The Judges' Journal, the quarterly publication of the Judicial Division of the American Bar Association, invited the author of this blog to write an article for its "Equal Access to Justice" edition.
I of course accepted the invitation, and submitted an article, entitled "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations". In it I describe the RIAA litigation process and the challenge it represents to our adversarial system of justice, and make 15 hopefully constructive suggestions as to how the Courts can help to level the playing field in these cases.
The article has now been published, and is available in the current edition of The Judges' Journal.
The ABA has graciously granted permission to reprint the article, for the benefit of those who are not recipients of The Judges' Journal.
Without further ado, here it is:
Beckerman, Ray, "Large Recording Companies vs. The Defenseless : Some Common Sense Solutions to the Challenges of the RIAA Litigations", The Judges Journal, American Bar Association, Summer 2008 Edition (Reprinted by Permission of the copyright owner, The American Bar Association) (PDF)
HTML version
[Ed. note. Thanks to a friend of our blog, who wishes to remain anonymous, for supplying me with the HTML version. -R.B.]
Commentary & discussion:
Wired
Slashdot
p2pnet.net
Daily Nonsense
Privacy Digest
Excess Copyright
Slyck
The Inquirer
El Blog de Enrique Dans (Spanish)
TechDirt
rocknerd
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
22 comments:
Whoa! Now that's some high-profile attention. Awesome.
Thank's Ray,
and tell the "ABA Judges Journal"-guys also thanks from me for granting you the right to put the digital version online. :-)
P.S.
now "we" would like a good readable reprint of the other article with the cool photo of yours(*) too.
(*) http://beckermanlegal.com/yahoo_site_admin/assets/images/first_2_pages_Page_2.18055718_std.jpg
Digg it here: http://digg.com/world_news/Anti_RIAA_Attorney_s_Article_In_Prestigious_Judges_Journal
Great article Ray. A true gem. And it is written in a way a commoner like me can understand. Hopefully your suggestions will take hold.
Truly inspiring article, Ray. Thanks so much for making it so clear! Anyone can understand this and should be able to see right through the RIAA's pitiful and downright mean approach.
How long before this article becomes one of the John Doe submissions to educate the judge and overturn the ex-parte subpoena to the ISP from the very beginning?
Also...
Suggestion 16: Where the Plaintiffs have examined a Defendant's hard drive which contains many pieces of personal, private, potentially embarrassing files, as well as files unrelated to the Defendant(s) in the current case, any and all evidence not related to the question of the existence of file-sharing software and/or infringing music files (e.g. homework, resumes, e-mails, photographs, personal journals, or anything else) the court should treat any release of any such unrelated information with the immediate preclusion of all evidence obtained from the hard drive, immediate destructions of all image copies of the hard drive and any documentation extracted from it in the Plaintiff's possession, and the most severe sanctions it can impose on the Plaintiff's lawyers.
{The Apologetic Common Man Speaking}
Has it occurred to anyone that "RIAA Richard", being a judge in Colorado, may be a member of the Judicial Division, and a subscriber, and may be reading my article as we speak?
Note to self - keep a copy of the pdf in my "shared folder".
-xox
If we were on Slashdot I'd mod anonymous xox's comment as "+5 Hilarious".
Ray,
Loved your article. It seemed pretty balanced and focused on issues of law that could make the RIAA lawsuits more fair and balanced between the Plaintiffs and the Defendants. These various proceedings should be focused not on winning a lawsuit (gamesmanship for either side) but instead on getting to the truth.
In these cases its seems that its almost always the gamesmanship that wins and not a balanced finding of law and not a revealing of the truth of what really occurred.
My only question regarding your article is that because of the fairly obvious and excessive procedural abuses by the RIAA, the article comes off a bit as advocacy for the cases and defendants you represent. Does this mean that the judges involved in them would have to avoid reading the article or run up against the ban on ex parte communications?
I really don't know. Am I just being overcautious, is this really an issue?
