Thursday, May 10, 2007

RIAA Claims its Case is "Not Frivolous" in Elektra v. Schwartz

In its letter to the Magistrate in Elektra v. Schwartz, which was supposed to consist of referrals to reading matter, the RIAA submitted a lengthy argument to the effect that its case against Ms. Schwartz is "not frivolous":

May 9, 2007, Letter of Richard J. Guida (Submitting Reading Materials for Guardian Ad Litem)*
May 10, 2007, Letter of Ray Beckerman Moving to Strike Letter of Richard J. Guida*
May 10, 2007, Order Denying Motion to Strike Guida May 10th Letter*

* Document published online at Internet Law & Regulation

Keywords: digital copyright online download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs

20 comments:

Mike said...

From their own letter:
"identifying any relevant materials, other than those included in the court filings"

After reading this, it almost sounds like Mr. Guida handed off the writing of the letter to an aide with no instructions and then never bothered to read the results, just signed and sent it. The level of incompetence is truly mind boggling sometimes.

And since we know lawyers read this site... any and all comments above are expressions of my personal opinion.

Igor said...

I think the funniest line from the RIAA is "In response to Defendant's unverified assertions that she is not responsible..."

Apparently the civil legal system in this country now requires the accused to prove innocence and not the other way around...

AMD FanBoi said...

Plaintiffs certainly have a one-track mind. I wonder if their attorney mutters this mantra in his sleep every night, given how well he seems able to repeat the same story time after time.

"It's all the Defendant's fault for not performing our investigation for us and throwing someone else under the bus. This is why we should be allowed to sue you, and make you prove yourself innocent -- instead of the other way around."

Alter_Fritz said...

OMG, either this RIAA lawyer is an incompetent I*beep*t and should be disbared (sp?) or he is very clever and is speculating that Judge Levy is!

Judge Levy's order was written in clear simple to understand english words. (I could, which would be proof for that fact alone, but Guida made clear he did understand it too by citing this order in the first paragraph)

And yet he violates this order blatantly

To bad it wasn't my job to issue this order and !
Now I would have -after a request for judicial notice only of course- taken a good look into Judge West's detailed order texts that mentions RIAA lawyers behaviour and would deal with this Guida accordingly.

Those RIAA guys seems to have come to the same conclusion like those commenters on this "rate your judge" internetpage (*) where it says that Judge Levy is on one hand a fair judge, but on the other hand not consequent when it comes to enforcing orders/deadlines.

Dear Judge Levy, In case you read this: I urge you not to allow those plaintiffs to -figuratively spoken- spit on one of your orders again.

(*) http://www.therobingroom.com/Judge.aspx?ID=1510#comments

Ray Beckerman said...

Dear Alter_Fritz,

Sorry to disappoint you but Judge Levy has once again
permitted plaintiffs to spit upon one of his orders
.

AMD FanBoi said...

Judge Levy's denial of the motion to strike (5/10) has convinced me I would never wish to personally appear before this judge on any matter. This is, IMHO, starting to look like the circus that Judge Ito presided over in the O. J. Simpson case.

Interested Observer said...

You only need to "google" the judges name to find his background is in "Human Rights" and "Mental Health" not IP or technology. Is it part of the judiciaries "on-the-job" training?

I wonder what he would do if someone applied for sanctions for someone not following one of his orders.

Ray Beckerman said...

Sorry, Alter_Fritz, I rejected your last comment. I understand your frustration because this is at least the 4th time that Judge Levy has failed to enforce his own order:

1. RIAA ordered to produce discovery relating to its employees' use of p2p file sharing; fails to do so; Judge does not enforce order. (Lindor)

2. RIAA ordered to produce principals of each of the plaintiffs to attend settlement conference; fails to do so; Judge does not enforce order. (Goldshteyn)

3. RIAA ordered to produce all relevant documents on wholesale download prices; fails to do so; Judge does not enforce order. (Lindor)

4. RIAA ordered to provide letter identifying reading materials for GAL; instead of transmittal letter, it sends lengthy argument to which defendant has no opportunity to respond; Judge does not enforce order. (Schwartz)

I have been frustrated by other rulings as well. E.g.,

1. Refusal to permit us to cross examine MediaSentry as to contracts under which it was retained;

2. Refusal to permit discovery into collusion between plaintiffs;

3. Refusal to preclude plaintiffs from adding on songs as to which they have no song files, even though they testified that they need the song files in order to verify the evidence.

