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Magistrate Suggests Fining RIAA Lawyers 133

NewYorkCountryLawyer writes "Angered at the RIAA's 'gamesmanship' in joining multiple 'John Does' in a single case without any basis for doing so, a Magistrate Judge in Maine has suggested to the presiding District Judge in Arista v. Does 1-27 that the record companies and/or their lawyers should be fined under Rule 11 of the Federal Rules, for misrepresenting the facts. In a lengthy footnote to her opinion recommending denial of a motion to dismiss the complaint (PDF, see footnote 5), Judge Kruvchak concluded that 'These plaintiffs have devised a clever scheme to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined.' She noted that once the RIAA dismisses its 'John Doe' case it does not thereafter join the defendants when it sues them in their real names. Arista v. Does 1-27 is the same case in which student attorneys at the University of Maine Law School, "enthusiastic about being directly connected to a case with a national scope and significance", are representing undergrads targeted by the RIAA."
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Magistrate Suggests Fining RIAA Lawyers

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  • by Anonymous Coward on Tuesday January 29, 2008 @06:53PM (#22228950)
    Can you imagine if your name really was "John Doe"? Imagine the fun you could have showing up for court dates with alibi's for everything. "No, your honour... I was at a marriage ceremony on that date and I have 200 witnesses as well as photographic and video evidence"
    • by Actually, I do RTFA ( 1058596 ) on Tuesday January 29, 2008 @07:05PM (#22229070)

      an you imagine if your name really was "John Doe"?

      Or if your license plate was NO PLATE [snopes.com]? It would be hell dealing with all the John Doe warrants that will pop up in automated systems whenever you try to do anything.

      Sorry to those of you who follow the above link and get Zango adware [slashdot.org].

      • Re: (Score:3, Interesting)

        by Anonymous Coward
        I personally know someone who obtained the first personalized license plates that were available in his state almost 40 years ago. His initials were - DMV. The DMV approved his request and then spent years trying to rescind the plates. This man had more money than he knew what to do with, so he let his lawyers handle everything. It was a matter of principle. To this day, he still owns the car, with the original license plates. Some time ago the state declared all of the existing three digit license pl
    • Re: (Score:2, Funny)

      by zcat_NZ ( 267672 )
      more importantly, if you were ever actually sued by the MAFIAA the courts would end up in an endless loop of subpoenas only leading to further 'John Doe' lawsuits..

    • by mpe ( 36238 )
      Can you imagine if your name really was "John Doe"? Imagine the fun you could have showing up for court dates with alibi's for everything. "No, your honour... I was at a marriage ceremony on that date and I have 200 witnesses as well as photographic and video evidence"

      Especially if you were the groom and the bride was called Jane.
    • There was really someone named like that in 1960s. He was arrested and forced to appear in court by cops because it matched his SSN card.
      It took him a lot of effort to clear his name, but i don't think it deterred the judiciary from continuing to use John Doe's everywhere.
      Seems judiciary preaching is for others only. Not for itself. "Do as i say, not as i do."
      (Read this incident in an old LIFE magazine my grandpa was having...was too bored on one those nights when just sleeping and doing nothing in bed with
  • is warming up.... I have some hope in the US court system.
    • Re:The fat lady (Score:4, Interesting)

      by jaymaxSEA ( 1044192 ) on Tuesday January 29, 2008 @06:58PM (#22229004)
      Rule 11 sanctions may possibly be an effective deterrent. Rule 11 sanctions are levied against the attorneys, not the clients. I doubt that the RIAA's lawyers are going to condone their client's behavior for very long if the RIAA's courtroom tactics forces their own lawyers to pay money to the court.
      • Re:The fat lady (Score:5, Insightful)

        by AJWM ( 19027 ) on Tuesday January 29, 2008 @07:09PM (#22229100) Homepage
        And the lawyers don't just tack the fines onto the bills they submit to the RIAA because...?
        • Well, that's the point, right? The RIAA will see it's bills go up and have to answer to their constituents (The record labels).
          • by Benaiah ( 851593 )
            As far as I am aware the RIAA gets to keep the meat from its kills, and doesnt give any back to the record labels.
            If the costs go up it will be the RIAA who will go hungry not the labels.

