NC Judge Takes "A Fresh Look" At RIAA Subpoenas 86
NewYorkCountryLawyer writes "When some North Carolina State students recently brought to the attention of the Court the apparent illegality of the RIAA's investigations by unlicensed investigators, they also caught the attention of the judges. After reading these new papers, District Judge Louise W. Flanagan, who admits that she's been routinely signing the RIAA's ex parte discovery orders in the past, has indicated that she is now going to take 'a fresh look' at the RIAA's tactics. She issued a stay of the subpoena, ordering NC State not to respond to it, and referred the motions to dismiss the cases to a Magistrate Judge for him to take that 'fresh look' at what has been going on."
Good (Score:4, Insightful)
Treat these subpoenas like they came from the mafia or a drug cartel. Make them go out of their way to do something crazy, like having proof.
Re:Good (Score:5, Informative)
Treat these subpoenas like they came from the mafia or a drug cartel. Make them go out of their way to do something crazy, like having proof.
They have proof*, the issue is whether the proof was legally obtained.
*for small values of proof
Re:Good (Score:5, Insightful)
They have no proof, since it can not be verified it is correct.
Here credibility enters the stage. Only officers of the police (etc) have sworn the statement to forfill truthfullness.
Re:Good (Score:5, Interesting)
The RIAA is using false pretenses to gather the names though. The biggest problem so far is that they are "jumping" cases... filing one case against "jonh doe" at an ISP to get names, then taking discovery from that case to create new cases against individuals NOT in a group... not legal in many places as it is false pretense to the court as well as wastes time tracking down what a federal court would consider trivial cases.
The other problem is how they got the IP addresses in the first place... they've never allowed judges to look behind the veil at WHO was generating these and the paper trail...was it obtained legally? That question is getting very murky and deserves investigation. when challenged they drop cases instead of provide the evidence. Judges are getting tired of being systematically duped. These are Corporate national lawyers this behavior is not acceptable at that legal level. Not telling the "whole truth" is equivalent to lying, just harder to prove.
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They have no proof, since it can not be verified it is correct.
Here credibility enters the stage. Only officers of the police (etc) have sworn the statement to forfill truthfullness.
The issue here is that the **AA's investigator is not licensed to investigate.
So while the evidence they gathered may or may not be correct, it was gathered illegally and the correctness becomes moot.
Anyone submitting evidence or an affidavit to a Judge has to swear (or affirm) that it's the truth. What I think you're talking about, is the fact that Judges generally give Police Officers the benefit of the doubt when it comes to hearsay testimony in support of a warrant or subpoena. Because the "(etc)" that
Re:Good (Score:5, Informative)
What would be interesting to find out is if the **AA attorneys had internally discussed the issue of private investigator credentials before the public or defendants raised the matter. Because if the **AA lawyers knew and didn't say anything to the Judges, they'd be looking at sanctions.
1. They're not smart enough to have thought about it on their own.
2. Tanya Andersen's lawyer thought about it for them [blogspot.com] in October 2005, so they've been on notice since then.
3. So yes they have exposure to sanctions, big time.
4. Or maybe worse, because they are aiders and abetters. If you hire a hit man you're equally guilty of the murder. We're talking criminal law here, because the use of unlicensed investigators is a criminal matter.
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I would have thought it would be civil matter. I mean, come on, just because you hired an unlicensed investigator, doesn't mean you have to go to jail. You're not a menace to society, you're not endangering anyone.
[/subtle parody of typical /. opinion on copyright infringement]
Re:Good (Score:5, Funny)
Two possibilities:
1) This is a christmas miracle and a single Judge is turning out to be something other than a slimy evil-beyond-belief scumbag and we'll all live happily ever after...
2) She's just doing this to force them to bribe her again.
Re:Good (Score:5, Informative)
there's no bribery here, just misrepresented court documents. These are judges used to corporate case language for "stolen" IP and contract violations. The RIAA lawyers are disguising these "common" violations in mountains of legal speak like they were running pirate manufacturing operations... Judges to date have been willing to overlook the legal hyperbole because both sides will get their day in court... at least that's how it's supposed to work.
now that there have been more than a few plainly misrepresented case at all the stages, before discovery and during trials, these cases are going to get extra scrutiny to their worthiness before allowing them to continue en masse. It's wasting the court's time and of questionable legality.
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... that they came from somewhere as bad as the mafia or a drug cartel? Oh no, you don't mean that, of course.
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I'd submit that the music industry has more to do with drug cartels than most would admit.
