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RIAA Says It Doesn't Have Enough Evidence 208

NewYorkCountryLawyer writes "In Elektra v. Wilke, the Chicago RIAA case in which defendant Paul Wilke has moved for summary judgment, the RIAA has responded to the summary judgment motion by filing a motion for 'expedited discovery', alleging that it needs expedited pretrial discovery because it does not have sufficient evidence to withstand Mr. Wilke's motion. The RIAA's lawyer said: 'Plaintiffs cannot at this time, without an opportunity for full discovery present by affidavit facts essential to justify their opposition to Defendant's motion.' The motion and supporting affidavit are available online."
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RIAA Says It Doesn't Have Enough Evidence

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  • Makes sense (Score:5, Insightful)

    by Anonymous Coward on Sunday September 10, 2006 @07:33AM (#16075103)
    Since almost everyone just settles *cough*extortion*cough*, they rarely have to prove anything.
  • ah-ha (Score:3, Insightful)

    by Anonymous Coward on Sunday September 10, 2006 @07:35AM (#16075109)
    no evidence ... how interesting. hollow people, hollow lawsuits. finally exposed!
    • Evidence (Score:5, Insightful)

      by nurb432 ( 527695 ) on Sunday September 10, 2006 @08:35AM (#16075198) Homepage Journal
      Not exactly.

      They have enough evidence to start proceedings, but not enough to prove guilt. So they ask for more with the discovery. This is also seen in other types of cases, so its not unheard of.

      The discovery might even entail impounding his entire home, and all his assets for 'review'. A good 'threat' to cause him to settle out of court like everyone else has. Does he have the balls for it? The RIAA has nothing to lose by a war of attrition. He does. ( we all do )
      • by postbigbang ( 761081 ) on Sunday September 10, 2006 @08:43AM (#16075218)
        It also means that their supporting tort wasn't very strong, and might set precedent to require greater revelation in the tort to support their accusation before messing with both the court and the defendent(s).

        It's a smelly, scummy sort of ambulance chaser that doesn't have his/her ducks in a row before they baste some poor person in oil and fry them before the bench.

        This bodes badly for whatever hacks the RIAA has employed to enforce their ex-foreclosure bar-bells. I doubt they're embarrassed, as it is impossible to embarrass sociopaths.

        Now mod me down for troll-- or be enlightened and understand that the poster actually got some most interesting and relevant information: the RIAA's enforcers are starting to sputter.
      • by schon ( 31600 )
        They have enough evidence to start proceedings

        Which is to say "none".

        You know that line you see in legal filings "On information and belief..." It means they have no evidence.

        You're not supposed to start proceedings if you have no evidence, but there's nothing stopping you if you really don't.

        Just look at the SCOX vs IBM lawsuit.
      • but my first reaction was "Huh?"

        Summary judgement is appropriate where any disagreement about the nature of the facts in a case is insufficient to overrule the legal standing. In short, summary judgement is like saying "Your honor, even if everything they say is true, the law is still on my side."

        I suppose it is too much to hope that a Real Lawyer(TM) will explain this to us....
        • Re:IANAL (Score:5, Informative)

          by ari_j ( 90255 ) on Sunday September 10, 2006 @02:14PM (#16076604)

          Summary judgment is appropriate when there is (to quote nearly every summary judgment motion and order ever drafted) "no material fact in dispute." It's slightly different from a demurrer or, in modern parlance, motion to dismiss (typically called a "12(b)(6)" because of the Federal Rule of Civil Procedure by that number which provides for it), which is where every fact in the plaintiff's complaint is assumed to be true and still does not state a cause of action upon which relief can be granted.

          In summary judgment, the court can look at affidavits filed by the parties, deposition testimony, interrogatories, and other evidence made available to it through the discovery process and determine whether any material fact is in dispute. A material fact is one that changes the outcome of the matter. For instance, the parties in a libel case may dispute whether the remark was printed in the New York Times or in New Yorker Magazine, but if all the evidence available shows that there is no dispute as to the truth of the remark, then where it printed is immaterial to the case. You can't just go claiming that there are disputed facts unless those disputed facts matter.

          Summary judgment can, interestingly, be granted to either party in a lawsuit. The plaintiff can get summary judgment, too, although it is less common to see that happen. (Defense lawyers are paid to find material facts in dispute.)

          Another note: the reason that summary judgment works is because judges make decisions of law and juries make decisions of fact. If there is no material fact in dispute, then there is no reason to bring a jury in to make factual decisions. The same thing can happen with stipulated facts (which happens a lot in business law cases, such as in bankruptcy court) - the parties agree on the facts but disagree on the law, and a judge makes a decision for them.

