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RIAA Doesn't Like Independent Experts 258

Posted by ScuttleMonkey
from the pirates-are-everywhere dept.
Krishna Dagli writes to tell us Ars Technica is looking at the latest in the comedy of errors that is the RIAA's crusade against supposed pirates. From the article: "As one might expect, Arellanes isn't too keen on the idea of sending her hard drive (PDF) to an RIAA star chamber for examination. Citing the RIAA's numerous missteps in its ill-conceived crusade against music fans, she requests that the court require a "neutral computer forensics expert and a protocol protective of non-relevant and privileged information" be used to conduct the examination."
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RIAA Doesn't Like Independent Experts

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  • by Sycraft-fu (314770) on Monday September 04, 2006 @07:31AM (#16037055)
    They get away with it because it's a civil dispute. In a civil case it's not your vs the government and the standard isn't beyond a reasonable doubt. Civil court is just for two parties to hash out a dispute.

    Like let's say you are renting a place from me. I claim you've done damage and thus owe me money, you claim you don't. We can't settle it so I sue you for the cash. We then argue it in civil court. So the one that wins will be whoever provides more convincing proof. Doesn't have to be beyond a reasonable doubt, I just have to argue a bit more convincingly than you and I can win, at least a partial judgement.

    Also, there's no real burden for filing a civil suit. You just go to the courthouse and do it. I don't have to present evidence or anything, I just file a suit against you and you have to respond. So that's how the RIAA gets these cases to trial.

    Now in terms of proof, well that's why they drop any case that people actually start fighting. They don't have any good proof. However you don't have to have good evidence to file a case, just to win it.

    The problem arises out of the fact that it's unbalanced. Since it's not the government going after you, there's no right to a lawyer for civil court. In person to person cases, it rarely matters, it's usually just small claims court and lawyers don't enter the picture. That's what you see on things like Judge Judy and such, that's small claims court. Because of the statutory amounts involved with copyright violations, it's not small claims. So you have one side with resources and lawyers, the other just being some person with no special assets.

    Thus it's no surprise most people settle. Responsible or not (civil court determines responsibility, not guilt) it's an expensive proposition, so people take the settlement offer. It's not cheap, but you'd pay that much in legal fees anyhow.

    The good news is in at least one case that someone fought back, the judge awarded her legal fees, even though the RIAA dropped the complaint. However, you can't rely on that. It's up to the judge.

    That's the whole reason this goes on is because it's all civil law. This is perhaps the best example I've yet seen for the need for tort reform. Our civil system was designed so that people had easy access for remedies in disputes. Unfortunately it's being abused by those with resources to bully people to doing what they want.

    So if you want a chance to put a stop to this one of the biggest things you can do, other than refusing to buy RIAA music and encouraging others to do the same (they can blame it on copyright infringement if they want, doesn't matter if their member labes get no money, they go out of business) is to encourage your representatives to get behind tort reform, and to support any that do. When people hear tort reform they think about medical malpractice lawsuits. While that's certainly an issue these shotgun lawsuits are another part of it.

    It is actually something that we can get changed. People on /. love to get all cynical and say only money talks. They are right that having money gets you congress' ear like we normal people can't, however votes talk waaay more than anything else. The RIAA members can toss all the money they like a representative, if that rep believes they will be voted out for supporting them, they won't.
  • Link to the PDF??? (Score:1, Informative)

    by Anonymous Coward on Monday September 04, 2006 @07:32AM (#16037058)
    The article is quoted like this:
    "As one might expect, Arellanes isn't too keen (PDF) on the idea of...
    Where is the link to the PDF file [ilrweb.com]? If the link is not supposed to be included, then why is there a "(PDF)" in the quoted text?
  • by herbiesdad (909590) on Monday September 04, 2006 @07:56AM (#16037116)
    To my non-US friends. The RIAA and MPAA are non-governmental, private industry groups. They have nothing to do with the US government, nor do they take direction from the US government. Those groups are formed and run by companies in the entertainment industry. There are no penalties imposed by these industry groups directly; they act only through the US court system, and pursue strictly civil matters (i.e. there is no opportunity for prison time). Outside of the court system they have no direct power. Where someone is suspected of large-scale distribution of copyrighted material, these groups might refer that person to various criminal prosecutors. These are government entities, but it is their discretion alone whether to pursue the wrongdoing and file charges. I hope this clarifies some things; there appears to be some confusion about this on /.
  • by James_Duncan8181 (588316) on Monday September 04, 2006 @08:50AM (#16037255) Homepage
    No. It would mean that the information in those messages could not be discussed in court, and possibly that the expert witness who stated he had seen them would be reclused, depending on the mood of the judge. This is not legal advice.
  • Misleading Article (Score:4, Informative)

    by WebHostingGuy (825421) * on Monday September 04, 2006 @08:52AM (#16037261) Homepage Journal
    This entire article is misleading. The article is trying to make out the RIAA for being bad for having their expert witness examine the evidence and not allowing anyone else to do this. This is BS.

    The way expert witnesses work is that each side always gets to have their own expert witness examine the facts of the case. One expert witness for the plaintiff and another for the defendant. And not surprisingly, the plaintiff pays for and chooses their expert witness while the defendant does the same. Then in court each expert witness presents their findings.

    You don't have a situation where the RIAA pays for and has to use only the defendant's choosing in an expert witness. That's because the defendant could just pick an expert which will say what the defendant wants.