Or do musicians grow the famously massive quantities of drugs they're always smoking, snorting, and ijecting in their back yards? Maybe MC Hammer has a grow op in his pants?
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I have a feeling if the schmoes in the RIAA value their liberty, they won't procure drugs for the musicians. Can you see the RIAA stepping up, and admitting that its their fault? I'm guessing there's more accessories than drug dealers in the RIAA.
Hurray for justice! (Score:2, Funny)
Even if it's late.
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What do you expect? Justice is blind! By the time she actually makes it to a RIAA trial, it's usually been over for weeks!
Re:Hurray for justice! (Score:5, Insightful)
Actually in the U.S, justice is a whore, she fucks the highest bidder.
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Still, this would have resulted in a six-month suspension had it stuck. The judge told me that the law had recently been
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She's a blind whore. She fucks the highest bidder and takes bukkakke from group interests right in the eye.
Oh well... (Score:5, Funny)
Time to look for another business method...
Re:Oh well... (Score:5, Insightful)
Unfortunately, I believe their answer to the law not allowing this isn't to change their business methods, but to change the law. Here in the US, this seems to be the easiest and cheapest solutions -- the price of your average politician is too high for individuals but low enough to not make a dent in a corporation's coffers.
Do us all a favor the coming November -- look up the contributors to your representatives before voting, and strike anyone who has accepted money from the entertainment cartels or their lobbyists.
Re:Oh well... (Score:4, Insightful)
Don't forget, the recording industry and the movie moguls are getting results from policticians in Europe and elsewhere now too. Our main hope may still lay in judges are are mostly expected to recuse themselves from a case if they could be said to have bias in it, like having gotten polictical donations from any of the involved. Not only watch what laws are being snuck in, but what treaties exist and are trying to be modified or added.
Tons of amicus curiae may need to be filed across the country to avoid ignorance amongst judges and defending lawyers, such as the EFF and Ray have provided before. May even need a nationwide ( maybe even worldwide ) watch system to alert capable filers of amicus curiae to new filings of lawsuits by the RIAA/MPAA.
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Re:Oh well... (Score:5, Insightful)
This is what Lessig was complaining about. All "throw the bums out" and term limits does is disrupt the cozy relationships for a short time. Even now, I'm sure lobbyists are maneuvering in expectation of a big Democratic win in the US election this year. The more likely it looks, the more they can plan for it, and the shorter the disruption will be. Lessig hopes more transparency can fix this problem.
I've an idea that yet another reason why wealth concentration is bad is that the money cannot be used as efficiently. The rich waste money extravagantly because it isn't worth their while to be prudent and careful with money, it's time that counts for them. They will blow off $20 or $100 or even more if it seems it might save them 10 minutes of time. In addition to the less than 100% performance they get out of their money by such practices, by being willing and able to pay extravagantly, they add to inflation, making it harder for everyone else. It's an outrage the way upper management pay has so grossly outpaced peon pay. At the other extreme, the poor are constantly forced to accept bad deals because they have debts to pay right now. Cash that paycheck at the check cashing place that skims 5%, so they can get the money and get it into their checking account right away, before the check they wrote the day before has a chance to cause them to be overdrawn, triggering a cascade of expensive fines. (You know how banks love to delay deposited checks to make penalties happen. They can't use that "check clearing takes time" excuse for cash deposits.) Lose 5% so they don't lose even more in penalties.
But back to the topic. It looks as if the RIAA's reputation in court is at last cracking. They've been getting away with a lot of crap an individual couldn't do, because courts have been more believing in the professionalism of corporate lawyers and corporate lawsuits. Courts are no longer taking the RIAA's professionalism for granted. The courts are at last realizing that although a corporation has a lot to lose by ruining its own reputation, the RIAA really is that stupid.
Way to go RIAA, turn the public against you. Turn artists against you. And now, turn the courts against you. Trash your reputation. There anyone left who still thinks you have any reputation? Congress maybe? Apple Computer?
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Re:Oh well... (Score:5, Informative)
It looks as if the RIAA's reputation in court is at last cracking. They've been getting away with a lot of crap an individual couldn't do, because courts have been more believing in the professionalism of corporate lawyers and corporate lawsuits. Courts are no longer taking the RIAA's professionalism for granted.
Yes I think you're right. For a judge to publicly acknowledge that he made a "manifest error of law" [blogspot.com], because he was misled by the RIAA's lawyers, is extraordinary.
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You guys HAD the choice of Ron Paul, but everyone said he was an insane fringe candidate.
