Wednesday, February 06, 2008

RIAA opposes EFF motion for leave to file amicus brief, cites "Recording Industry vs. The People"

In Arista v. Does 1-21, the case in which the RIAA is targeting Boston University students, it has filed a brief opposing the Electronic Frontier's Foundation request for leave to file an amicus curiae brief.

The 'opposition' brief inaccurately refers to Ray Beckerman as an EFF attorney, even though the RIAA's attorneys know that Ray Beckerman is a private practitioner who is a partner at Vandenberg & Feliu, LLP, in Manhattan. The brief then cites an older quote from "Recording Industry vs. The People", one which hasn't appeared on its pages for months, which refers to the RIAA as "a cartel of multinational corporations [that] collude to abuse our judicial system, distort copyright law, and frighten ordinary working people and their children.", but falsely represents that the brief's author "last consulted" the blog on Feb. 5, 2008. [Ed. note. While we appreciate Mr. Gabriel's citation to our humble law blog, he should not have lied, and it is hard to see what any of the foregoing had to do with the motion that is before the Court. -R.B.]


RIAA brief in opposition to EFF motion for leave to file amicus curiae brief*

* Document published online at Internet Law & Regulation

Commentary & discussion:

p2pnet.net






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






26 comments:

steve said...

So if the RIAA is citing you for the statement about their coercive abuses of the legal system, does that mean they're stipulating that fact?

And, I'm in Oregon, so I have no idea what your bar discipline is like in New York or Boston. But out here on the west coast, when an attorney puts known lies in a signed brief and then submits it to the court, that's likely Rule 11 sanctions plus an involuntary vacation from the practice of law.

Russell said...

That didn't take long for the response.

Got to love the language "Massive infringement".

File sharing may be massive but this case isn't. Which of course is the problem with the RIAA campaign. All of their cases together don't have a demonstrable effect on the rate of file sharing. The only purpose of the campaign is intimidation of non parties. And that is a demonstrable failure.

It is akin to the death penalty. Sux to be you if found guilty but doesn't affect anyones else's behavior.

I don't know about most of the legal arguments (timeliness seems valid) but the argument about 'neutral' parties seems off base. I doubt anyone thinks the ACLU is 'neutral' in a death penalty case. It seems to me that 'neutral' simply means that the party does not benefit or suffer harm by the decision. And in that case the EFF is neutral.

Scott said...

If this blog is cited in a brief, does it increase the likelihood that the judge will read RIVTP? Maybe you should send Richard Gabriel a thank-you note. :)

Ben said...

One has to wonder about the advisability of the RIAA suggesting the judge in such a case to come here and see this kind of information.

It would be nice if on the part of this blog an amicus brief could be filed in sole opposition to the motion to dismiss making the blog even more prevalent in the case. :-)
While I'm sure it has no legal germaneness, hardly anything that happens here makes any sense anyway.

Anonymous said...

Like this is a surprise?

XK-E

Anonymous said...

This Doe suit seeks to address massive copyright infringement that Plaintiffs have no reason to believe has stopped during the pendency of this action.

Ah, yes. The old "continuous and ongoing without a shred of proof argument".

You know, if any of this file-sharing is still happening, then it is virtually CERTAIN that the RIAA is SUING THE WRONG PEOPLE YET AGAIN! Anybody actually served with a lawsuit, or warning of a lawsuit, in a case like this has likely already ripped their computer from the wall, run it through a shredder, and buried the remains in the deepest landfill during the dead of night, regardless of their guilt, or not. It sure would be nice FOR ONCE if the RIAA actually had to back up their so freely thrown around accusations.

This case has already been delayed since June and allowing EFF’s amicus brief would simply cause further delay.

Oh, we can't have that. Too much delay and the truth might actually come out. Expedited Discovery. Expedited Discovery. We must have Expedited Discovery, or we'll all die (or something like that).

Both parties in this matter are represented by competent and experienced counsel, who are very familiar with the issues presented by this case.

Oh, you mean there's an equal footing here between the RIAA and their thousands of cases and billions of dollars in revenue backing them up, and this Defense lawyer and a college student? What's that phrase? Oh, right! That requires a Coleridgian “suspension of disbelief” to accept.

