Thursday, January 29, 2009

Default judgments continue to roll in, in Boston

For those of you who may think that District Judge Gertner has finally recognized that the RIAA's cases are not based on sufficient evidence, sound legal theory, or proper pleading, I would just want to let you know that she continues to enter default judgments, based on the RIAA's written submissions.

I have never reported on default judgments, and do not intend to start doing it now, but if anyone wants to check for themselves, they can go to Capitol Records v. Alaujan, D. Mass., 03-11661, which is the consolidated case for all of Massachusetts, and see for themselves.

It is mind boggling to me that a Judge, after learning that the Massachusetts State Police have preliminarily determined that the evidence upon which the RIAA's cases rest was obtained illegally, would enter judgments based on that evidence without even conducting a hearing. It is likewise mind boggling to me that any judge would accept a default judgment application based on (a) evidence that would be inadmissible in court, and (b) a cookie cutter pleading which patently fails the test of Bell Atlantic v. Twombly.

Needless to say, I am of the view that District Judge Janet Bond Arterton (D. Conn.) got it right in Atlantic Recording v. Brennan, and former District Judge Rudi M. Brewster (S.D. California) got it right in Interscope Records v. Rodriguez, when they held that the RIAA's default judgment applications are improper, and rejected them.

Commentary & discussion:

p2pnet.net




Keywords: lawyer 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 portable music player

21 comments:

Copyrights & Campaigns said...

Ray --

Your post seems to assume that if evidence is "obtained illegally," it is therefore inadmissible. Do you have authority for that in the federal civil context (i.e., is there a civil equivalent to the criminal exclusionary rule)?

I admit I have never looked at this question in the federal context. I did once research it under California law and was a bit surprised to learn that there was NO civil equivalent to the criminal exclusionary rule, and that evidence was not rendered inadmissible by having been obtained illegally.

(For the record, I do not agree with you that the labels actually did obtain evidence illegally.)

Ray Beckerman said...

Ben, if you're going to act as the record companies' point man or running dog here you're going to have to follow the rules of engagement:

1. don't start telling me what I "assumed" and then attacking it... if you're going to attack what I said, attack what I said, not what you think I assumed

2. don't ask me for legal authority except on points I have already litigated in publicly filed documents... i am not a professional journalist, i am a professional litigator, and don't intend to provide you and your pals with advance copies of my arguments

Thanks

Copyrights & Campaigns said...

Ray, I'm not "attacking" anyone. I asked an honest question on what I think is an interesting legal issue. You wrote:

"It is mind boggling to me that a Judge, after learning that the Massachusetts State Police have preliminarily determined that the evidence upon which the RIAA's cases rest was obtained illegally, would enter judgments based on that evidence without even conducting a hearing."

I took that to mean that you believe that illegally obtained evidence should not form the basis of a judgment. If you did not mean that, then I stand corrected. But if you did not, then I'm unclear what is the relevance of your point about allegedly illegally obtained evidence.

I am hardly asking you to provide any of your secret legal strategies. I was simply asking whether there is precedent for what I understood your public statement on your blog to be saying. Obviously, you're under no obligation to provide it if you choose not to (or if it doesn't exist), but it's hardly a crime to ask the question.

As for whether the labels' attorneys are my "pals," it's hardly true that I agree with them all the time. In fact, today I disagreed with them very publicly:

http://www.eff.org/press/archives/2009/01/28

Signing on to a brief opposing them is a strange way of showing that I am their "point man" or "running dog."

Best,

Ben Sheffner

Ray Beckerman said...

As a professional litigation attorney, (a) I choose my words carefully, and (b) I don't disclose my arguments in advance.

I feel you are a point man for the content cartel. Just because you publicly disagree with their present attorneys on a non-substantive, procedural issue -- the televising of a hearing -- doesn't mean anything. It might be an indication that you are hoping for some legal business of your own from that cartel, trying to show that you know better than their attorneys what is best for them.

Copyrights & Campaigns said...

While I have absolutely no inside information on this, I strongly suspect that the decision to oppose the webcast in the Tenenbaum case was not treated as some minor "non-substantive, procedural issue," left solely to the attorneys. I'm willing to bet that the clients themselves had quite a bit to say about this.