            The labels might see that the RIAA is losing its effectiveness and form a new super cartel and find new ways of extorting money from copyright infringers. Like associating p2p with child porn.
        • Maybe they fear the court's reaction when they are caught the second time. If the first offense gets you a fine, what about second and third time? Disbarment?

          IANALANFWSFL (I am not a lawywer and not familiar with sanctions for lawyers), so could someone comment on this who knows more about it?
          • I don't know if there would be an automatic disbarment. Usually this has to be determined by a review panel outside the courts fining or sanctioning a lawyer. However, it would create a pile of evidence working against ethics requirements to be a member of the bar and thus all it might take is a couple of concerned citizens making complaints against lawyers showing repeated violations of rule 11.

            In other words, even if the court's rules don't have a provision for disbarment, regular concerned citizens could
      • Actually, it is possible for the party and not only the attorney to be sanctioned. From reading the language of the rule below, I'd agree that sanctioning the attorney would probably be more common (though I haven't done an exhaustive study on this). Altgother, sanctions in general are pretty rare.

        Federal Rule of Civil Procedure 11
        (c) Sanctions.
        (1) In General.

        If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an app

    • by Anonymous Coward
      Can you believe it? In a press conference last week, Mitch Bainwol of RIAA infamy tells us, "Ladies and gentlemen, for a long time now, we've seen the signs of global recession. We can say confidently that this is the end result of illegal music piracy." He goes on with graphs that show the alleged correspondence. Link here [youtube.com]
  • When trade associations go off the rails.
  • by Anonymous Coward
    It's never been a more appropriate time.
  • by account_deleted ( 4530225 ) on Tuesday January 29, 2008 @07:00PM (#22229020)
    Comment removed based on user account deletion
    • Re: (Score:2, Funny)

      by Anonymous Coward

      I thought it said the magistrate suggested FIRING the attorneys. It seems that would be useful too, but there'd be ten more to replace them.
      That's how I initially read it also. But it clearly depends how the lawyers are fired as to how fast others will replace them. Out of cannons might be the most effective method. Into the Sun would also work.
    • by Divebus ( 860563 ) on Tuesday January 29, 2008 @07:32PM (#22229272)
      We could fire the attorneys into space, couldn't we? Please?
      • That might backfire when we end up dealing an entirely different type of attorney. Though if we get rid of them too, we'll be pretty much home free.
      • We could fire the attorneys into space, couldn't we? Please?

        Perhapse that rail gun [slashdot.org] would do the trick? The excape velocity is quite obtainable these days! ...only the RIAA lawyers head may not quite fit through the opening between the rails at this time. We all well know that with rail guns the density, or mass of the projectile, is everything, so by my calculations with the density of Encephalitis Spongiform required to file these law suites in the first place, it may still make it feasible. After all

      • Re: (Score:2, Funny)

        by xZoomerZx ( 1089699 )
        Great, more space junk. Thanks pal.
        • Great, more space junk. Thanks pal.
          Nah...they'll burn up on re-entry...though we'll just have to track their hearts as stone won't so easily burn up and might actually get through. Thankfully we have NORAD for that ;-)
      • Somebody suggested that solution for nuclear waste, but it was deemed unpractical due to the fallout risk. The current best proposal is to cleave the troublesome elements into pieces by partitioning them using nitric acid and subsequently bombarding them with a large quantity of radiation. According to my calculations the same method should work very well in this case too.
      • ... being used for important scientific missions. ... ...

        Hah, just kidding.

        OK, launch the lawyers. And let them keep the Shuttle while you're at it, it will save us a bundle.
    • Re: (Score:3, Funny)

      by ScrewMaster ( 602015 )
      I thought it said the magistrate suggested FIRING the attorneys.

      A more effective solution might be filing the RIAA's attorneys (under "W" for Weasels, say) and then locking the cabinet. Just make sure it's a particularly sturdy model, and if it so happens that your filing cabinets are inside a bank vault so much the better.
    • by mpe ( 36238 )
      I thought it said the magistrate suggested FIRING the attorneys.