He doesn't have a hundred million dollars from a lifetime of accepting bribes, he's got 5 million dollars from a lifetime of community service.
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Ron Paul HAS to run as a Republican. He doesn't have any choice. If you run as anything but a Republican or a Democrat, then you're just a spoiler candidate because of the myth of the 2-party inevitability in the US.
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Or to paraphrase Emperor Palpatine, I will make it legal
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look up the contributors to your representatives before voting, and strike anyone who has accepted money from the entertainment cartels or their lobbyists.
Or any other cartel... Which pretty much means all of them as that is how it works.
Even the ones that don't accept payoffs, are just newbies and will as they are indoctrinated into the system.
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So... You are advising him not to vote at all ?
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Oh well... It was fun while it worked.
Time to look for another business method...
...or look for a new job.
These RIAA clods may find this particular line useful in the near future:
"Would you like fries with that?"
Re:And so it begins! (Score:5, Interesting)
Goliath falls dead. After a stunned silence, the crowd turns back to tending breakfast around the campfire, content to go on with what they were doing. All of David's friends celebrate, but the politicians and leaders simply begin plotting a new strategy.
And some people think CoS is evil?
Seriously: I'm glad to see that the courts are finally paying attention... to the law instead of politicians.
Re: (Score:2, Insightful)
I'm glad to see that the courts are finally paying attention... to the law instead of politicians.
Who is it that you believe writes the law?
Re: (Score:2)
Both. The congress passes laws, but the courts determine how it's going to be interpreted, which is a more subtle power, but one that allows the courts to effectively write the law when they want to.
Also, there's an entire body of law known as "common law", created by the courts. The courts themselves hold full authority in what the common law is, since they're the ones who created it, long ago.
Re: (Score:2)
It looks like they might already have one. Currently "on test" in France with plans to extend to the entire EU.
What now? (Score:3, Interesting)
OK, which one of you guys at RTP did this? (Score:5, Funny)
So fess up. Which one of you geeks up at Research Triangle Park left the cluesprayer on last night, because it's obviously leaking cluons all over the friggin' state.
I'm not saying you should stop the leak, by the way. I'm just curious as to the source.
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Way to go ...
Duke Nukem Forever is innocent !!!
Free Duke Nukem Forever !!!
Re: (Score:2)
"Cluons" Ok I love this one :D
Good for the students (Score:1)
!suddenoutbreakofcommonsense (Score:3, Interesting)
Took too long.
Re: (Score:2)
oh so you want me to read that thing before I sign it? Isn't that a little extreme?
Getting a license may not be too easy: (Score:5, Interesting)
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_74C.html [state.nc.us]
Section 74C-12: Denial, suspension, or revocation of license, registration, or permit; duty to report criminal arrests.
(a) The Board may, after compliance with Chapter 150B of the General Statutes, deny, suspend or revoke a license, registration, or permit issued under this Chapter if it is determined that the applicant, licensee, registrant, or permit holder has done any of the following acts:
(1) Made any false statement or given any false information in connection with any application for a license, registration, or permit or for the renewal or reinstatement of a license, registration, or permit.
(6) Engaged in or permitted any employee to engage in a private protective services profession when not lawfully in possession of a valid license issued under the provisions of this Chapter.
(8) Knowingly made any false report to the employer or client for whom information is being obtained.
(12) Undertaken to give legal advice or counsel or to in any way falsely represent that he or she is representing any attorney or he or she is appearing or will appear as an attorney in any legal proceeding.
(13) Issued, delivered, or uttered any simulation of process of any nature which might lead a person or persons to believe that such simulation, written, printed, or typed, may be a summons, warrant, writ or court process, or any pleading in any court proceeding.
(17) Failed to notify the Director by a business entity other than a sole proprietorship licensed pursuant to this Chapter of the cessation of employment of the business entity's qualifying agent within the time set forth in this Chapter.
Re:Getting a license may not be too easy: (Score:5, Interesting)
If I am reading that right, it means it very likely (if the magistrate judge follows the law) that the RIAA and their current cohorts will never be allowed to carry out any form of investigation in NC.
Nice!
Well, one can hope...
Silence... (Score:3, Funny)
Re:Silence... (Score:5, Funny)
How am I supposed to get good legal commentary if no-one's posting on /.?
Don't look at me. I shouldn't even be working today.
Re:Silence... (Score:5, Interesting)
Well, since it is the Fourth of July, thanks for letting us know the fight goes on and that there will be some fireworks.
