the same case in which (a) the RIAA insisted on interrogating Ms. Andersen's 10-year-old girl at a face-to-face deposition, (b) the defendant filed RICO counterclaims against the record companies, and (c) the defendant recently converted her RICO case into a class action"
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Judge Rejects RIAA 'Making Available' Theory 353 comments
NewYorkCountryLawyer writes "A federal judge in Connecticut has rejected the RIAA's 'making available' theory, which is the basis of all of the RIAA's peer to peer file sharing cases. In Atlantic v. Brennan, in a 9-page opinion [PDF], Judge Janet Bond Arterton held that the RIAA needs to prove 'actual distribution of copies', and cannot rely — as it was permitted to do in Capitol v. Thomas — upon the mere fact that there are song files on the defendant's computer and that they were 'available'. This is the same issue that has been the subject of extensive briefing in two contested cases in New York, Elektra v. Barker and Warner v. Cassin. Judge Arterton also held that the defendant had other possible defenses, such as the unconstitutionality of the RIAA's damages theory and possible copyright misuse flowing from the record companies' anticompetitive behavior."
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News: RIAA "Making Available" Theory Rejected 168 comments
NewYorkCountryLawyer writes "In a 25-page decision (PDF) which has been awaited for two years in Elektra v. Barker, Judge Kenneth M. Karas has rejected the RIAA's 'making available' theory and its 'authorization' theory, but sustained the sufficiency of the complaint's allegations of 'distribution' and 'downloading,' and also gave the RIAA 30 days to cure the defects in its complaint by filing a new complaint. The judge left it open for the RIAA to allege that defendant made an 'offer to distribute,' and that the offer was for "'the purpose of further distribution,' which, the judge held, would be actionable."
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News: RIAA's Boston University Subpoena Quashed 39 comments
NewYorkCountryLawyer writes "As first reported by p2pnet, the motion to quash the RIAA's subpoena seeking identities of Boston University students has been granted, at least for the moment. In a 52-page opinion (pdf) the Judge concluded that she could not decide whether or not to quash until she had seen the college's 'Terms of Service Agreement' for internet service. It was only then she could decide what 'expectation of privacy' the students had. She quashed the subpoena calling for the student identities, and told them they could go ahead with a subpoena just for the terms of service agreement. Interestingly the decision was issued on the very same day as the judge in Elektra v. Barker came to some of the same conclusions."
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News: Arizona Judge Shoots Down RIAA Theories 204 comments
NewYorkCountryLawyer writes "In Atlantic v. Howell, the judge has totally eviscerated the RIAA's theories of 'making available' and 'offering to distribute.' In a 17-page opinion (PDF), District Judge Neil V. Wake carefully analyzed the statute and case law, and based on a 'plain reading of the statute' concluded that 'Unless a copy of the work changes hands in one of the designated ways, a "distribution" under [sec.] 106(3) has not taken place.' The judge also questioned the sufficiency of the RIAA's evidence pointing towards defendant, as opposed to other members of his household. This is the Phoenix, Arizona, case in which the defendant is representing himself, but received some timely help from his friends. And it's the same case in which the RIAA suggested that Mr. Howell's MP3s, copied from his CDs, were unlawful. One commentator calls today's decision 'Another bad day for the RIAA.'"
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What do you call 1 lawyer at the ocean's bottom? (Score:4, Funny)
Re: (Score:2)
Re:What do you call 1 lawyer at the ocean's bottom (Score:4, Funny)
Parent
Re: (Score:2, Insightful)
Re:What do you call 1 lawyer at the ocean's bottom (Score:5, Insightful)
Parent
Re:What do you call 1 lawyer at the ocean's bottom (Score:5, Funny)
Sharks never attack lawyers - professional courtesy.
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Re:What do you call 1 lawyer at the ocean's bottom (Score:5, Funny)
Parent
Re:What do you call 1 lawyer at the ocean's bottom (Score:2, Interesting)
"The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There's also a negative side."
Re: (Score:3, Informative)
"Let them listen to CAKE! [cakemusic.com]"
Re:What do you call 1 lawyer at the ocean's bottom (Score:5, Funny)
What do you call all of the world's lawyers chained to the bottom of the sea? Solution!