          I hope that helps. As to the present case, it appears that the RIAA may have sat on its laurels waiting for the defendant to settle under an assumption that he would, and then were surprised by a motion for summary judgment. You don't need expedited discovery to beat an MSJ. What you do need is a diligent attorney who did discovery early and often rather than only at the last minute. There was nothing stopping the RIAA from taking depositions and sending interrogatories and requests for production to the plaintiff starting on the day that they filed suit. The fact that they didn't do that falls under the ODF rule - it's their own damn fault.
          • Re: (Score:3, Informative)


            As to the present case, it appears that the RIAA may have sat on its laurels waiting for the defendant to settle under an assumption that he would, and then were surprised by a motion for summary judgment.

            It's also possible the MSJ was filed right after the complaint and so there wasn't time for the RIAA to do discovery (I had this happen during my clerkship this summer). Rule 56 requires that ample time for discovery be given.

            • Re: (Score:3, Informative)

              by ari_j ( 90255 )
              According to the MSJ here, it the suit was filed in May, 2006, and the motion was filed on August 9, 2006. Three months is not a lot of time to do discovery, but it's certainly enough for a diligent and well-paid legal team to get enough to avoid summary judgment.
        • Re: (Score:3, Informative)

          einhverfr said: ..... Summary judgement is appropriate where any disagreement about the nature of the facts in a case is insufficient to overrule the legal standing. In short, summary judgement is like saying "Your honor, even if everything they say is true, the law is still on my side." ......

          No, that's a dismissal motion, not a summary judgment motion, that you're referring to.

          A summary judgment motion is "Your honor, here are the facts which support your dismissing the case." Then it is up to the plai

      • Not to be a buzz kill, but civil discovery typically doesn't allow "impounding" someone's home. In fact, it's pretty easy to get a protective order if the RIAA tried to do something that extreme.
      • Re: (Score:3, Interesting)

        by tinkerghost ( 944862 )

        They have enough evidence to start proceedings, but not enough to prove guilt. So they ask for more with the discovery. This is also seen in other types of cases, so its not unheard of.

        That's not the issue here. You can start proceedings by going to the courthouse & filing a document stating your belief that so-and-so did such-and-such and you seek redress through the courts. It costs about $135 here in MA IIRC. That's it, no proof, not 3rd party documentation, just a form passed in with a sheet of blu

    • Re: ah-ha (Score:5, Informative)

      by oclawgeek ( 861555 ) on Sunday September 10, 2006 @02:46PM (#16076786)

      I doubt Defendant will prevail.

      The parties have a right to conduct pre-trial discovery. See, for example, Federal Rules of Civil Procedure, Rules 26-37 [cornell.edu]. See also, Federal Rules of Civil Procedure, Rule 56 [cornell.edu], which allows the Plaintiff to simply file affidavits from its investigators, along with the subpoenaed information, showing that the ISP states that Defendant was using the relevant IP address at the relevant time and that he was allowing others to infringe on copyrighted material owned by Plaintiff. If all these things are set out, RIAA will probably win, since this should probably be enough evidence to show that there exists "a genuine issue as to any material fact" (Rule 56(c)) or at least convince the court to permit discovery before hearing the Motion for Summary Judgment.

      Rule 56 provides that summary judgment motions can be made at any time primarily because some defenses can be asserted such that it would be unfair to subject the defendant to the cost and burden of the discovery process, for example an immunity defense. A motion which doesn't assert some legal defense, but instead relies on the lack of a developed factual record is premature before the parties have engaged in discovery. Courts deny these kinds of motions all the time. See, for example, Behrens v. Pelletier, 516 U.S. 299 (1996) [cornell.edu]("The court also denied petitioner's summary judgment motion, without prejudice, on the ground that it was premature given the lack of discovery.")

      Moreover, Rule 56(f) clearly permits the District Court to deny the motion or to continue the motion until after discovery.

      Defendant is going to lose this motion. Tactically, it's questionable whether this is a good idea - if the court continues the motion, it may expedite discovery and fast-track the case. On the other hand, if Defense counsel thought she was going to win on this motion, she's a moron. FWIW, she's been a lawyer in Illinois for less than two years [iardc.org]. Draw your own conclusions.

      It's clear from the discussions here on /. that most of the commentators, as usual, haven't read any of the documents actually linked to in the summary. Basically, RIAA says everything I've said, but provides better authority (my comment would be clearly better, if only I was billing someone $250/hr to write this... ;-) for the proposition that the parties have a right to discovery before Summary Judgment Motions are heard. Moreover, the case they cite for this proposition, Celotex is well known to even neophyte civil litigators. (Except, of course, for Defendant's counsel.)