Indeed, one of EFF attorneys, Ray Beckerman, operates a blog on the Internet called “Recording Industry vs. The
People” which, by way of example accuse Plaintiffs of acting as “a cartel of multinational corporations [that] collude to abuse our judicial system, distort copyright law, and frighten ordinary working people and their children.”


Oh, the truth hurts?

(“Defendant’s First Amendment right to remain anonymous must give way to plaintiffs’ right to use the judicial process to pursue what appear to be meritorious copyright infringement claims.”);

Ah, if only these claims WERE meritorious. If only they WERE supported by copyright law. Such is the turning point of a suit like this one.

XK-E

bbsux said...

Ray,
How do you go about correcting "RIAA Richard"? Can you file a statement or something with the court pointing out that:

1) you do not work for the EFF
2) This is an obvious attempt to color opinions of the court against Does (since RIAA Richard is actually trying cases opposite you he KNOWs you are not with the EFF)
3) This may be considered libel, because while briefs and pleading s you "link" to may state the statement they list ("a cartel of multinational corporations [that] collude to abuse our judicial system, distort copyright law, and frighten ordinary working people and their children.") You have written no such thing outside of pleadings and such before a court, (that I know of) on your blog.
4) Could this be a rule violation (11? IANAL)? Stating a falsehood that he KNOWS is false?

Anonymous said...

Steve,

Since the RIAA has submitted some amount of boilerplate in Oregon recently, can we only hope that they'll be run-out of your very fine state now?

XK-E

Ray Beckerman said...

1. steve, I would expect the courts to catch up with Mr. Gabriel one of these days for his constant lies.

2. scott, yes I think the Judge would read something that has been cited to her. I'm not interested in sending Mr. Gabriel any thank-you notes, in view of all the harm he's doing to very good people on a daily basis.

3. ben, I think it was inadvisable. But then again everything they do is inadvisable.

4. XK-E, I don't publish only "surprises"; I just publish the information, even that which is predictable or anticipated. However, I am always surprised when Mr. Gabriel lies to a Court, no matter how many times he does it, because of the fact that he is -- on paper -- a lawyer.

5. bbsux, it is not libel, because it would not be insulting to me (and I hope it's not insulting to EFF) to falsely say RB is an EFF lawyer. But it definitely is a Rule 11 violation, and sanctionable.

Ray Beckerman said...

By the way, on the subject of Rule 11, bear in mind that at present there is a Magistrate's recommendation pending at the moment in Arista v. Does 1-27 that the RIAA lawyers be ordered to show cause why they should not be sanctioned under Rule 11 for lying about the grounds for joinder.

Albert said...

In the first section, one of their points given as a reason not to allow the brief is "...neither party to this litigation consented to EFF’s filing of the amicus brief in question."

Of course, since all the Defendants are "John Does" and have not therefore been served with the complaint or this motion, how can the Plaintiffs really say how the Defendants feel about filing of the brief.

I think they should be forced to correct this statement to say "None of the PLAINTIFFS have given permission", which is closer to the truth.

Maybe this statement should be added to the Rule 11 lie list....

Albert

Ray Beckerman said...

steve, XK-E is right....They have submitted a whole bunch of lies in Arista v. Does 1-17. Let's hope you're right about the courts in Oregon.

Ray Beckerman said...

Albert, excellent point. None of the defendants other than the moving party even knows about the pendency of the motion.

bbsux said...

Ray,
So could you submit a "brief" or something advising the court of the Rule 11 violation?

Ray Beckerman said...

And, bbsux..... you want me to discuss that with you here, where Richard Gabriel and Matthew Oppenheim can read about it?

Alter_Fritz said...

EFF is not an neutral amici providing dispassionate guidance on copyright issues. Both it, and its clients, have a vested interest in the outcome of this and similar litigation.

OK, if neutrality and dispassionation (sp?) is a requirement to allow a court that a non-party gives it some broader picture about the issues at hand, courts must throw out ALL briefs from the MPAA in RIAA cases and vise versa since they are not neutral and we all know how passionate they are about a pro corporate/contra society copyright regime they are.