Your Machiavellian explanation for my signing on to the EFF brief is pretty amusing. But the boring truth is that, as a former journalist, current blogger, and attorney who has litigated on behalf of cameras in the courtroom for a major news organization, I have long believed that federal proceedings should be televised. The Tenenbaum case was simply a good opportunity to put my beliefs into action.

Ray Beckerman said...

In any event, it is clear that you agree with RIAA's legally and factually bankrupt campaign of extortion by sham litigation.

Copyrights & Campaigns said...

I have never tried to hide that I support the labels' lawsuits (if not in every particular). I had just hoped that we might be able to have a friendly discussion about an interesting legal issue, even if we disagree about the lawsuits as a whole. But apparently disagreeing with you means that I support factual bankruptcy, extortion, and sham litigation. Hard to see how a productive discussion flows from that, but it's your blog, and you make the rules...

Ray Beckerman said...

Sorry, I don't find sophistry "interesting".

Particularly sophistry which emanates from the crassest of commercial motives, which pretends disinterest, and which ruins real peoples' lives.

You'll have to find one of your "copyleft" friends to indulge you.

Anonymous said...

Question.... Has the Record Labels ever tried to collect or try to enforce any portions of these default judgements they are getting? Are they willing to throw good money after bad?

Ray Beckerman said...

Anecdotally, I think they've recovered very little from the default judgments.

Ray Beckerman said...

Let me put it this way: as with every other part of the campaign, the only people who benefitted from the default judgments are the RIAA's lawyers.

Anonymous said...

Copyrights & Campaigns: Are you serious?

- If MediaSentry broke the law obtaining information for the RIAA and the RIAA payed them to do it, certainly MediaSentry would face legal charges were the case to unfold normally.

- If the RIAA hired MediaSentry to commit illegal acts, that puts the RIAA in a bind too.

Surely under the law the RIAA ought not benefit from paying MediaSentry to illegally obtain information (assuming it was illegal, of course).

-- Sarah

Anonymous said...

yeah that makes allot of sense in these cases with the RIAA lawyers only being the ones benefiting. In cases where the accused has nothing to loose, then it appears that it would be better to just default and not give time, energy, or money to these people.

Can't get blood out of a rock :-)

Shane said...

" Copyrights & Campaigns said...

I have never tried to hide that I support the labels' lawsuits (if not in every particular). "


Ahem, it is the **particulars** that you so blithely dismiss that matter. Little things, like (IMO):

*basing the entire 35,000+ lawsuit cookie factory litigation campaign **soley** upon investigations made by an unlicensed private investigator--which is patently illegal in many if not most states.

*repeated and patently improper joinder of unrelated defendants, in spite of a standing cort order prohibiting the same.

*repeated sham john doe lawsuits, which are subsequently voluntarily dismissed, to use the subpoena power of the courts to gain discovery for purposes of sending extortionate demand letters which contain false statements of fact, such as that the plaintiffs have all the necessary evidence to prevail at trial.

*False testimony, claiming to have detected an "individual" when, in fact, their unlicensed investigator has done no such thing, as their own "expert" witness has testified to.

The list of inexcusable "particulars" is seemingly endless and **is** the point.

So, oh newly minted blogger who claims to want to be a "reasonable" voice in favor of the industry position can you point us to where you have castigated the RIAA on any substantive particulars? Otherwise, please stop bothering to pretend you have any real interest in "reasonableness" vis-a-vis in the the RIAA's pursuit of its interests.

Copyrights & Campaigns said...

For anyone actually interested in the original question I asked -- is illegally obtained evidence admissible in a civil case? -- I recommend this article:

http://www.allbusiness.com/legal/1056884-1.html

The article begins by stating the rule: "Traditionally, courts have admitted evidence in civil cases without regard for the manner by which it was obtained by the proponent."

In other words, the general rule in the US is that the fact that evidence was obtained illegally does *not* render it inadmissible in civil litigation. (Of course the rule is different in criminal law, where the exclusionary rule (with exceptions) bars the introduction of illegally obtained evidence.)

Shane said...