      What's most interesting about this whole thing is not that Defendant will lose this motion, but that Defendant is probabl going to get his case set on an expedited schedule, have his deposition taken, and then fight over the inevitable discovery compliance motion RIAA will file when Defendant tries to avoid allowing an expert to examine his hard drive [cornell.edu] to see whether he actually downloaded the tunes, or ripped them as he stated under oath. Defendants have lots of legitimate reasons not to want to allow someone to inspect their hard drive, of course, so it will be interesting to see how the court strikes a balance between Defendant's privacy in irrelevant data with Plaintiff's right to discovery.

  • by Nicolas MONNET ( 4727 ) <nicoaltiva.gmail@com> on Sunday September 10, 2006 @07:37AM (#16075112) Journal
    ... could'nt he just fucking translate the submission into english before posting ...

    "Nul n'est sensé ignorer la loi", but who the fuck he supposed to understand legalese, I wonder.
    • by anonieuweling ( 536832 ) on Sunday September 10, 2006 @07:40AM (#16075116)
      If defender wins, how can he get back at RIAA for a 'false' suit?
    • by Watson Ladd ( 955755 ) on Sunday September 10, 2006 @07:47AM (#16075121)
      Paul Wilke wants the case settled now. The RIAA say they don't have enough evidence, and so are asking for a faster discovery. Basically the RIAA didn't have evidence before the suit, and so want more time to come up with something.
      • by muskieman ( 935340 ) on Sunday September 10, 2006 @09:28AM (#16075314)
        Sad to back these tools up, but they (claim) did have evidence, they tracked an ip address that was traced to an account, then filed a lawsuit against that account. Paul claims he did not share files and does not have them on his computer. So, the tools want to verify his claims by inspecting his computer etc etc. This is all reasonable (while the concept of the lawsuits may not be)

        Hopefully, Paul (or Paule) does not have any evidence of those songs on his computer (and more importantly, does not have evidence that they may have been erased, there was a precedent where someone got the book thrown at them after using a drive wiper, hopefully that gets thrown back on appeal). Sadly, even if he is innocent, if they (the tools) can convince a judge that the data has been tampered with (wiped hard drive, another computer, whatever) they could still reak (pun intended) havoc.

        This is an opportunity to raise the bar by requiring much more specific proof of infringement before violating a person's right to privacy and disrupting their lives, but don't expect that to come out of Chicago. Next best thing is that if Paul can withstand the expedited discovery (and many dirty tricks will probably be used) then he wins and precedent is set. This will limit and force the hand of the tools in future cases and encourage others to resist the suit (specifically if Paul can get attorney fees).
        • by E8086 ( 698978 )
          YES! more RIAA bashing...
          "does not have evidence that they may have been erased, there was a precedent where someone got the book thrown at them after using a drive wiper"

          Hopefully this will not make having secure file deletion software file "illegal" according to the RIAA, no, wait it probably is already. After converting my TV recording with my legally purchased DivX encoder I use Eraser to remove the no longer needed files; first recording w/ commercials and with commercials removed. I have no need to ke
          • Re: (Score:3, Informative)

            by Barny ( 103770 )
            You will find, after reading the case in question, that the reason they had the book thrown at them was because they were asked by the court to supply their computer as evidence, THEN they wiped the HDD.

            They were given default judgement because by destroying evidence asked for by the court (the destruction being done after the asking) is very very wrong.
        • I guess if I were in his situation and guilty, I'd have already taken out the NIC in the infringing computer, slapped it in another existing machine with the same OS, and dumped the NIC-less computer in the Mississippi river. The RIAA can't just sieze property, so there isn't much they can do. They call to allow you to settle, right? And you eventually get a court summons, right? You get lots of chances, just make sure they aren't following you and say that you got rid of evidence. Stick to your story.

          • Re: (Score:3, Interesting)

            Theoretically how valid would it be to run a Linux Live CD when you want to P2P then copy the downloaded files to Flash drive? Or just use the Flash drive as the storage drive I suppose. You'd be limited to the size of file you could download so not much use for DVD isos but you get the idea. Feasible? I'm presuming your PC when booted normally wouldn't show any traces of the P2P activity while still looking like an un-tampered with everyday PC. Or even simpler could you just use a second PC on your networ
        • Lost cause. (Score:2, Informative)

          The thing I don't get is, he can easily give them a computer that never had music on it. There is no way to prove the computer he gives them was even on or not on his internet connection or in or not in his house when the downloading/uploading occured. The person who deleted files was an idiot, it's simple have two computers, one for downloading and one for surfing. In the event of subpoena let a friend hold onto the downloading computer and turn over the clean one. Basically the only way the RIAA will
    • by Talez ( 468021 ) on Sunday September 10, 2006 @07:49AM (#16075125)
      Allow me to try.