      Do they qualify as "carbon neutral" fuel though?
    • I've got a fever, and the only prescription is more cowbell!
      Just so long as you know I don't take insurance.
  • by FlatEric521 ( 1164027 ) on Tuesday January 29, 2008 @07:00PM (#22229022)
    Do you get the feeling that judges are tired of dealing with the RIAA now? I know what they have been doing is crap legal tactics to intimidate people, but I would have to guess its very rare for a judge to recommend fining a lawyer for their tactics.

    Unfortunately, I assume not even a fine like this will slow down the RIAA. They will probably just move on to their next questionable tactic and keep going.
    • Not really (Score:5, Informative)

      by imtheguru ( 625011 ) on Tuesday January 29, 2008 @07:40PM (#22229352)
      The judge noted a clever tactic being used by the RIAA to obtain the lists of names from the captured ip addresses. A joint submission was being made to the court to gain clearance for this discovery process. Upon gaining the real names, the RIAA went on to sue them as individuals and ignored the group-status declared to the court.

      RIAA lawyers were bending the law to get names--this was seen as being done in bad faith. Hence the footnote and the news article.

      You may now resume your activity of reading further into the judge's remarks.

      Cheers.
      • Re:Not really (Score:5, Insightful)

        by Jason Levine ( 196982 ) on Tuesday January 29, 2008 @09:36PM (#22230316) Homepage
        So, if I'm reading this properly, the RIAA would be forced to do one of two things:

        1 - Sue the batches of people as a group. This wouldn't stand long as it would be easy to prove that their alleged wrongdoings weren't connected in nature.

        2 - Submit the John Doe suits separately. This would backfire as judges wouldn't be too happy to see a giant stack of individual lawsuits being added to their docket. The RIAA would quickly see their lawsuits getting tossed out by judges and perhaps even fines issued for wasting the court's time.

        NewYorkCountryLawyer, if you're reading this, can you verify whether I'm reading this right?
        • Re:Not really (Score:5, Informative)

          So, if I'm reading this properly, the RIAA would be forced to do one of two things: 1 - Sue the batches of people as a group. This wouldn't stand long as it would be easy to prove that their alleged wrongdoings weren't connected in nature. 2 - Submit the John Doe suits separately. This would backfire as judges wouldn't be too happy to see a giant stack of individual lawsuits being added to their docket. The RIAA would quickly see their lawsuits getting tossed out by judges and perhaps even fines issued for wasting the court's time. NewYorkCountryLawyer, if you're reading this, can you verify whether I'm reading this right?
          What it would mean is that instead of bringing one "John Doe" suit to get the names and addresses of the 27 people, they would have to bring 27 different "John Doe" suits.
          • Re: (Score:3, Interesting)

            Thanks. That's pretty much what I thought. It would be more time, energy, and money for their lawyers as well as more time spent by judges (who would be more likely to get annoyed by RIAA vs John Doe #200).
            • Well according to procedures, that is how it is supposed to be. If 200 people have wronged you, you can bring 200 lawsuits if the people had nothing to do with each other. It is a lot cheaper for the RIAA to file for one lawsuit and tack on 200 John Does. And this is not the first time the RIAA has been told not to lump all the defendants together. A federal court told the RIAA in Fonovisa vs Does 1-41 (2004) [ilrweb.com] that they may not file all unrelated John Does together.
          • Im no lawyer but this would only apply to the Maine courts, right?
          • by mstahl ( 701501 )

            So, is it more of a cost-cutting measure or is it because they know it's easier to slip one faulty lawsuit past the courts than trying to slip 27 past?

            Also let me just say how great it is to find a lawyer who's so concerned with preserving the sanity of the law as it is written rather than allowing it to be pilfered senselessly by his contemporaries. Keep up the good work, NewYorkCountryLawyer!

            • So, is it more of a cost-cutting measure or is it because they know it's easier to slip one faulty lawsuit past the courts than trying to slip 27 past?
              It's a cost-cutting measure.
          • What it would mean is that instead of bringing one "John Doe" suit to get the names and addresses of the 27 people, they would have to bring 27 different "John Doe" suits.