Definitely the fight goes on, and there will continue to be lots of fireworks [blogspot.com].
Re: (Score:1)
Wow, those are some fireworks! Just make sure we can see them all across the country. I'm really enjoying your letter. It's hilarious and very compelling reading to anyone with half a brain, let's hope the judge agrees (Assuming the RIAA can find the right one to get their motion rejected by).
--The FNP
Re: (Score:3, Funny)
Wow, those are some fireworks! Just make sure we can see them all across the country. I'm really enjoying your letter. It's hilarious and very compelling reading to anyone with half a brain, let's hope the judge agrees...
Thanks. But I can't really take the credit. The RIAA's lawyers are the ones feeding me my material.
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Wow I saw MS in the URL and assumed it was about Microsoft.
Good (Score:5, Insightful)
Re:Good (Score:4, Insightful)
What is amazing is this part:
Shouldn't she have taken a look at the illegality of RIAA's tactics like way, way back when RIAA first requested a motion for discovery? The fact that some students brought this illegality to attention long after the first case of what became routine is rather disturbing.
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Better late than never!
the rubber stamp wore out? (Score:3, Insightful)
Oh quit laughing, it could happen!
Re: (Score:2)
sed to the rescue. I wish I could have a sed machine to fix peoples' words before they leave their mouth.
Discovery, Discovery, Discovery (Score:3, Funny)
In all cases before this court, the undersigned has allowed plaintiffs' expedited motion for discovery.
Open source file sharing of all files, containing both copyrighted and uncopyrighted content, is Constitutionally mandated on Legal Discovery Process grounds. We all have just as much of a right as any trade organization, as any ISP, or as any government to analyze all content ever created to search for copyright infringements. We can all legally enlist all paid and voluntary help whatsoever in this endeavor.
If defendants are charged with copyright infringement, they have the right to argue and exhibit evidence that invalidates the original copyright claims themselves, such as showing prior art, or overlapping use of content which is the copyright ownership of secondary parties. This can only be accomplished by copying and manually (or automatically in hash recognition programs) inspecting the files. Prohibiting defendants and secondary claimants from gathering evidence is a violation of their due process and legal discovery rights. Thus, cease and desist and take down notices for any and all files shared on the internet are violations of due process and discovery rights for First, Second, and Third Parties. Result, P2P file sharing is absolutely necessary, and inhibiting the free flow of information (for non commercial non profit legal discovery evidence purposes) is wholly unconstitutional.
What's next? The Courts rule that handwriting expert testimony cannot be introduced as evidence in a court because it violates the copyrights of the person who wrote the words?
Thus I have Discovered that P2P open source file sharing is absolutely necessary for the protection of copyrights. Yeah, I'm just that good. Please notify me immediately if you find this post in any torrent files such as for example a file which was theoretically named everything_ever_made_by_Walt_Disney.tor so that I may undertake appropriate legal actions to defend myself. I also humbly request infinite deputized voluntary intern help in vetting every data bit available on the internet for the purposes of determining that no copyright violations regarding my content are being wrongfully claimed or distributed. I will also likewise be glad to reciprocate in helping to determine that none of your copyrighted stuff is also illegally contained in files. Thank you for your assistance, and welcome to your first day as an intern in Open Source Legal Discovery Inc. ^_^
May your file sharing Legal Discovery Searches, be fruitful. And yes, you can put OSLDI Intern on your resume.
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The parody rules allow me to go with the great riff you set up:
Discovery, Discovery, Discovery, Discovery! Come on!!!!
Another reason... (Score:2)
I believe the judge is catching on that the RIAA is just using the courts. Most times they probably are just fishing and/or have bad data so they don't find the right people. The rest of the time they are using their lawsuit assembly-line operation to extort money from people and they don't intend to bring court cases. If not for extorting money, then s
Hammer Time! (Score:2)
That Big Hammer is starting to come down on their little empire that they have established, and I don't think there will be any survivors once the courts get done with them. RIAA has done little to adhere to the laws of the land and it has come time to pay the collector for their misdeeds.
I want front row, center seats when the judgment comes down on them, destroying their careers.
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Will ATCA make this redundant? (Score:1, Insightful)
Since the first slashdot story on ATCA (http://tech.slashdot.org/article.pl?sid=08/07/01/135216&from=rss)
it would seem that maybe someone behind the curtains at *AA understands there could be problems in the courts and is approaching this from a different angle - ie. get the law changed.
If and when that happens in favour of the *AA, will cases like this matter or continue to be of any real significance or interest?