      Defendant: I'm tired of this bullshit. Show me what you really have so we can get this over and done with.
      RIAA: Uhhh... shit. We don't have a thing. Your honour could we please search everything the defendant owns in order to find something?
      • Your honour could we please search everything the defendant owns in order to find something?

        This suit takes place in the US, so it would be "Your Honor." But, you know... semantics and what not ;)

        • Well, I'm American and I know what he meant. He can say "zed" instead of "zee" if he wants, too. Hell, I even know that he means gasoline when he says petrol and gather he means elevator when he says lift. A car trunk is a boot. There's a whole web site dedicated to this somewhere...
          • by Alien Being ( 18488 ) on Sunday September 10, 2006 @08:48AM (#16075231)
            "There's a whole web site dedicated to this somewhere..."

            I think there's a whole island.
          • Try that sort of substitution in any programming language. I dare you.

            But it was a joke. Really. See the winky face at the end? You might have missed that or maybe it wasn't in the right form of English.
            • A winky face doesn't make a comment any less snarky or annoying. Sorry, I'm just tired of flamewars about the metric system vs. the English system or British English vs. American English or whether a billion is one-thousand millions or one million-millions... they're all just stupid conventions. If you weren't flaming then I'm sorry I got all sarcastic.
              • by rbarreira ( 836272 ) on Sunday September 10, 2006 @09:33AM (#16075327) Homepage
                I'm just tired of flamewars about the metric system vs. the English system
                they're all just stupid conventions

                No they're not, only one of those is :P
                • See?

                  I know you were being funny, but put together a cohesive argument for my grandmother/mother/brother why they should all of the sudden switch to metric. My father and I are engineers and hate working with English units, so we are not your target. Even then, we usually only have to deal with English units at the beginning and the end of the design phase, or when using older equipment. 300 million people using a system of measure is all by itself a good reason not to change. From their point of view, it's

            • by ceoyoyo ( 59147 )
              Actually I've used several libraries where the authors have been kind enough to provide macros (or the equivalent) making "color" and "colour" both acceptable.
    • by martin-boundary ( 547041 ) on Sunday September 10, 2006 @08:10AM (#16075152)
      Ok, I'll translate for you but bear in mind I've been watching a lot of TV recently so I'm a little zoned out and it might not all make sense:

      The RIAA claim they got attacked by Paul Wilke in 2001 when Paul allegedly flew his ftp client into a Warez carrier. Of course this was before Hilary Rosen's "resignation" as the RIAA's chief anti-piracy lead, which I'll come back to. Now the RIAA are claiming that Paul can copy an MP3 within 45 minutes, which is contentious because they can't really tell the judge _which_ MP3s Paul can copy so fast. But given the nature and extreme urgency of the threat, they're asking the Judge for the right to go into Paul's house _right now_ and change the OS on his PC. Apparently, once they've liberated his hard disk, it'll be trivial to find tons of hidden MP3s.

      Naturally, Paul isn't too happy about this, and he's been talking with his French lawyer about vetoing the proposal, which is what this letter is about. Right now, we're all wondering if the judge is going to make a resolution, and if the RIAA will go it alone anyway if it doesn't look like it'll work out for them.

    • by quentin_quayle ( 868719 ) <quentin_quayle@noSpAm.yahoo.com> on Sunday September 10, 2006 @08:57AM (#16075255)
      Motion for Summary Judgment means asking the judge to dismiss the case now, because there is (and i may recall this inexactly, but this is the essence of it) "no genuine issue of material fact or law". In other words, defendant says, there are no relevant facts in dispute, and on the known facts the law is in my favor. So please dismiss.

      Discovery is a process where each side submits lists of documents and other evidence (worded as broadly as they can get away with) and the court will force the other side to supply what's listed, if it's arguably relevant to proving or disproving a claim (or counterclaim, bla bla).

      Courts generally supposed to frown on "fishing expeditions". Theoretically you have to have some evidentiary basis for a suit in the first place, before you can use the suit to compel discovery. Who knows what the RIAA can get away with, though.

      (not a lawyer, did the jd, but this is not legal advice, yada yada)

      • by jZnat ( 793348 ) *
        (not a lawyer, did the jd, but this is not legal advice, yada yada)

        There's no such thing as legal advice on Slashdot, so don't worry about any disclaimers. If lawyers come to Slashdot and want to give legal advice, they're obviously out of a job at the moment (otherwise I'm sure they'd be too busy to give free service other than pro bono and the like).
    • by Shemmie ( 909181 ) on Sunday September 10, 2006 @09:23AM (#16075306)
      Thank God for lawyers. Without them, how would we ever decode legal issues that have been encoded by other lawyers. Wait a minute...
    • by neoform ( 551705 )
      "Nul n'est sensé ignorer la loi" is french. It says something like, "No part of the law is being ignored"
  • by Inominate ( 412637 ) on Sunday September 10, 2006 @07:46AM (#16075120)
    Is this kind of stuff actually legal? The RIAA seems to like to do it, as SCO also did. Is it common to go into civil cases like this?

