Friday, November 16, 2007

Judge Orders RIAA to Show Cause Why Ex Parte Discovery Order Against GWU Students Should not be Vacated, in Arista v. Does 1-19

In Arista v. Does 1-19, the District of Columbia case, being handled by Matthew Oppenheim personally, which targets students at George Washington University, the Court -- after reading the motion to quash filed by John Doe #3 -- has on its own initiative issued an Order to Show Cause ordering the plaintiffs to show cause, on or before November 29th:

-why the defendant's motion should not be granted; and

-why the Court's ruling should not be applicable to all of the other John Does.

November 15, 2007, Order to Show Cause*

* Document published online at Internet Law & Regulation

Commentary & discussion:

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24 comments:

Ray Beckerman said...

Any thoughts on whether I should permit "Anonymous" posters?

Ray Beckerman said...

Any thoughts on whether I should permit "Anonymous" posts of comments?

I prefer when someone uses a user ID, so we have at least a virtual identity.

But if you feel I should leave it open to "Anonymous" posts I will.

Hell said...

If you aren't getting a lot of fake posts or spam I don't see a harm in it. Some people might have interesting information to post but would rather not register a user name.

skeeter said...

I vote for user ID. It tends to lead to more responsible comments. The issues brought up here are very serious, especially to the thousands of people caught up in this litigation nightmare. Love your blog Ray. One of the few I read religiously.

Jadeic said...

I have no objection to to Anonymous posts if they are on topic, meet your comment policies and contribute to the debate. Let's face it, even most of us with 'names' that contribute are hiding behind the anonymity of 'Profile Not Available'. I've just checked mine and I'm the same so must rectify that situation.

Jadeic said...

Rectified

Ray Beckerman said...

Thanks, hell, skeeter, and jadeic.

I continue to be on the fence about it.

Actually the Anonymous comments I've been getting have been responsible and contributed meaningfully to the discussion.

I would feel more comfortable knowing if they come from one person or from several persons, and from which persons.

I'll continue to keep an open mind on the subject until I've heard from more of our non-anonymous regular members.

DreadWingKnight said...


Actually the Anonymous comments I've been getting have been responsible and contributed meaningfully to the discussion.


As long as this continues I don't see any reason to reject them.

Anonymous said...

Given that you moderate every post already anyway,

Given that any online identity can be whatever a user decides to call him/herself,

Given that obviously some people prefer to post anonymously,

Given that blogs are being sued (infomercialscams.com) to uncover their posters, you're dealing with one of the most litigious groups in America at the moment, and anonymity may provide an extra layer of protection against the RIAA hounds - especially for anyone who posts under that same user name on any other blogs,

Given that one of the fundamental issues about these very suits is the right to remain anonymous in the Internet itself,

Given that privacy on the Internet is barely an illusion anyway,

Given that you're not saying that you have to reject hundreds of anonymous posts every day now,

Given that Capchas are an absolute Pain in the Posterior to deal with,

Why is this a problem?

Anonymous said...

...and given that I might not contribute otherwise...

Anonymous said...

Now to the topic at hand, the RIAA seems to have finally run into a judge who questions their approach. While he appears to admit initially he rather let this one slide (due to the wonderful advantage that the RIAA enjoyed by appearing ex parte no doubt), now that questions have been raised by the other side he is viewing this very seriously.

If there was ever an incident that demonstrates why the RIAA must not be allowed to continue pursuing these suits ex parte, I have to believe this is it!

AMD FanBoi said...

Although I haven't posted of late, rather because I got tired of overstepping Ray's very necessary posting guidlines, I haven't stopped reading.

If it were me, I would allow anonymous posters. Truth is, the RIAA would likely wish to shut down this blog, and sue everyone who contributed to it. Why help them out with this?

Ray Beckerman said...

Alright, let me ask this:

What if there are more than 1 person posting under "anonymous" (which there of course are). How am I supposed to know which one you are?

Could you put some kind of "handle" in your posts?

I think our comment section has been very collegial and constructive. I've seen it said elsewhere on the internet that the comments are the best part of this blog. I'd like to keep it that way, and build upon it.

Anonymous said...

Expect the RIAA to show up with its usual overwhelming blizzard of paper that seeks to impress by size, volume, and weight, rather than substance.

Anonymous said...

I think the best approach comes from Bruce Schneier's blog (http://www.schneier.com/blog/):

"Real names aren't required, but please give us something to call you. Conversations among several people called "Anonymous" get too confusing."

Perhaps you could change the anonymous posting form to include an entry field for a nickname/handle.

With moderation, I don't see much benefit in prohibiting anonymous posting unless the moderation burden from the anonymous posters becomes too high.

--scottij

Ray Beckerman said...

Thank you scottj.........


You've hit it on the head!!!


"Real names aren't required, but please give us something to call you. Conversations among several people called "Anonymous" get too confusing."

