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."
Makes sense (Score:5, Insightful)
ah-ha (Score:3, Insightful)
Evidence (Score:5, Insightful)
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 )
While not unheard of (Score:5, Insightful)
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.
Re:While not unheard of (Score:5, Funny)
I bet no-one's ever uttered that exact sentence ever before.
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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.
IANAL (Score:2)
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)
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.
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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.
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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
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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)
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.
Since submitter is a lawyer ... (Score:5, Insightful)
"Nul n'est sensé ignorer la loi", but who the fuck he supposed to understand legalese, I wonder.
Re:Since submitter is a lawyer ... (Score:4, Interesting)
Re:Since submitter is a lawyer ... (Score:5, Informative)
Re:Since submitter is a lawyer ... (Score:5, Insightful)
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).
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"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
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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.
Re:Since submitter is a lawyer ... (Score:5, Insightful)
If someone wipes a drive and is sued 2 days later, how do you prove the wipe had nothing to do with the suit?
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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.
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Lost cause. (Score:2, Informative)
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Re:Since submitter is a lawyer ... (Score:5, Funny)
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?
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This suit takes place in the US, so it would be "Your Honor." But, you know... semantics and what not ;)
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Re:Since submitter is a lawyer ... (Score:5, Funny)
I think there's a whole island.
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(Attributed to Winston Churchill)
To The Best Of My Knowledge... (Score:2)
But I understand the Whitehouse is working on it.
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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.
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Something else to annoy you (Score:5, Funny)
No they're not, only one of those is
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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
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Thanks for the dig at America - really necessary.
Anyway, as an actual engineer in the US, I can assure you that all modern testing equipment is metric. Even if it displays in English units, it still is configurable to metric. We use grams and mm (and probably liters, though I don't deal with volumes much). Conversion is a pain, but it hardly seems to hurt America's ability to engineer things. Before you make a snarky comment about crappy American cars, they have been all-metric for perhaps 20 years now. An
How many hogsheads per furlong was that? (Score:2)
There's certainly nothing inherently difficult in metric-land - in fact, life is much easier! For sure, who the hell knows how many bushels per fur
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No, actually - though Monty Python is pretty damn funny. I've never seen Dr. Who or Red Dwarf. I think I've seen one episode from each continent of the Office.
That said, if you think it matters whether someone has a sense of humour or a sense of humor, then you've pretty much failed at life. Loser.
Re:Since submitter is a lawyer ... (Score:4, Insightful)
From the RIAA's point of view, that's not as dumb as it sounds.
1) They get the publicity (another mile on the piracy lawsuit odometer). Whether this one is guilty or not, it counts just as well in their scare tactics.
2) The mere fact that there *is* a lawsuit leads to out-of-court settlements more often than to court sessions, because the defendants (plain citizens) believe they'll save on legal expenses that way.
In this case they had the bad luck to "hit" a 50+ year old guy who stands up for himself, but suppose it'd been someone with a 14-year old kid using the family's internet connection. You know how kids are, and they wouldn't file a complaint if they had nothing to back it, would they? So you'd probably believe it, and try to move it into history as fast and as cheap as you can.
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Unfortunately, media is all too full of stories of RIAA falsely suing old grannies, dead people and folks that do ot even own a computer. So no, that is not a natural assumption anymore. You are wrong.
Re:Since submitter is a lawyer ... (Score:5, Funny)
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.
Re:Since submitter is a lawyer ... (Score:5, Informative)
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)
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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).
Re:Since submitter is a lawyer ... (Score:4, Insightful)
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I'm french too, but living in quebec and speaking english all day every day will pretty much make you forget those 13 years of french classes
Is this stuff actually legal? (Score:5, Interesting)
"We can't make a case against you, so you're going to have to do it for us."
What? Huh?
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Re:Is this stuff actually legal? (Score:5, Informative)
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.
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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
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If you read the fine documents linked to in the article summary, you'll discover that the RIAA is not actually named as the plaintiff in this case. Rather, five of its members --
have filed suit against this person.
Presumably, those five members are the copyright holders
with a bit of luck.. (Score:2)
YES: Re:Is this stuff actually legal? (Score:2)
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
So in English . . (Score:5, Insightful)
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You might be talking about these cases: Priority Records v. Candy Chan [riaalawsuits.us]( Chan I ) and Priority Records v. Brittany Chan [riaalawsuits.us] (Chan II ), in Michigan; Capitol v. Foster [riaalawsuits.us], in Oklahoma; Warner v. Stubbs [riaalawsuits.us], also in Oklahoma; and Virgin Records v. Tammie Marson [riaalawsuits.us], in California. All cases resulted in RIAA dropping the case.