    "We can't make a case against you, so you're going to have to do it for us."

    What? Huh?
    • Re: (Score:3, Informative)

      by Watson Ladd ( 955755 )
      IANAL, but I belive that that standing has to be proven when the suit is filed, and the judge can throw it out for lack of standing if he belives that the person filing it wasn't harmed by the claimed actions of the defendant. Of course, this is a very low threshold.
      • by nosilA ( 8112 ) on Sunday September 10, 2006 @09:17AM (#16075298)
        IANAL, but I am a third year law student:

        Standing is different from having enough evidence to make a case. Standing, in this type of case, means that the plaintiff is alleging harm to itself by the defendant. I, for instance, would lack standing trying to sue Joe for hitting Jane with his car. But, if someone hit my car, and I think it was Joe, but I don't know for sure - I have standing, but perhaps no case.

        In this case, the defendant has filed a motion saying that the plaintiffs (RIAA) do not have any evidence against him, and no reasonable judge or jury would find in the plaintiffs' favor. Unlike standing, RIAA could clear this hurdle merely by finding more facts that would implicate the defendant. The question is whether the plaintiff can use the discovery process to build a case if they have no evidence in the first place.

        A defendant can be compelled to turn over any documents and records to the opposition that the opposition specifically asks for. However, RIAA needs to show that it has some basis for filing the suit, and that it isn't simply harassing the defendant. RIAA does not need to show it has enough evidence to proceed to trial. I'm not sure where they are on this case.
        • Re: (Score:2, Interesting)

          by boombaard ( 1001577 )
          hm.. most interesting, in a way.. could you also claim the right to look at all the RIAA's communication with the parent companies to see if there's a conspiracy going on to say, bash the poor consumers into submission? or would that be "unreasonable"?
          • IANAL - IANAL - IANAL

            But re. your question. To claim the right to look at any, let alone all of the RIAA's comunications with the parent companies, you'ld have to first make some sort of counterclaim. Until someone is willing to claim barratry or fraud or something on the part of the RIAA, there's no way to simply defend against the RIAA's claims and seek any such records. Note there's no such charge as "conspiracy to bash the consumer into submission", it would have to be something roughly like 'conspiracy
    • .. Groklaw will cover ths in due course
    • There is no "legal" or "illegal" when it comes to civil law. It only comes down to what a lawyer can prove in the court room. The facts are immaterial. I'm not exagerating. Civil law is a "game" about who can _convince_ a judge or jury of the truth or falseness of the accusations. Welcome to U.S. Legal 101.

      You have to understand. The truth and the facts, really don't matter.

      Unfortunately, it is a very, very screwed up system. If you think "right" triumps over "wrong", you are sadly, buying the popul
  • by donaggie03 ( 769758 ) <{moc.liamtoh} {ta} {reyemso_d}> on Sunday September 10, 2006 @07:48AM (#16075123)
    Is this saying that RIAA sued someone, and the defendant actually fought back with a motion for dismissal? And the RIAA says that they don't actually have the evidence they need to prove anything, but just give them a minute, and they'll scrounge something up? Shouldn't the RIAA have thier evidence BEFORE the trial??
    • by cdrudge ( 68377 )
      There is another lawsuit going on very similar to this. The plantiff sued on nothing, went through discovery on a fishing expedition to try to find anything, given time and time again to find something, and still has found nothing. It's been talked about a little here [groklaw.net] (although the site is currently down for maintainance).
  • by hugetoon ( 766694 ) on Sunday September 10, 2006 @08:12AM (#16075157)
    Let's try to translate:

    RIAA: Hey yr honor, this dude stole my stuf, i know 'cause a guy i pay to hang on the net told me so!

    DUDE: Nope, i didn't.

    RIAA: Sure, they all claim the same, and actually by now i've got no evidence, but if you let me go his home and
    put everything upside-down i bet my "experts" will find something!

    Well, i hope this is not the way the USA justice works.

    And if i were Defendant i'd ask RIAA in return (and before giving anything to them) to let me do forensics on computer their investigators used to identify my IP and computers they used to exchange mails and every other piece of equipement i could think off (like routers of their ISP). And it'd
    take me 10 years or so, and of course at the expense or RIAA (i mean, forensics is a hard work, i intend to get payd for it) if i figure that they made a mistake.