            Which they could certainly try, perhaps with "form" litigation where the filing papers are all templated so that the complaints become boilerplate. However, how long could this go on before, as the grand parent suggested, the judges become tired of having their time wasted by the RIAA in "trivial" matters OR as those in the legal profession say, "De minimis non curat lex" (The law does not deal in trifles)?

        • by eison ( 56778 )
          This would mean they would have higher costs, and thus be less willing to settle quietly, so you'd probably see more life-wrecking judgements like the $222,000 against a single mom for sharing 24 songs.
    • Actually, it is not rare at all for a Judge to fine a lawyer. What happens when lawyers screw up is they get "sanctioned". It's when they don't follow the rule of law.
    • by mpe ( 36238 )
      Unfortunately, I assume not even a fine like this will slow down the RIAA. They will probably just move on to their next questionable tactic and keep going.

      Or the fines get treated as a "business expense". Jailing the lawyers might be far better at hindering the RIAA.
  • by Anonymous Coward on Tuesday January 29, 2008 @07:01PM (#22229030)
    There's no point in fining rich lawyers and even richer multinational media corporations pathetically small amounts of money. Instead of a fine, maybe a lit candle should be held under the scrotum of each laywer and board member. It doesn't have to be held there long. Ten to fifteen seconds should do the trick.

    • Since when do they have balls?
    • But since it has already been established that out of the 8th Circle of Hell came lawyers, would fire really do anything to them?
    • That's way too harsh.

      I recommend they be sentenced to Max-Security Prison for 48 hours; and that their cell partner be 'Bubba': a 200 lbs neanderthal who has never and will never see sunlight.
    • Comment removed based on user account deletion
      • i'd say 2^(n-1) hours would be better, where n is the cumulative number of pointless/merit-less suits? first one is free (honest mistake), but it adds up quickly from there.

        2 hours, 4, 8, 16, 32, 64...
    • by mstahl ( 701501 )

      This is why disbarment would probably be the best course of action. Fines are not an effective deterrent for these guys because, like you said, they have way too much money for that, and like someone else pointed out earlier they could just pass the fines along to their clients. Disbarment is the ultimate penalty for a lawyer, and seriously hurts them as they are no longer able to make any money because it is illegal at that point for them to be practicing law in whichever state disbars them.

  • Typical (Score:4, Interesting)

    by Stargoat ( 658863 ) <stargoat@gmail.com> on Tuesday January 29, 2008 @07:02PM (#22229044) Journal
    This is typical. Lawyers go after the most vulnerable members of our society, trying to score the big win that will elevate them to next political office or paycheck. Children are targeted, thrown in jail for decades to 'make the streets safe'. Why is it the streets are safe in Europe, Australia, Canada, or Japan and not here? Why is there a need for vile men like Paul Morrison of Kansas to put 16 year old girls in jail for a decade because they defended themselves from beatings and sexual abuse?

    Until we're willing to elect leaders to make a change, until we are willing to demand that the education system educate, until we vote with our pocketbooks and with our protest signs, this will continue. How long are we going to let the law abuse us? How long will our children be tossed in jail among adults to be murdered and sexually abused?
    • by nomadic ( 141991 )
      This is typical. Lawyers go after the most vulnerable members of our society, trying to score the big win that will elevate them to next political office or paycheck.

      Uhh...wha? How does going after the most vulnerable members of society result in a big paycheck? Lawyers like to go after the richest, most powerful members of society.
    • by pev ( 2186 )

      Children are targeted, thrown in jail for decades to 'make the streets safe'. Why is it the streets are safe in Europe, Australia, Canada, or Japan and not here?

      Are you serious? Have you ever been to any of these places? How can you even justify grouping 'europe' as a safe place when it consists of 48 distinct and different countries which all have their own unique issues?

      I can only speak of living in the UK and believe me it's not all red telephone boxes and cream teas. I know sometimes children are target

      • Statistically, I would be safer in any major European city than any major US city. Including the UK.