Joe said...

When I first read this post, I thought

"-why the Court's ruling should not be applicable to all of the other John Does."

was referring to all the other cases. Having gone over the document, I noticed that the judge was referring to the other John Does within this case as the response was filed by one of the Does. (I guess I was too optimistic when I first glanced at the post, but this is still a good sign!) As my understanding of American law is very limited, how far reaching could the judge's decision be if he decides that the reasons the RIAA gives are not sufficient to deny the defendant's motion? Would it affect any of the other cases going on right now or would it not have much of an affect as John Doe #3's arguments seem to be quite different from most of the others I've looked at?

Shun said...

First of all, I would like to thank John Doe #3. Dear John Doe #3: Thank you for standing up for your rights and the rights of free people everywhere. Your words and courageous action will not be forgotten by the People of the United States of America. The day you filed your Motion to Quash with the D.C. Circuit Court may have marked a turning point in the RIAA/MPAA's war against their own customers. I believe I speak for independent-minded people everywhere when I say, "Thank You, John Doe #3."

Moving on:

@joe: Judge's name is COLLEEN KOLLAR-KOTELLY, so she is a she. This applies in D.C. Circuit, only, although she cites the Interscope case, which took place in Eastern District of Virginia. Apparently, District Court (Federal, lowest level) judges are not indifferent to the actions of other District Courts.

I expect this decision to have reverberations throughout the Federal Court System.

There are 2 caveats that I must point out.

1) Arista has until November 29th to respond.

2) John Does (the students) have until December 13th to answer.

So, assuming the Motion to Quash is not granted, defendants must comply (somewhat) with the discovery order.

I expect replies ranging from the Bart Simpson Defense ("I didn't do it") to the Chewbacca Defense ("Wookie who lives on Endor") and everything in between.

Indeed, I would use the Obi-Wan Kenobi Defense: "These are not the droids [file-sharers] that you are looking for."

Anonymous said...

@Joe

I don't believe that the ruling would directly affect any other cases, although I know that it is common to use examples of other cases when building your own case in American courts. Often when you look over the documents you'll see something along the lines of "As you can see in case such-and-such the verdict was this based on these facts, and here is how it applies to the case today." When a law has some hard to understand parts the best way to make a verdict is to see how it worked in the past, and so if this guy wins it will be an example to other judges that the RIAA don't have a proper case.

IANAL so there's probably plenty of other people here who can tell you more, and probably do a better job than me.

-Ix

Anonymous said...

Colleen Kollar-Kotelly is quite a famous judge, at least in tech circles. Seldom do we even recognize the names of judges, lest they are famous for presiding over the O.J. Simpson trial, or the like. However, Colleen Kollar-Kotelly's name should be familiar to many who follow technology trial issues, and her opinions have been well respected.

I view this as:

1: She has a significant understanding of technology issues and the law, which is likely not to the RIAA's benefit.

2: Her rulings, in either direction, on this issue will carry significant weight with other judges.

I hope that she will view the law as written, and not as the RIAA wishes it to be. There may be insufficient law yet in their area of Internet transactions, however, that doesn't mean that the RIAA is therefore allowed to go ahead and make up their own rules to fill the void.

Joe said...

Thanks for the clarification.

@Shun: Ya, I didn't take a good look at the Judge's name, and typed he out of reflex. Thanks for the heads up on that, I just looked up information on her on google and it seems we have quite an interesting judge here.

And to clarify my question a bit, I understand that new defenses will probably be based on this current defense if it goes well, but what I was asking was more along the lines of whether the other judges, who are presiding over the other cases that are already in court, would have their decisions affected by the results of this one and if there needs to be some sort of action on the defense's part before that happens.

Hyp said...

For shame! Big music won't be reporting big profits for much longer!

Russell said...

I agree, Colleen Kollar-Kotelly is a significant judge who has a clue on technical and privacy cases.

I have no idea how she will rule, but she won't be BS'd (is there a Latin term I should use?).

I suggest everyone read her wikipedia entry to get an idea.

Anonymous said...

@Joe

The defense in other cases would probably have to bring up the result of this case on their own. The RIAA is not likely to bring it up unless they can BS their way through this and confuse the judge enough to win (not at all likely). Also as far as I know this could only affect cases that are still going on as opposed to ones where the discovery/list of names+IPs has already happened. Basically the defense needs to get the verdict of this and bring it to the judges attention on their own to have it affect the outcome of the case unless the judge is actively paying attention to the case on his/her own.

Even if the RIAA does get shot down in this court it still won't stop them from pulling this crap since the defense will need to find out about the ex parte trial and bring this defense up every time, and the RIAA listens to court orders only when it benefits them (so the judge telling them to stop won't stop them). They were already told not to file these mass John/Jane Doe cases in New York I believe and we can see how much they've listened to that order.

-Ix