    • by lpq ( 583377 )
      Well, I hope this is not the way the USA justice works."

      Hope and a buck will get you a cup of coffee -- maybe you'll wake up and understand the lie that is the US legal (not justice) system.

  • by somethinghollow ( 530478 ) on Sunday September 10, 2006 @08:17AM (#16075170) Homepage Journal
    But what does Grok Law have to say about all this?! I'm lost without them.
  • by BGraves ( 790688 ) on Sunday September 10, 2006 @08:21AM (#16075176)
    The US has liberal pleading rules, and as such, has wide discovery as well. This is good when a small person tries to sue a large company. Say a company is dumping chemicals into your water, and your kid gets cancer. There is no way the company is going to give you the evidence you need to get a civil verdict. That is why you can file a claim with little to no evidence, and then through discovery, the court can force the company to provide you with types and quantities of what they are dumping into the water. If they refuse, they can be brought up on criminal charges. Rule 11 in the federal laws of civil procedures is designed to prevent lawyers from filing civil suits just to get discovery priviliges. If I was the gentleman in question, I would ask my lawyer to evaluate a Rule 11 charge in addition to the summary ruling. I am reading the rule right now, and a judge could impose on the party involved monetary penalties that would prevent the conduct in the future. I don't see that happening, but even if the judge just fined the law firm representing the RIAA, it would make them less likely to help the RIAA in the future.
    • I seems in the best interest of all of us to become familiar with this "rule 11".
    • by GeckoX ( 259575 )
      I still don't see how this can be applied so arbitrarily.

      In cases like you mention, there is at lest a set of plausible events that show a logical 'possibility' that a defendant did as charged. As per your example, your kid gets cancer, there's something funny with your water, this big company is upstream from your water supply and there are no other big companies up there...There is a trail that leads somewhere.

      This is being used by the RIAA as a complete wild goose chase. He did it! Nope, we've got nothin
    • by thelost ( 808451 )
      I'm not American so I do not know much about the American justice system but to me it seems that up until now large companies such as the RIAA have been leveraging their vast financial resources to threaten individuals they are suing into settling out of court etc?

      I guess what I am saying is that I don't hear about so many cases when individuals can or do sue large companies because financially it is impossible for private citizens to compete with multinationals. I also personally would feel very uncomforta
    • by Peyna ( 14792 )
      Rule 11 does not apply to discovery. There are separate sanctions in regards to discovery violations, but none of them are criminal (nor are Rule 11 sanctions criminal).
  • by StressGuy ( 472374 ) on Sunday September 10, 2006 @08:29AM (#16075185)
    It kinda looks like we all see it the same way, i.e. - this guy just "called the RIAA's bluff".

    So, now the RIAA wants permission to search for the evidence the clearly never had in the first place. Alright, my question is, can this guy go back to the judge with "Given that I was summoned to appear here on the pretext of compelling evidence that we now know the RIAA does not posses, and given that I am not prepared to waive my right to a speedy trial while they are given additional time to find this evidence, can we just dismiss this and all go home?"

    Also, can I counter-sue for lost time, lost wages, added stress, etc.?

    but, of course, IANAL (besides being ANAL, I'm not a lawyer either ;))

    • He better hope he's 100% clean While with the case at point he may be safe, what if his daughter copied a Brittany spears album down and there is no proof of purchase?

      Who is 100% clean in this world, we ALL have something we can be nailed for if one searches hard and long enough. And the RIAA/MPAA/BSA/HSD/whatever has the time and money to grind you into the ground finding that one shred of evidence that can put you away. Unless of course you give up along the way, like most of the common folk have to do
      • by ceoyoyo ( 59147 )
        Format his hard drives and find an old wireless router with easily cracked WEP. No, your honor. It wasn't me. Perhaps someone hacked my router. I turned on the security, but it seems it was defective. It's made by a subdivision of Cisco, if that helps....
    • There is no such thing as a right to speedy trial in a civil suit. It only applies to criminal cases.

      Also, can I counter-sue for lost time, lost wages, added stress, etc.?

      Probably not. First, you aren't going to lose any wages unless you have to take time off from your job. There's no reason you would have to do that unless it actually went to trial.

      Stress, distress, etcetera are awardable in situations where your leg gets cut off or you watch your kid get run over by a car. But they are not awardable s
    • I am not prepared to waive my right to a speedy trial

      That's not a right that is relevant here. The U.S. Constitution codifies a right to a speedy trial for criminal cases, not civil matters. This right exists to prevent the government from accusing you of a crime, putting you behind bars, and then delaying the proceedings until you've served 15 years (thereby circumventing your right to be tried for your crime). A civil case, on the other hand, can go on as long as either party is willing to fight.

      can I

    • by nsayer ( 86181 ) *
      my right to a speedy trial

      Not a criminal trial, thus no right to a speedy trial.