    All rules of evidence allow an expert witness of the own parties choosing. If there is confidential information then what the Judge will do is just issue a protective order noting that information cannot be used in the suit or released.
  • by lovebyte (81275) * <lovebyte2000@@@gmail...com> on Monday September 04, 2006 @09:23AM (#16037370) Homepage
    And as far as innocent until proven guilty, I thought French law didn't have that concept?
    tout homme étant présumé innocent jusqu'à ce qu'il ait été déclaré coupable (26th august 1789).
    You might not know it, but the French, by law, must also eat their first child!
  • by j35ter (895427) on Monday September 04, 2006 @09:34AM (#16037404)
    3) Get off your fucking high horse. Are there disturbing things happening in the US? Yes. Are there in your part of the world too? You betcha. I don't know what country you are from and really, it doesn't matter. Wherever it is, I guarantee there's some scary big brother stuff that some people are pushing. Hell, some of it you may already have and are just used to it, you might even think it's normal whereas it'd scare me. Either way this "I'm scared to go to the US," is an attitude that screams ignorance.

    When my wife (who was a resident of the U.S.) decided to give birth to our daughter in a U.S. clinic, I applied for a visa so I could attend the birth of my first child. Everything was set for the trip, and even though I worked in Austria at that time, had a lot of cash on my account, I was not issues a visa out of concerns that I might not leave the U.S. Oh, btw. I am a Croatian citizen.
    Quite a few Americans I talked to were comparing their democracy to the Romans or the Greek. There is one similarity they quite likely missed: The Greek and Roman treated non-citizens barbaric. Regardless of what you think, your gvt. treats non-US-citizens like shit
  • by MartinB (51897) on Monday September 04, 2006 @09:44AM (#16037444) Homepage
    Holding people without charge for years,

    28 days is the current limit, although the government wanted 90 days.

    shooting unarmed civilians or searching people for [...] being Asian is fine, of course, and a necessary response to terrorism.

    Replace Asian with Irish and that was the case for a *long* time. Travelling in possession of an Irish Accent was a defacto offence throughout the 70s and 80s, which is why the treatment meted out at airports these days is making me absolutely furious, having had enough friends and relatives who were on the receiving end of this.

  • by twitter (104583) on Monday September 04, 2006 @10:54AM (#16037759) Homepage Journal

    bullying witnesses into perjury! How many times has this happened? What did they say to perjure themselves?

    It only has to happen once to put the stink on your organization. If you follow the links you find RIAA representatives threatening a teen to make her lie in court. If you follow the other link where the RIAA tried to bully their media partners into ignoring due process, you find another outrageous violation. When you look at the big picture you see an organization that has bought a lot of crappy laws and then abused them beyond their limits so that they can threaten a lot of innocent people with ruin. The whole thing reeks of abuse.

    The US Constitution established copyright to promote the usefull arts. What the RIAA is doing has little to do with that.

  • by falconwolf (725481) <falconsoaring_2000&yahoo,com> on Monday September 04, 2006 @12:06PM (#16038215)

    It seems that every other week I am reading about another flaw in the RIAA's legal cases. Now it seems that anybody who wants to fight and starts getting close to winning has the RIAA cancel the case. Will there come a time when enough people (or their lawyers) get educated as to the ways to win/stop the cases that the RIAA will start using different means of oppression? Am I right in thinking that in the US, the RIAA does not have to pay the court costs for the loser if they withdraw the charges?

    In general the defendant has to pay their lawyer fees though sometimes the EFF, ACLU, or another group will have a lawyer represent the defendant. I think I heard once where an industry group was made to pay an legal costs when they lost a case but I'm not sure. What I'd suggest is when one of these groups looses either they are made to pay immediately or a counter lawsuit is slapped on them to recover the costs. Maybe a law can be enacted that requires the looser to pay all costs. But where will the line be placed? For instance almost ten years ago I was hit by a moving van while riding my bike and while I was in a coma my family hired an attourney. While he worked on a contingency basis, ie he received 1/3 of whatever he won, what if he had lost and my family had to pay not just his bill but the defendants as well, along with my medical expenses which were more than $100,000? My family wouldn't of been able to risk the chance of suing, loosing, and ending up with a hugh bill they'd never be able to pay. Luckily, or not, the insurnace company who insured the company the guy who hit me worked for decided to settle before the case went to trial. But I can see where requiring the loser to pay all legal costs would prevent someone who is injured, whether medically and physically or financially, from filing a lawsuit against those who caused the harm.

    Falcon
  • supporting democracy (Score:3, Informative)

    by falconwolf (725481) <falconsoaring_2000&yahoo,com> on Monday September 04, 2006 @01:05PM (#16038571)

    hear hear. The US has been spreading democracy since WWII (before, too, just not as well marketed). We've had some great successes! I mean, just think of the democratic governments we've replaced with dictators in such culturally diverse locations as the Philippines, Nicaragua, San Salvador...

    You left out Chile, where under Gen Pinochet thousands were killed and tens of thousands simply "disappeared". And East Timor [wikipedia.org] where after Indonesia invaded with the support of the US 200,000 were murdered. That was 1/3 of East Timor's population. Then again now Australia is stealing the oil resources in the Timor Gap in Timorese waters. That's billions of dollars the Timorese can use to rebuild their country after it was ransacked.

    Falcon
  • As some readers have pointed out, the PDF file cited is the wrong one. It was one of the papers in the Motown v. Nelson [riaalawsuits.us] case, in Michigan, where a 15 year old witness testified to the RIAA lawyer's attempting to get her to say things that weren't so. The SONY v. Arellanes documents are here [riaalawsuits.us] and the documents served by Ms. Arellanes objecting to the RIAA's insistence on their own expert are here [ilrweb.com], here [ilrweb.com], and here [ilrweb.com].

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