Traditionally, the role of amici has been to act as a friend of the court, providing guidance
on questions of law. The function of an amicus brief is to serve for the Court’s benefit in
assisting the Court in cases of general public interest[...]


This description in my opinion hits it on its head what EFF wants to do for this judges benefit.

[...]neither party requires the additional assistance of an amicus.

Nancy, amicus wants to help the judge understanding the broader issues, they don't want to be assistens for your clients or the student.
"Friend of the court", not a friend of "well-known and respected record companies" nor friend of "massive copyrightinfringers"! Don't you speak latin, Nancy?

Even the most generous time limits in the Federal Rules of Civil Procedure do not allow a party to wait eight months before filing a supporting or opposition brief.

Didn't you yourself said EFF is not a party just a few sentences ago? (no, wait, you will cite a ruling that Amicus are not a party a few sentences below that one of yours)
Very -very short- short-time memory I guess if you contradict the validity of your own statements in such a short timespan. you might want to have that checked by a neurologist for first signs of Alzheimer! (I'm serious here.)

Then follows a few more diaptribe-like rantings against the EFF and an IMO very objectively observed behaviourdecription ([...] sham "copyright infringement" lawsuits brought by four large record companies to abuse the American judicial system, distort copyright law, and frighten ordinary working people and their children.) which i'm to lazy now to comment on one by one.


If you are so upset that EFF wants to help this judge to understand the broader issues of the stuff that your "© and ™"-clients want to archive, then why don't you ask the MPAA or the BSA to come as friends of the court to help the judge to understand the broader issues that lay behind copyrightinfringement, softwarepiracy ect.? ...

... No wait, you yourself argued that guys who are not neutral and dispassionate should not be allowed to be courts friends. To bad then! :-(


--
P.S. @ Ray in all fairness, you should point out in your ed op that while it was likely Lance (I guess he gets upset when someone calls him Lance instead of his first first name or "Rich" like he signs his mails) that drafted this thingy and that he as the "Nationale Führeranwalt der Kläger" has the oversigt over everthing those low level local counsels file , but that a Nancy whatsoever signed it! (I was addressing RIAA-Richard already in my piece below until I reached the bottom of that letter and saw that it wasn't officially done by him and I needed to to do a find and replace Rich for Nancy over my text.
If you don't clarify your ed op, they can argue their old -and back then already wrong- line about "full of inaccuracies. Just my worry.
A_F

Ray Beckerman said...

I know how they work. Whoever signed it, Richard Gabriel read it and approved it, and probably wrote it.

bbsux said...

Ray,
Of course, you're right. Guess thats one reason I'm not a lawyer...

Ray Beckerman said...

I can think of lots of reasons not to be a lawyer.

The fact that the courts haven't yet thrown these phonies out of court, after 4 years of frivolous sham litigation, is one of them.

Art said...

As mentioned above "Defendant chose not to consent" is an outright lie. When was the defendant given a chance to consent? The EFF brief is supportive of the defendant so it's unlikely that defendant would object to EFF's amicus status.

There is no FRCP governing amicus briefs, so there is no basis for calling it untimely. Also, it is the judge's sole and broad discretion whether to accept it.

EFF raises issues not properly before the court? Give me a break! "Distribution right issues" are the core of plaintiffs complaint. "First amendment" is mentioned by EFF in discussing applicable law for revealing an anonymous person's identity, which is the main purpose of the plaintiffs subpoena.

There is no requirement that an amicus brief must come from a neutral, disinterested, dispassionate 3rd party (if there is such a thing). In fact, I'd say that an amicus party having a vested interest in the case can increase the relevancy of the brief.

It's laughable to suggest that having two EFF lawyers on the MGM vs Grokster case preclude the EFF from filing an amicus brief on any other copyright related cases. One can see here that the RIAA and all of the plaintiffs in this case (except Maverick) were parties to MGM vs Grokster. Does that mean that their point of view should be excluded as well?