        Let's take a look at a typical UK city, say, Manchester and compare it to a typical US city, say, New York, and a violent city, like Saint Louis. In Saint Louis, crime in 2006 was 14228.6 per one hundred thousand [areaconnect.com]. In Greater Manchester, crime in 2005 was roughly 1110 per one hundred thousand [police.uk], with a population around 2.55 million. (This information might very well be apples to oranges, but is police re
  • Rule 11 (Score:5, Informative)

    by kabloom ( 755503 ) on Tuesday January 29, 2008 @07:28PM (#22229226) Homepage
    Federal Rules of Civil Procedure - Rule 11

    The judge specifically wants to fine them under Rule 11(b)(3), which states:

    (b) By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery
    Basically, it's a serious ethics violation, and even being called on it without a penalty is going to kill these lawyers' reputations, and effectiveness in a courtroom.
    • Re:Rule 11 (Score:5, Informative)

      by kabloom ( 755503 ) on Tuesday January 29, 2008 @07:30PM (#22229250) Homepage
      Whoops. I forgot the link:
      Federal Rules of Civil Procedure - Rule 11 [cornell.edu]
    • Re: (Score:3, Interesting)

      by jesdynf ( 42915 )

      That's not the first time I've heard a claim like that, and -- from the perspective of somebody who doesn't know anything about hands-on practice of law -- it doesn't seem credible. Can you go into more detail?



      Is there a blacklist somewhere? How will it interfere with their ability to attract clients? Will people drop them as attorneys? Exactly how will it affect how they're perceived by a judge? By opposing counsel?

    • Re:Rule 11 (Score:4, Informative)

      by darkmeridian ( 119044 ) <william.chuang@NOSpAm.gmail.com> on Tuesday January 29, 2008 @09:24PM (#22230224) Homepage
      Getting called out on it BY THE JUDGE is really bad. Parties accuse each other of Rule 11 violations quite frequently, and judges usually ignore these claims--after all, your job is to think outside the box to advocate for your client and this usually pisses off the other side. But for a judge, even a magistrate judge, to say that there may be a Rule 11 violation is out of the ordinary. Wowie.
      • Getting called out on it BY THE JUDGE is really bad. Parties accuse each other of Rule 11 violations quite frequently, and judges usually ignore these claims--after all, your job is to think outside the box to advocate for your client and this usually pisses off the other side. But for a judge, even a magistrate judge, to say that there may be a Rule 11 violation is out of the ordinary. Wowie.
        You got that right.

        Wowie, indeed.
  • Good luck (Score:2, Insightful)

    I wish those student lawyers the best. The RIAA typically gets the best justice money can buy. If they can win this suit, they'll have long careers ahead of them.
  • So what? (Score:3, Interesting)

    by gnasher719 ( 869701 ) on Tuesday January 29, 2008 @08:02PM (#22229560)
    The defendants still lost their motion to disallow the subpoena for their identities. I also cannot find anything in the decision where the judge actually says she considers that the RIAA lawyers should be fined. Sure, she makes clear that she doesn't like it, but that is all. This is all very unfortunate so far.

    • exactly, the doe defendants lost their motion to dismiss. footnote 5 was just a nice little bone the judge threw them before throwing them to the wolves again.
    • The defendants still lost their motion to disallow the subpoena for their identities. I also cannot find anything in the decision where the judge actually says she considers that the RIAA lawyers should be fined. Sure, she makes clear that she doesn't like it, but that is all. This is all very unfortunate so far.

      I would think if the joinder is found to be improper, then all the Does after Doe #1 would quickly be severed, meaning only the first Doe would have his/her information subpoenaed, and individual

  • by DustyShadow ( 691635 ) on Tuesday January 29, 2008 @09:31PM (#22230280) Homepage