I would claim that any association between an IP address and an individual is arbitrary and ephemeral. An IP address does not lead to an individual, only to a subscriber account which may be shared by many unrelated individuals. It should therefore be impossible to take any legal action against an IP address or an account subscriber. This is one more article that can be called upon in defense of such a position.
The obvious result is for any act, routing it through the Internet, be it murder for hire, fraud, theft, or merely copyright infringement, results in a complete inability to prosecute anyone. The Internet is truely a consequences-free zone.
Or do you have a different suggestion Mr. Beckerman?
Awesome read Ray. Thanks!
Interesting and well written. However I am puzzled by Suggestion #12. It sounds like you would require plaintiffs to prove their case before discovery. Is not the whole purpose of discovery to allow plaintiffs access to critical information which may be necessary to prove their case?
P Crowley,
The internet is not a consequences free zone. No more that the world is a consequence free zone. Think of an IP address as analogous to the return address on an envelope. It may be telling but it isn't proof.
Great Article. I would thank the American Bar Association to allow it to be reprinted on this blog. You bring up some excellent points on the RIAA litigation and gave some good suggestions for other judges and laywers to follow.
@Dean
I guess you misread #12
I don't think as if Ray wanted to say that plaintiffs "prove their case before discovery".
What I read is that Ray would like that the Plaintiffs show that they even have a case at all against the defendant they sued in the first place.
Of course I could be wrong since I'm not even american so what do I know about your law anyway, but as I understand your civil litigation and suing practice for every other plaintiffs that is not Evil4 it is normal to already have a basic case against defendant once they file suit. And then in the suit discovery phase get exhibits that prove to what exact extend or under what circumstances the case happend that the plaintiffs have established against defendant before they engaged in litigation and ultimately sued the party.
What evil4 plaintiffs are doing is light years away from that established modus operandi in civil litigation! Simply using the discovery phase to look for someone suitable to sue in the first place.
You know how their lawyers are always saying when they misused the courts again against a defendant that should have not been one; "We are only interested in suing the responsible party", yet they don't do their investigative work to only sue the responsible party in the first place!
They sue everybody and their last dog (as long as it has no harvard connections that is) since it is cheaper to file stuff in bulk; ("get 200 JonDoe suits for the prize of one filing fee! Limited offer!! Only valid this week and as long as judges don't enforce the rules. Hurry up, law clerks are standing by to take your papers!!").
And then they expect the judges to sort it out who of those accused belongs into their courtrooms.
And since Plaintiffs are not even so fond of having judges a say who is "guilty" or who is not, they even like to use their "automated payment website system" that was set up and signed responsible for (in the whois records in the beginning after setup) by the law firm of HRO instead of the court system like every other civilised litigant normaly does!
And because of that behaviour of Plaintiffs, Ray suggested that the judges should grant SJ motions by defendants if Plaintiffs have not shown that defendant is direct infringer or induced someone else to be an infringer.
Total normal logical suggestion and it should not even be one necessary to mention at all if the plaintiffs would observe the FRCP's and other applicable stuff in the first place when they walk into those courtrooms of the judges -that hopefully have read that very eyeopening and informative article by Ray Beckerman right before their clerk put the "Evil4 vs. ISPbillpayer" papers on those judges desks.
Commentary & Discussion:
http://torrentfreak.com/copyright-lawyer-exposes-riaa-legal-bullying-080730/
A_F
I'd like to put Ray's article out on the net for everyone to read, but the title, "080729LargeRecordingCompanies vsTheDefenseless.pdf" is way too long.
Since it's an article that is certain to be a hit with the ABA, can I just shorten the title to "ABBA Hits.mp3" ?
Dear stephen
Do not dare.
We'll sue ya!
very truely yours
"well-known and respected record companies"
SCNR
Commentary and discussion:
http://www.theinquirer.net/gb/inquirer/news/2008/07/30/judges-warned-riaa-antics
A_F
One typo: the website listed for future reference is misspelled as "growklaw.net", when I'm imaging you're referring to "groklaw.net".
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