I just thought that some of your comments were not in good form for a respectable intellectual property law blog.

Igor said...

Ray, but aren't all the things you list very good grounds to appeal on?

Ray Beckerman said...

I had to reject a few more comments, folks.

Please calm down.

I am a lawyer.

This is a legal blog.

We have to keep things professional.

Igor, usually the only appeals allowed in federal court are after the case is lost. We're not going to lose this case. The RIAA has no case.

jbrooks said...

Ray,

Don't you mean Elektra Entertainment Group Inc, Interscope Records, UMG Recordings Inc, Sony BMG Music Entertainment, BMG Music, and Artista Records have no case?

Ray Beckerman said...

Since I've had to reject 4 comments from valued contributors of this blog, I think this might be an appropriate time for a refresher course on this blog's comment polices. Here they are in total:


Comment policy:
1.no comment spam
2.no profanity
3.no RIAA trolls masquerading as something else (if RIAA PR flacks present themselves for who they are, they are welcome to participate)
4.no unsupported accusations
5.no defamation
6.no threats
7.no unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults; I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them; lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society)
8.nothing to detract from the dignity of "Recording Industry vs. The People" as a forum for the discussion of very important issues.

Ray Beckerman said...

Thanks for naming some more of the culprits.

Ray Beckerman said...

Repeat:

7.no unsupported anti-lawyer or anti-judge insults (if you know of something specific that a lawyer or judge did, with which you disagree, and you want to comment fairly upon it fine, but I don't want people here denigrating the legal profession with undocumented insults; I think that is a tactic used by RIAA trolls and some other big corporations who are trying to discourage ordinary people from talking to lawyers and learning about their legal rights, or from going to court to fight for their rights, thinking the system is stacked against them; lawyers and judges are the cornerstone of the rule of law, which is the cornerstone of our democracy, and they are the closest thing we have to an equalizer in our society)

Ray Beckerman said...

I gather there is a lot of frustration here with the rulings of Magistrate Judge Levy. As you know I share that frustration with you. Magistrate Judge Levy no doubt knows I am frustrated with his rulings as well. Magistrate Judge Levy is apparently frustrated with me as well; he recently denied my request to strike within about 5 minutes of my having submitted it... the fastest turnaround I have ever seen.

This blog will accept comments on the judge's rulings.

It will not accept negative comments on the character of this fine man unless you have evidence to support them beyond his having made rulings which are erroneous.

A judge has to make hundreds of decisions every day, and he has to try to see both sides' point of view; every judge is going to make mistakes.

AMD FanBoi said...

Fine man the Judge Levy might be, one man should not be permitted to dictate the entire judicial interpretation of Copyright law in this new, and very untested, area for the entire district encompassed by this court.

And by extension, the entire country, since judges give such great weight and deference to prior decisions by other judges.

Ray Beckerman said...

I repeat:

7.no unsupported ... anti-judge insults ...

Interested Observer said...

IANAL, my understanding is that a magistrate judge assists a district court judge in the administration of the cases assigned. Is there a way to get a district court judge to overturn or modify a magistrate judge's ruling/orders?

Ray Beckerman said...

Dear interested observer,

Yes one can file objections to a Magistrate's rulings, which brings them up for review by the District Judge.

jupiter said...

Given the discussion here about lack of enforcement by Judge Levy, I was surprised to find a report by his wife, Family Court Judge Susan R. Larabee, on this very subject. It is entitled:

ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COUNCIL ON JUDICIAL ADMINISTRATION REPORT ON PRELIMINARY CONFERENCE ORDERS IN NEW YORK STATE COURTS
June, 2005

and it can be found here:

www.abcny.org/pdf/report/943896-v2-Report.pdf

Quotes from the report:

A PC Order, reflecting the stipulations of counsel and any directions given by the court is prepared and executed by counsel (often on forms specifically provided for that purpose), "so ordered" by the court and duly entered. As an Order of the court, it is entitled to all of the weight and dignity of any other Order. In practice, it seems, it is just a piece of paper. Its time limits often are ignored, repeated Preliminary Conferences are held, new PC Orders are entered, and deadlines are reset and then extended. Not only does this waste the time of counsel and squander judicial resources, it undermines the integrity of the judicial system. See Kihl v. Pfeffer,94 N.Y. 2d118,123 (1999) ("If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity.").

Judges Must Enforce Their Orders
Judges should exercise more control over the process early in the action, and need to take firmer action to enforce PC Orders and disclosure schedules.