Hey, Ben, I'm still interested in hearing some examples of where you have castigated the RIAA for substantive issues.

You said, "I have never tried to hide that I support the labels' lawsuits (if not in every particular). Ben, the objections to the RIAA lawsuits are objections to the vast and egregious **particulars** of how the RIAA has prosecuted this campaign. So, what are the substantive particulars you disagree with? And where have you posted those disagreements on your newly minted copyright maximalist blog? And unlike Ray, you supposedly aren't an attorney involved current litigation other than your amicus, so you can speak freely, so please do tell...

Shane said...

"In other words, the general rule in the US is that the fact that evidence was obtained illegally does *not* render it inadmissible in civil litigation"

You, of course, ignore that illegal investigators are unlikely to present themselves for direct testimony in states where they may be prosecuted for illegal investigations. That you would defend a cookie cutter factory litigation campaign of 35,000 plus lawsuits based on the **sole** testimony of unlicensed private investigators shows a willingness to turn a blind eye to what is massive nationwide campaign of knowing corporate law breaking of possibly unprecedented proportions, a professional courtesy you grant because the illegality is in furtherance of your goals, in my opinion. And you do this on Ray's blog in an apparent attempt to bait him into giving away his legal strategy. I'm not sure that you are an improvement over the existing council, who's job you seem to be vying for.

Alter_Fritz said...

Shane, don't be too harsh to Ben here!

He worked for television/film companies as counsel!

It seems clear that he has therefor adopted their warped logic that was expressed in the MPAA amicus elsewhere that in effect is "We need no stinking proof".

So that Mr. Sheffner does not take issue when "organised content" (just like organised crime) does not care about following even the laws they themself payed for a few years back, you should not hold that against him.
He so extremely believes those criminal(?) wrongdoing committing organised content guys and their lawyers are in the "right" in this "war" that he perceives critics about his own behaviour/his standpoint in this "war" as "engage[ing]in name-calling, and nasty, personal attacks".

So I still think and be reassured by his "Mr. Bart like" reaction that we better just continue to ignore him in the future.

Anonymous said...

"the general rule in the US is that the fact that evidence was obtained illegally does *not* render it inadmissible in civil litigation"

Two problems with your argument:

1) You're ignoring the fact that the judge is not simply admitting the evidence, but using it as the SOLE basis for a DEFAULT ruling. Admitting illegally obtained evidence at trial, along with discrediting information on how it was obtained, may serve justice in some situations. That doesn't fly in this or any case where it serves as the sole basis for a default judgment, under any circumstances that this layperson can imagine.

2) The illegally obtained evidence is not sufficient to sustain the claims made by the RIAA regardless of how it was obtained.

lost in thought

Shane said...

"2) The illegally obtained evidence is not sufficient to sustain the claims made by the RIAA regardless of how it was obtained."

Especially that. We have only the **word** of the unlicensed investigators that the information is true. We are to believe that "screen shots" and "original" text files that are suspiciously named by the defendant's name, when they had no such information when the alleged file sharing was allegedly detected and the "original" files created, are true and accurate. And the process by which this alleged evidence is gathered is a closely guarded "trade secret," with no chain of custody, so much so that the RIAA generally refuses to say when an alleged act of copyright infringement occurred, instead baseless claiming that it is ongoing, when they have no evidence to that effect. The fact that the investigation was carried out by unlicensed investigators, willing to break the laws of multiple states to line their pockets with RIAA commissions, is rather injurious to their credibility, reducing it down to a level of reliability on par with "jail house snitch," IMO.

I'm still waiting for Ben to get back to us to share examples of where he has disagreed with the RIAA on substantive issues (the "particulars") in his blog...

(Oh, I know Ray has said Ben is just trolling, but I feel certain that Ray would let Ben post proof of his disagreement with the substantive particulars of the RIAA's tactics...but I'm also rather sure that Ben has no such examples to share, seeing as how he is nothing more than content industry minion. I wonder if his blogging time is calculated in billable hours? Perhaps not, but the end result is the same.

Ray Beckerman said...

Shane, don't hold your breath.

But you are correct that I have not blackballed him. I am just applying my comment policies to his submissions. No baloney here.