    I share the Doe Defendants' concern over the absence of individualized allegations, but for a different reason. My concern has to do with the rules of joinder, see Rule 20(a), and whether it is appropriate for the Plaintiffs to join claims against disparate defendants concerning disparate (albeit similar) conduct, even if only for the purpose of gaining the authority to serve subpoenas to obtain the defendants' names and contact information. I assume they have done so in order to limit their filing fees and make their discovery work more manageable, but I am not convinced that it is proper. See, e.g., DirecTV, Inc. v. Adrian, 2004 U.S. Dist. LEXIS 8922, 2004 WL 1146122 (N.D. Ill. May 17, 2004) (involving claims that defendants separately pirated satellite TV services, without any allegation of concerted action, concluding that joinder was improper, and severing all but the first named defendant from the action). In particular, paragraph 20 of the complaint alleges that the claims against all defendants arise from the "same series of transactions or occurrences" because the Doe Defendants have the same ISP (the University of Maine) and all engaged in file-sharing over the Internet using that ISP. The complaint wants, however, any allegation of concerted conduct. The allegation that all of the claims arise from the same series of transactions or occurrences because all of the defendants used the same ISP sounds good, but makes little sense when one appreciates that having a common ISP says nothing about whether the use of that service by two or more people amounts to the same transaction or occurrence. Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. Separately, the Court may sever defendants sua sponte, pursuant to Rule 21, although dismissal of the action is not authorized. I appreciate that increased costs may redound to the defendants' detriment eventually, but it is difficult to ignore the kind of gamesmanship that is going on here with respect to joinder. Suppose, instead of university students, the record companies chose to target all individuals within the District of Maine who had used these P2P services and had TimeWarner Cable for their ISP. Would all those individuals be properly joined in a single complaint? I think the Plaintiffs know the answer to that question because on May 5, 2007, many of these same plaintiffs filed a very similar lawsuit, Atlantic Recording Corp., et al. v. Does 1-22, 1:07-cv-057-JAW. A procedure similar to the one used in this case was adopted in that case, but no motions to dismiss or motions to quash were filed and presumably the plaintiffs obtained the discovery they sought. The case was voluntarily dismissed on July 16, 2007. Following that dismissal the same counsel filed at least three separate cases in this court: Atlantic Recording Corporation, et al. v. Anna Lenentine, 1:07-cv-133-JAW, on September 4, 2007 (still pending); Capitol Records Inc. v. Cara Laude, 2:07-cv-154-GZS, on September 4, 2007 (settled and dismissed on January 22, 2008); and Atlantic Recording Corp. v. Christopher Leavitt, 2:07-cv-156-DBH, on September 4, 2007 (voluntarily dismissed with prejudice on October 16, 2007). The relevant allegations in the respective complaints simply state that the defendants were "identified as the individual[s] responsible for that IP address at that date and hour" without reference to how the identification was made. However, there is certainly a "plausible inference" that the identifications were made as a result of the May lawsuit. It is curious that no attempt was made to join these cases as arising from the same transaction or occurrence if my plausible inference is accura

  • *I wonder why they would even think of such a think oh so quietly to myself*
  • An American judge actually protecting someone's rights in a MAFIAA case? Has hell frozen over?
  • by hhawk ( 26580 )
    It would be nice if after a few victories if enough of a "criminal pattern" could be established that a class action suit could target both the RIAA, their members and specifically their Laywers...
  • The lawyers are the vultures that take a bad situation and profit from it, these bastards thrive on conflict, let take the buggers down a peg or two.
  • This tactic would be brought to a screeching halt if the courts required that private data uncovered under court ordered discovery could only be used at the trial for the case where the subpoenas were issued. This includes RIAA extortion attempts by their Settlement Support Center. Note that the RIAA typically doesn't even say how they got the names they've sued when they file the individual cases afterwards. That way they don't have to defend their illegitimate tactics.

    Note also that this common sen

    • Actually, existing law -- were it applied -- would stop the John Doe cases easily. Under existing law, (a) the proceedings would not be ex parte but would be on notice, and (b) the plaintiffs could not get the John Doe's identity unless they had
      -evidence
      -in a form that would be admissible at trial
      -sufficient to establish each and every element of
      -a legally sufficient claim for copyright infringement.

      The RIAA has none of the above.
      • The RIAA has none of the above.

        Then why is there virtually no judge willing to put a stop to this at the initial John Doe ex parte stage? I can't believe that they all slept through that day of class in judge school.

        • Re: (Score:3, Informative)

          Then why is there virtually no judge willing to put a stop to this at the initial John Doe ex parte stage?
          1. Because the cases are ex parte. I.e., there's no one there to point out to the judge what the law is.

          2. This judge [blogspot.com] did.

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