Thank you, Thank you! Try the steak!
Parent
can't stop myself... must type lawyer joke (Score:3, Funny)
A: Shoot the lawyer twice.
Re:What do you call 1 lawyer at the ocean's bottom (Score:5, Funny)
Parent
New sympathetic venue for RIAA cases (Score:5, Interesting)
Re:New sympathetic venue for RIAA cases (Score:5, Insightful)
So that every defendant moves to have him recuse himself from the proceeding.
Parent
Re:New sympathetic venue for RIAA cases (Score:5, Interesting)
Also, he may have left after sniffing the wind and seeing that other judges are starting to find the RIAA's tactics to be questionable at best... and likely wants to be well clear of the RIAA if/when it finally (okay, hopefully) implodes.
Finally, even if he did hear any of these cases, he's have two fears constantly on his mind: Appeals, and the possibility that not recusing himself from an case involving his former employer would likely land him in hotter water than by simply recusing himself in the first place.
Just idle thoughts - standard disclaimers pply, etc. :)
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Re:New sympathetic venue for RIAA cases (Score:5, Insightful)
Parent
Re: (Score:3, Insightful)
Re:New sympathetic venue for RIAA cases (Score:5, Informative)
Also, he was elected for a term, which indicates elections are ahead. While most judges are pretty much re-elected ad-infinitum without so much as a "ho-hum" from the electorate, all it would take is a couple of well-placed commercials and ads touting his prior experiences and current performance (if negative), and he's toast. I don;t think the RIAA would have too much interest in bailing him out, so he'd be pretty much on his own.
Then again, who knows? :)
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Re:New sympathetic venue for RIAA cases (Score:5, Insightful)
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Re:New sympathetic venue for RIAA cases (Score:5, Interesting)
Frighteningly enough, so do most politicians...
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Re: (Score:3, Insightful)
He *might* serve five years, then go back to the riaa for giant buckos.
---
Damned weed, three pokes and I figured Iraq might turn into another Vietnam.
Re:New sympathetic venue for RIAA cases (Score:5, Funny)
So yeah, they'll be filing all their cases in his district.
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Re:New sympathetic venue for RIAA cases (Score:5, Informative)
Parent
awesome (Score:5, Insightful)
Re:awesome (Score:5, Insightful)
Parent
Re:awesome (Score:5, Informative)
1. It was primarily for the money, lots and lots of money.
2. It made him feel important; he was pretending to be a lawyer. (Never mind that most of the cases were "ex parte" cases and "default" cases, in which there was no opponent at all, and that in the remaining ones, most of the people couldn't afford a lawyer. So he was always "litigating" against either no one, or someone who had no lawyer, or in a few cases against an unpaid or underpaid lawyer. See, e.g. the eloquent opinion of Judge Otero in Elektra v. O'Brien [blogspot.com] in which the Judge, talking specifically about Mr. Gabriel's "cases", decried the fact that "the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants.") I.e., Mr. Gabriel is a man who has been making his living the past 2 1/2 years suing children, the disabled, the homeless, displaced persons, the elderly, people living on Welfare and Social Security, and other defenseless individuals, and taking money from innocent people simply because they couldn't afford the cost of defending a federal lawsuit.
And after communicating with him on practically a daily basis for the past 2 1/2 years.... I don't think he feels the slightest bit of shame over it.
I guess that about says it all.
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Well Ray (Score:5, Funny)
Parent
Re:awesome (Score:5, Insightful)
Unfortunately, it is people like this RIAA lawyer who give the legal profession such a bad reputation among the general public whereas honest and upright lawyers, like our friend NewYorkCountryLawyer, receive much of the ill will associated with that negative reputation and very little recognition for the good work that they do. I for one would like to take this opportunity to thank NewYorkCountryLawyer for the excellent work that he has done in compiling the various briefs, decisions, along with his own original commentary and arguments, and other related materials on his blog to assist in the defense of the ordinary working folks who are being crushed by the RIAA and their unscrupulous attorneys.