All of the RIAA's cases are based on the same slender evidence: (a) a screenshot; (b) a half dozen or so song files their investigator was able to download; and (c) tracing the dynamic IP address of t
Re:So in English . . (Score:5, Informative)
In which case the answer is no. The RIAA should have a good faith basis for suing, but part of the legal process is that once the suit is initiated, there is a phase called "discovery" where both sides attempt to obtain evidence that supports their position, exchanges that evidence, requests access to certain things (e.g. the defendant's harddrive), and essentially tries to collect everything necessary to put on a case. Then there's the opportunity to file a Motion for Summary Judgment, if the evidence appears to show that the facts are undisputed (or fails to show anything of relevance). Then there's the trial. Obviously this is a highly simplified explanation, which leaves out other potential steps (or mis-steps) that are not currently relevant to my short summary as it pertains to this case, but that's the gist of it.
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RIAA and good faith?
hello, hell? how is the weather down there? i was hoping to get som skiing done.
Re:So in English . . (Score:4, Interesting)
This particular phenomenon is the biggest argument for tort reform in recent memory. The American legal system is set up in such a way that, if you are sued, you are financially penalized win or lose. In other jurisdictions (I'm thinking of the UK in particular) the plaintiff is obligated to pay for the defendant's legal fees if the plaintiff loses the suit. This has the effect of curtailing suits that are filed simply to harass defendants, or to promote failing business models as the only choice available to the consumer, lest they be bankrupted in court.
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But doesn't it also suppress legitimate suits by small players? A family believes that Johnny's cancer was caused by the chemicals dumped by a big company into the local pond. Can the family really afford to take on a huge company? Sure, you'd like to think the little guy would win, es
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It also has the effect of making it even more difficult for the little guy to get redress for wrongs done to him by anyone with a big legal budget. Un
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This also enables a kind of protection racket to be operated. By the plaintiff offering to accept a "settlement" of just under the defendents most likely legal fees. Even if a defendent were to fight the case as LIP it's still likely to have a cost to him/her.
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That's where the "good faith basis" comes in. There are ways of accusing lawyers of filing lawsuits frivolously or lawsuits without merit, or for accusing the plaintiff/plaintiff's lawyer of unjustly causing harm to a defendant for filing frivolous or meritless suits. Fortunately or unfortunately (depending on how you feel), "goo
Atempt to translate and possible answer to RIAA (Score:5, Interesting)
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.
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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.
-l
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I was actually thinking of a situation where I could be in the USA working as a consultant (as I have before), and the RIAA decide they want me after I login to the Internet using the laptop I use back here at home. Or to look about more widely, at a situation like Dmitri Skylarov faced when in the USA with a perfectly valid visa.
Besides, your jails are not so nice. We know that your prisoners at Guantanamo Bay arn't treated "cush
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Grok Some Law (Score:4, Funny)
This is the way the system works (Score:5, Interesting)
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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
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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
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So...to continue the train of thought we all have (Score:5, Interesting)
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
During the search (Score:2)
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
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Re:So...to continue the train of thought we all ha (Score:2)
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
Re:So...to continue the train of thought we all ha (Score:2)
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.
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Not a criminal trial, thus no right to a speedy trial.
As if (Score:2)
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'
Since there seem to be some questions (Score:5, Informative)
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.
WARNING! DON'T READ PARENT POST (Score:4, Funny)
He admits himself in his own signature that he's giving out illegal advice. Illegal advice!
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Certainly, though, if someone here wants actual legal advice, they should hire a lawyer licensed in their own jurisdiction.
All that said, I think the earlier post was a joke, in that if what I said isn't legal advice, it must be the opposite, which is illegal advice.
This is the purpose of discovery (Score:5, Insightful)
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.
Purpose might be to expose his trade secrets (Score:4, Informative)
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.
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I had one lawyer send me his enitre client list. I could have contacted each and every one of them.
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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.
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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.
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Th
Comma Chameleon (Score:2)
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)
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.
Re: (Score:2)
so, simply put... (Score:2)
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).
How is discovery relevent in this case? (Score:2)
Re: (Score:2)
This is an interesting observation but it seems awfully weak. The source is usually digital and if you use EAC always identical. There are only so many mp3 encoders so if you choose a specific bitrate it all seems rather deterministic. Personally I want to preserve my original CD content so I use lossless compression (usually FLAC) and the first few times I decompressed and compared to the orig