Courts have rejected EFF's position? First, courts don't rule on the legal arguments of amicus briefs, because they are supplemental "educational" material used by the court. Courts rule on whether to allow amicus briefs. If the plaintiffs are unaware of EFF amicus briefs being allowed, they should have spent more time reading Ray's blog, or for example this order in which EFF's amicus brief was allowed.

The quote from Sony vs Does 1-40 appears to me to be lifted from RIAA's own boilerplate language. Here is Judge Chin's actual order. Notice that Judge Chin allowed EFF's amicus brief, and ruled that P2P file sharing can be considered free speech to a degree. Using the assumption that all P2P users are copyright infringers, using a pre-Twombly (see Bell Atlantic vs Twombly) pleading standard, taking first amendment principles into consideration, and relying heavily on an assumption of a minimal expectation of privacy, Judge Chin ruled that the case for infringement was good enough to override the defendants' right to anonymous speech. In the instant case, a University is the target of the subpoena, not a commercial ISP, so FERPA would eliminate any question of waiver of expectations of privacy. I'd also suggest his assumptions on P2P users' motivations with respect to free speech are unfounded. Also, his ruling is from 2004, so it is without the experience of seeing the damage caused by RIAA's sham litigation "campaign of terror" over these many years.

Given all of this, there is absolutely no reason for the judge to grant plaintiff's motion in the instant case.

Regards,
Art

Timothy Durnan said...

EFF regularly takes legal positions in these cases that defy all logic.

*boggle*

Pot? Kettle?

Art said...

"I can think of lots of reasons not to be a lawyer."- Ray Beckerman

I, for one, am glad such reasons hadn't occurred to you when you decided to enter law school.

:-),
Art

Anonymous said...

It is interesting that the RIAA would cite MGM v Grokster as proof EFF comes with vested interest. A look over at the amici filed suggest that perhaps the court SHOULD consider the EFF brief. In that case, a number of organizations filed briefs that were accepted, and the vast majority of them had extremely vested financial interest (Baseball, ASCAP, NARAS, NAB, AFM, to name a few). The EFF brief here presents a different point of view not offered in the other legal arguments, and EFF is not a party in the instant case - which seems to make perfect sense to consider an amicus brief.

The EFF makes a timeliness argument as well, which is "backdated." For example, the defendants supplemental motion discusses the Court's request at a Jan. 28th hearing for " authority against plaintiffs’ position that
intentionally storing a legal, i.e., licensed, music file at a location on a computer such as a
“share” folder connected to the Internet where plaintiffs’ agent, MediaSentry, was able to find it
and download it, is an infringement of the copyright owner’s exclusive distribution right under
17 U.S.C. § 106(3)" Assuming that to be true, this EFF motion filed mere days later on Feb. 4th is extremely timely. Certainly one can always pick some time in the past which would make the present untimely.

What's more, the RIAA motion makes an ad hominem attack on Ray, who is not an EFF attorney. Perhaps the fact that they are a cartel of corporations after all? I'd move for Rule 11 sanctions for all of the misrepresentations in their legal documents. But then again, I'm no lawyer.

Q

Anonymous said...

Also, if Nancy Cremins and John Bauer had actually READ the site which they cite, they would see this: We are lawyers in New York City, practicing at Vandenberg & Feliu, LLP. We established this site to collect and share information about the wave of sham "copyright infringement" lawsuits brought by four large record companies to abuse the American judicial system, distort copyright law, and frighten ordinary working people and their children. Which is prominently displayed on the front page.

Anonymous said...

My favorite part is when they bring up US v Schaffer where criminal distribution of child pr0n was determined based upon the files being in Schaffer's KaZaA shared folder. I somehow doubt that distribution means the same thing in Schaffer as in copyright law, and I DOUBT that the producer(s) of the child pr0n were suing for "massive infringement." This seems to be just another attempt to link criminal law distribution, and intent to distribute with copyright infringement.

Of course, I'm not a lawyer.

W

Anonymous said...

W,

Since mere possession of child p0rn is illegal, and under entirely different criminal statutes, that alone makes that case vastly different than this one.

-Dodge Magnum