Some of the defendants may have sinned yes, but was their crime (assuming that they are convicted and that is not a certainty) really so great as to merit the complete destruction of their lives and their utter financial ruin? It is really too bad that the RIAA has chosen to take the lowest of the low roads with their lawsuit campaign, but hopefully with interested people like NewYorkCountryLawyer and Slashdot staying on top of things we can eventually compel the RIAA and their members to quit harassing the public in lieu of actually having a business plan.
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Re:awesome (Score:5, Funny)
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Re: (Score:3, Insightful)
Troll? How about humour?
NYCL is giving people hope by doing a great job. That is why he is respected here on /.
'perfectly good reputation of lawyers' == sarcasm. I'm surprised at the number of people who don't understand sarcasm.
Can we have moderators who actually understand what they are reading, please?
Re:awesome (Score:4, Funny)
I know. It's that 99% of lawyers that give the rest a bad name.
Parent
Re:awesome (Score:5, Interesting)
I think it's some new guy they hired, who doesn't know that I'm 60, that I've met Mr. Gabriel a number of times and communicate with him many times a week, and that I understand Mr. Gabriel's job a lot better than Mr. Gabriel does.
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Re:awesome (Score:5, Interesting)
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Re:awesome (Score:4, Informative)
A lawyer cannot throw a case just because he doesn't like his client. There are penalties for that, including those handed down from the bar and possible civil remedies.
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Re:awesome (Score:4, Insightful)
Parent
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There's always the possibility that he never believed in the RIAA's bullshit and just did it all out of greed, but someone with such loose morals isn't the kind of person you'd want behind the bench. It seems to be a lose-lose situation for the people of Colorado.
Or he could just think that, regardless of the RIAA's tactics, downloading copyrighted materials without permission of the copyright holder is the wrong thing to do....
/. regarding the permissibility of piracy.... I'm not saying that I never download anything, but 99% of the content I do download is not for sale in my continent and the company who owns the works has refu
For some reason, and it shouldn't amaze me by now (but it still does,) but I still get shocked by the level of groupthink that goes on @
THIS JUST IN... (Score:5, Insightful)
"RIAA announces they'll be filing all future litigation in Colorado!!!"
Appointed by Gov Ritter (Score:5, Interesting)
Re:Appointed by Gov Ritter (Score:5, Insightful)
Parent
Re:Appointed by Gov Ritter (Score:4, Insightful)
I'm not an American, so please accept my comments in the spirit in which they are intended.
I don't agree that the RIAA are tainted. Their tactics certainly are and they should be prevented from repeating them. But they have a job to do. There is illegal sharing of copyrighted material taking place and it is their job to protect their interests. Those who simply advocate the sharing should be made legal have, in my view, placed their heads up their arses.
Now I don't expect my point of view to receive wide acclaim here on /., but take a look at NYCL's post earlier on. He doesn't 'hate' Gabriel for what he has done, in fact if I read it correctly he respects him as a fellow professional. But he does question Gabriel's understanding of his own job. That's fine and is a reasonable attitude to take. Others have explained why Gabriel might have been duty bound to accept the cases in the first place but I, for one, am glad that the legal profession has many such individuals. Otherwise, who would defend the person accused of murder, who would look after the interests of the poor and homeless, and who would defend those accused of illegal file sharing? They all need lawyers.
The object of your displeasure ought to be the legal system that allows the RIAA to use the tactics that they do (although I think we all sense that this is changing for the better), but not the lawyer who uses the system within the current rules to win his case. I would want any lawyer that I employed to try his hardest to win on my behalf - providing that he did not do something illegal by doing so. If your response is that people cannot afford to fight the big money then that, again, is the system that needs changing, not the fact that some people have more money than others. Change the system so that the poorest can get access to the best legal minds. Make sure that all evidence is collected legally, presented accurately, and judged fairly. That is what NYCL seems to be so good at doing.
Of course we all feel dismayed when the system is gamed, and the RIAA do seem to have had some success at gaming it over recent years. But change the system - or find a better way of preventing illegal file sharing so that there is no need for the RIAA to have to go to court to try to protect their interests.
Why do I have the feeling that some will misunderstand what I have written and they are bashing at their keyboards seconds after I have pressed the 'Submit' button.....?
