In Atlantic Recording v. Raleigh, a St. Louis, Missouri, case, the Court has granted the RIAA's motion to compel further interrogatory answers, and agreed that the RIAA should be entitled to an award of attorneys fees.
December 15, 2008, Order granting motion to compel further interrogatory responses and attorneys fees
[Ed. note. The awarding of attorneys fees would be a bit much. Considering the economic imbalance that already exists, that would be quite chilling. I hope the Court reconsiders that. -R.B.]
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Thursday, December 18, 2008
Court grants RIAA motion to compel discovery and for attorneys fees in Atlantic Recording v. Raleigh
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11 comments:
The RIAA Guide to Fishing
1) Cast the biggest net you have.
2) When you catch too many fish, blame the water.
I don't see any evidence that the defendant's responses were made in bad faith. I don't even see any evidence that the defendant's responses are factually incorrect. I've never lived in a sorority house. I suspect neither Mr. Joyce, Mr. Wald, nor Mr. Ryan, plaintiffs' attorneys, have lived in one either.
I love how the RIAA is not claiming that the Defendand didn't respond, but basically the responses don't make they case for them. If they are calling the Defendant directly where is their Attorney? Why wasn't the lack of attorney taken into account when judging the quality of the response?
What, you didn't pull background searches with SSN and credit card balances for all 119 sorority members?
What, you didn't dig your 4 year old, discarded, system out of the trash for us to take for investigation?
You honor, we can't work like this, they should have to pay us as well as provide us with all the information to make our case.
The judge appears to be have a issue with her listing 119 names. My understand from my student workers is it is not uncommon in their fraternities and sororities houses not to have locks on their bed rooms doors and for people to come and go out of their rooms. In fact the reason I'm aware of this is because they grip at work quite often about someone in their house taking and using their stuff without telling them.
ray, do you have the exact wording of the interogatories?
While I do understand the judges concern about gamesmanship on behlf of defendant, I guess it is important to bring to her awereness that plaintiffs are msters of gamesmanship, and if No 5. is ambiguessly(sp?) worded I would say the number 119 is correct!
Even the judge herself writes one time that plaintiffs wanted to know about the "sharing of a room" and then some sentences later when she explains what she orders now she uses the description of "her Roommate(s)".
maybe it is me and my obsession with clarity about description and/or my lag of english vocabulary, but I DO see there an important difference depending how the interogatory was worded!
We all know how well versed Plaintiffs are in gaming the system!
And there is absolutely an important difference between those two kinds of description.
The kitchen for example is "shared" by defendant with more people then for example the closetroom in her apartment room.
And did plaintiffs for example asked if the Computer in question was located for example in a public space in the house, or was it located in the beforementioned closetspace that was regulary locked and only she might have had a key for!
While the judge calls defendants answer clever by half I thing (without having seen so far the actuall wordings of the interogatories!) that the judge is giving the question of plaintiffs to many allowance of ambiguaty.
Given what we here at RIvsTP know from all the documented cases I#m willing to bet that, if defendant had answered only with maybe 2 or 3 persons with which she had a bed in the same sleeping room standing, that then sometimes later plaintiffs had written to the court that she willfully mislead them as too who else might have had access to the computer since i guess that is what plaintiffs are actually interested in, and not who slept in a bed next to hers!
So, while feeling somewhat empathic with the reasoning and the wording of the judge, I too think that ordering defendant to pay for THIS motion this time is not just!
Had defendant answered differently with only 2-3 "bedfellows" instead of "roommates/persons she shared a room with" Plaintiffs would have asked also to compel her to say something different and/or with more specific infos.
Because THAT is the gamesmanship by PLAINTIFFS lawyers(!)that the regular readers of the infos that Mr. Beckerman provide here are used too.
Lets hope someone points the judge in that case to this blog here too, so she will get the background infos about the general modus operandi and behaviour of Plaintiffs too, and then reconsiders her ruling that defendant should pay this time!
I guess it brings up a few interesting questions..
What is reasonable? spending even 10-15 minutes per name to try and find approximate age, current phone number, and/or address? I would say that's a conservative estimate considering that many will probably have married or moved away. At 2 hours a day, 5 days a week, that's 2 and a half weeks of work.
Of course it would take a few hours if the defendant had deep pockets and/or a room full of paralegals to do the work.
The other question in my mind is if 119 people had access to my computer how much work must the defendant do to rank or differentiate who had access and when... 4 years ago!
Of course it's a rhetorical question since no matter what the defendant hag given them it would have been inadequate or improper in some way.
Many more crass decisions like this and your whole legal system will implode.
Dave
"...will implode."
I think that it is a foregone conclusion in the public eye now how one sided these actions are. The fact that the judge has made the decision to reimburse the RIAA for expenses now is glaring evidence of the deep inequities within what is left of our own legal system.
And it calls to mind the history lesson learned from the celebrated "Boston Tea Party". Those that taxed to excess did not realize or care about the wrath they brought upon themselves then till it was too late. History is about to repeat itself with heroes and villains. My hope is that balance is restored, common sense will return, and true justice will prevail.
Oldphart in Kansas
It's bad enough that the RIAA has 12 lawyers for every 1 lawyer defendants can get. If everytime you lose a motion, you have to pay effectively /double/. Especially when you're faced with an obviously biased, judge.
Reading the Judge's order, made me want to smack her.
In this man's eyes, unless the RIAA plaintiffs are able to prove beyond reasonable doubt that the defendant had the answers at the time and intentionally withheld them - not that she might have been able to find out the answers through diligent effort on her own part, but already knew them or where to locate them with little effort - then the judge is so far out of line here that she should be impeached.
I don't believe that the RIAA plaintiffs have been able to make such a showing yet and are expecting, as already elucidated above, this defendant to make their entire case for them. And that is not, to this man's understanding, the defendant's job or duty.
This decision needs to be overturned.
{The Common Man Speaking}
Other reports say they won't actually give up on suing, making it sound like they intend to stop suing en masse (while reserving the option).
Ray, if subscribers are unfairly disconnected due to incorrect RIAA reports of infringement, what can they do? Most ISPs have a clause allowing them to disconnect you at their sole discretion, though I question whether that part could be overturned as unconscionable, and it seems like there might be a viable (but very difficult) claim for tortuous interference with a contract. But that's an uphill battle for someone who would almost certainly face counter-claims of infringement.
I just hope that you or someone like you is there to lead the legal (and PR) charge against them when they find slimy new tactics to avoid facing people fairly in court.
Heck, even the captcha knows this, and gives me "unchi" as the word. I believe that's the Japanese word for "poop." It almost, but not quite, expresses how I feel about the RIAA lawyers.
IDBIIP:
That's not the Japanese word for that, though it is close.
The first thing that will happen if ISPs disconnect accounts based on mere claims of copyright infringement is that customers will stop using those ISPs. I've heard of ISPs having idiotic accused-therefore-disconnect policies, but only university ISPs. Do you know of others?
XYZZY
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