  • by MECC ( 8478 ) *
    "does not have sufficient evidence"

    As if they ever did, ever have, or ever will.

    I suppose they want exclusive access to his hard drive so they can find an MP3 file somewhere.

    "He only had a few of the songs from exhibit B [the screenshot] on his computer, and those were from legally purchased CD's owned by Mr. Wilke"

    Good god - screenshots (which are very hard to fake your honor). This circus of a crusade gets increasingly stupid with each instance of accusation.


    Ooo look your honor - MP3'
  • by cpt kangarooski ( 3773 ) on Sunday September 10, 2006 @08:46AM (#16075223) Homepage
    Before filing the suit, RIAA must have gathered some amount of evidence which led them to believe that the defendant was breaking the law to begin with. However, this could be very little evidence, far less than would actually be needed to prove it in court. This is because once you file a suit, you then get to engage in discovery so as to get sufficient evidence. All you need in order to file, pursuant to Rule 11 is "to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery."

    Having filed, they're entitled to gather evidence more easily, by getting testimony, physical evidence, etc. They generally have a right to gather it for the suit, rather than merely asking for it. Federal civil trials in the US are big on discovery. The idea is that there should be no surprises in court; both sides will have ample opportunity to determine precisely what happened. Hopefully, there won't even be a dispute over the facts, making the trial go faster, and ideally it'll get the parties to settle or the case to get dropped, since court time is a valuable commodity.

    In any event, what has happened here is that the defendant has filed for summary judgment to dismiss the case. In a trial, there are questions of fact (e.g. did A stab B?) and questions of law (e.g. is it against the law for A to stab B?). In a summary judgment motion, the moving party is saying that there are no questions of fact which will have any bearing on the case, or some portion thereof. Therefore, the case (or the portion of the case for which summary judgment is sought) can be decided by the judge immediately, based purely on the law and the facts for which there is no question. (e.g. A and B agree that A stabbed B, so accepting that, the only issue is whether it was against the law, not whether it happened)

    However, often both sides will dispute whether there are material factual questions remaining or not, that is, whether there are disputed facts where a reasonable jury could go either way, and which are important to the case. For instance, if A says that the knife was a toy knife, and B disagrees, this is likely material. But a dispute over the color of the knife likely is not.

    Here, defendant is asking for summary judgment because he says RIAA sued the wrong person, and anyway, he didn't infringe. RIAA is saying that they need to gather more evidence so that they can show it to the judge, show that there are material questions of fact which are in dispute, and that they should go to a jury. In order to do this, they need to engage in discovery to find out some of these facts, since they weren't required to have them prior to filing the suit. N.b. that all RIAA has to do is show that there are still issues that need to go to a jury -- they do not need to show that the jury would find in their favor, or that they'd win the eventual case. Even highly disreputable and unbelievable evidence is sufficient to defeat the motion if a reasonable jury might believe it. In summary judgment matters, the court will look at all the facts in the light most favorable to the non-moving party, who is in this case, RIAA. This is because it's the moving party that wants no trial, and so should be required to prove it. The moving party isn't allowed to use summary judgment as a railroad to get the case dismissed before crucial evidence can be gathered, as that would run contrary to the rules allowing for discovery and setting the low threshold for filing.

    Honestly, this is all fairly ordinary stuff. I don't think it's really news.
    • by hyfe ( 641811 ) on Sunday September 10, 2006 @10:44AM (#16075571)
      Atleast if you don't enjoy have mean men in black suits knock on your door.

      He admits himself in his own signature that he's giving out illegal advice. Illegal advice!

      - This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
  • by nenya ( 557317 ) on Sunday September 10, 2006 @08:53AM (#16075240) Homepage
    When a plaintiff files suit in court, it does not necessarily need to have all of the evidence it needs to win. This is the purpose of the discovery phase of a lawsuit.

    If a plaintiff believes it has been wronged but the information necessary to sufficiently prove their case is somehow privileged, there is no way for them to possess that information as evidence without discovery. That's why it's called "discovery". Plaintiffs frequently believe that internal documents or sworn testimony of the defendant will prove their case, but without discovery, they will never be able to read those documents or obtain that testimony.

    In this case, the RIAA needs access to defendant's computer to prove its case. It has no such access without a subpoena, which it cannot obtain without a lawsuit. Plaintiff has filed that lawsuit and is now asking the court for permission to obtain the evidence needed to prove it.