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Re:Appointed by Gov Ritter (Score:4, Insightful)
I can't imagine what you were reading of mine that could have made you believe I felt otherwise. This [slashdot.org] what I said about him. What part of that do you think shows "respect"? Then when someone said I shouldn't attack Mr. Gabriel just because he was my adversary, I responded with this [slashdot.org], saying that the reason I hate him has nothing to do with his being an adversary or taking positions contrary to mine.
Parent
Re:Appointed by Gov Ritter (Score:4, Informative)
Since this bill is regarding the legal system directly, it was through the House Judiciary Committee, which is split - like all committees - between Democrats and Republicans. Yes, the Democrats on the committee shouldn't have passed that. But let's see about the other side, hmm?
First, we see that passing the HJC was unanimous [arstechnica.com], so both sides passed it.
We see that the ranking Republican is Lamar Smith, who has sought to expand the DCMA [wikipedia.org]
The next most influential Republican is none other than Republican Representative Jim Sensenbrenner. For those of you without long-term recall, Rep. Sensenbrenner was the genius who introduced the PATRIOT ACT and authored Real ID [wikipedia.org]
Another member, Tom Feeney, has been written about in Wired for his attempts at touch screen tampering [wikipedia.org]
So yeah. It's the Dems behind this bill that are the bad guys.
Parent
State court, not federal court (Score:5, Informative)
there are still privacy concerns that come up (Score:4, Insightful)
Matters of individual and family welfare were supposed to be handled at the bottom level as much as possible. Somehow, the need to monitor the Kluless Klutz Klan and its ikl from above has been an inroad to stretching the normal lines of control. But people who see chances for personal "advantage" in those long lines of control are naturally going to push to extend them further, so it's only natural that matters of personal privacy end up getting handled under "federal" law now.
So maybe there aren't any privacy concerns that will come up in state court, and this will be a good place to keep the guy where he can't do further damage.
Somehow, I'm not optimistic.
(Yes, I am of the opinion that the primary evil in giving IP a legal existence is that it finishes off the erosion of privacy. RMS's essays on the relationship seemed extreme when he wrote them, but the reality of the threat is becoming quite obvious now.)
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Timing is everything (Score:5, Informative)
"Jumps Ship" (Score:5, Funny)
I totally knew they were pirates all along!
CO Voters: Reject Richard Gabriel in Nov. 2010! (Score:5, Informative)
The voters of the state of Colorado will have the opportunity to boot Richard Gabriel from the bench in the 2010 general election. Should they fail to do so, their next shot will be in 2018.
Colorado citizens now have two years to organize to unseat this particular justice should they find fault with the company he's kept and tactics he's used in his years of loyal service to the RIAA.
Judicial retention elections are almost always ignored but there's ample time to prepare for this one.
Re: (Score:3, Insightful)
Re:No mention of the RIAA (Score:5, Informative)
Are you implying the Democrats had anything to say about it? Somehow, I don't think the Democrats and the Republicans are much different on the issue. If you want some indication, look at the PAC money from various lobby groups.
Here is a help with a direct link to the Lobby money from the recording industry.
http://www.opensecrets.org/industries/indus.php?ind=C2600 [opensecrets.org]
When you see a Republican in this mess, it makes news. When you see a Democrat, it's buisiness as usual. Be sure to look behind the curtain. Bookmark the homepage.
http://www.opensecrets.org/ [opensecrets.org]
and the Alphabetical listing;
http://www.opensecrets.org/industries/alphalist.php [opensecrets.org]
See how your favorite canidate is doing and who supports them.
http://www.opensecrets.org/pres08/index.php [opensecrets.org]
Here is the good one. How is the canidates doing in regard to how the movie, TV, and Recording industry is supporting your canidate. It sure looks they don't care for McCain.
http://www.opensecrets.org/pres08/select.php?ind=B02 [opensecrets.org]
With over 3 million each to the Dem canidate and only just over half a million to McCain, you can tell who they want. Follow the money.
Parent
Re: (Score:3, Interesting)
Favors and influence. With no campaign support (little) they will have very little pull.
"Hey McCain, we need you to not veto bill XXXXX"
"RIAA, take a flying leap. You gave 6X the money to Democratic competitors in the campaign"
They are not going to have much pull with this one, unless they dangle re-election money. If they do, they need to start early.
I'm with you, I think McCain is going to win. There are enough Democrats that either