    I would be very surprised if the court denied their motion.
    • by cdn-programmer ( 468978 ) <terr&terralogic,net> on Sunday September 10, 2006 @01:59PM (#16076527)
      You are probably correct that the judge will allow this witch hunt to proceed.

      What this illustrates is that a law suit can be used to expose someone's trade secrets and confidential work. Suppose Paul Wilke is a programmer and he is working on a secret project that he intends to flog as a product in the not too distant future.

      If the RIAA is allowed to go trapsing through his hard drives, then they will find the source code he is working on even if they do not find the copyrighted music they claim might be present. Thus they are breaching the defendant's rights by exposing his copyrights which he has every right to keep confidential.

      Once the genie is out of the bottle its out and even though I personally greatly disagree with patents, what this can do is compromise Paul Wilke's ability to patent things in the future.

      While the legal system is suppose to honour confidentiality it often does not do so. Lawyers offices are very leaky and generally very insecure.


      I had one lawyer send me his enitre client list. I could have contacted each and every one of them.


      Another lawyer received a confidential tape containing source code for a rather large project which was involved in a litigation. This lawyer agreed to keep the tape confidential. This was an "undertaking".

      The next thing the lawyer did was to call up a third party company that does software development in exactly the same area as the project in question - IE - a competitor and a strong one at that. This company was given the tape and asked to read it. They were not told what was on the tape and thought it was data and not source code.

      After the company received the tape they handed it to one of their employees who happened to have worked for me on a project a couple years before and she tossed the tape in her napsack and peddled her bike across town and delivered it to me - and I _ALSO_ do software development in this area and thus ALSO am a competitor.

      I had the correct operating system which her employer did not have running.

      I was also not told what was on the tape.

      Over the course of a week I was able to read the tape and lo and behold what came up was all of these copyright notices.

      Thus - I was put in the position of seeing unwanted source code which could expose me to a law suit if I were to do anything that happened to fall even remotely in the same area as the source code on the tape. The short of it is that if a programmer even sees someone else's source code they can be sued for copyright infringement just as George Harrison was found guilty of plagerism and copyright infringment on the basis that he might have heard the song "He's So Fine" playing on the radio before he wrote "My Sweet Lord".

      Leaky law office! You bet. The answer here is that if you are a programmer then don't let anyone hire you to read a tape and if you are a song writer then you better not listen to the radio or buy any CD's. The world we live in is just aweful in some ways.


      The next example of leaky law offices is that most use windows systems which are not secured and most are too damn cheap to hire a sysadmin let alone a security consultant much less put in a fire wall. Generally they cannot understand why there might be black hat crackers out there, yet most of them take on clientel which would be overjoyed to hire a black hat and certainly do have the motivation to do so.

      This is like connecting every keyboard in the world to their computers with no attempt at security. This is like taking their file cabinates full of confidential documentation on the cases undergoing litigation and putting these file cabinates in an open parking lot without so much as using a key to lock them or anyone to guard them. Clearly if the files are accessed they have no idea who might have done it. Of course we all know that in a lot of litigation there is a complete disrespect of the law.


  • "Plaintiffs cannot at this time, without an opportunity for full discovery present by affidavit facts essential to justify their opposition to Defendant's motion."

    They mean "Plaintiffs cannot at this time, without an opportunity for full discovery, present by affidavit facts essential to justify their opposition to Defendant's motion."

    Without that extra comma, the "present" they wrote has the accent on the first syllable, meaning "now", rendering their statement grammatically incorrect and nonsense. With th
  • Very Funny (Score:5, Interesting)

    by beadfulthings ( 975812 ) on Sunday September 10, 2006 @09:02AM (#16075261) Journal
    I notice in reading the .pdf version of the motion that the RIAA lawyers didn't even have the man's name right in their initial filing of the lawsuit. His own attorney had to straighten that out. I'm glad Mr. Wilke's pockets are deep enough that he can afford astute legal counsel who knows how to handle a fight like this. I suspect that's not the case for the single mothers, recently-bereaved orphans, and elderly grandparents who are the RIAA's usual prey.

    It's disconcerting to think they can sue when they have no real evidence that they've been injured. I suspect they do this more often than not. Let's hope this motion succeeds and that other defendants and lawyers take note of it.
  • A) They got the wrong guy in the first place
    b) They have no evidence
    C) Because A) and B) are true, they need time to scour this guy's life to find something, anything, to pin on him so the RIAA don't look stupid (again).
  • I assume many are aware of a program called iTunes. With that program you can rip your CD collection in mp3 format (and several other choices) to your hard drive to provide convenient access to the music you have purchased. If your hard drive were examined and these files found would it provide useful evidence for the plaintiff's case? Most home computers in the US have internet access and many people store their music on a computer hard drive. That is what is needed to infringe copyright law but it would n

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