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RIAA Goes Judge Shopping After One Judge Actually Pushes Back

from the sneaky,-sneaky,-sneaky dept

Mon, Jun 16th 2008 4:08am — Mike Masnick

The RIAA has been known to pull all sorts of tricks over the years to get what it wants, but this latest one may be the most sneaky of all. Last week, Ray Beckermann was notified that the RIAA was dropping one of the cases it had filed against one of his clients, Warner v. Cassin. In that case, a judge had been reviewing a dismissal motion, and appeared to find Beckermann's argument that "making available isn't distribution" compelling. So, perhaps it wasn't a huge surprise that the RIAA dropped the case before they lost it. But, then, a day later, Beckermann discovered that the RIAA had refiled the identical case in the same court, but rather than using the defendant's name, Cassin, it had filed it under a John Doe complaint, as if they didn't know who the defendant was. As such, the case got handed to a new judge. Basically, it appears that the RIAA didn't like where one judge was heading with the case, so got it dismissed and immediately refiled the case (potentially under false pretenses) and had it handed to another judge. Beckermann, of course, has made all of this clear to both judges -- but it seems incredibly sneaky that the RIAA would even think to go that far. Hopefully the court recognizes this judge shopping for what it is.

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Filed Under: cassin, judge shopping, making available, ray beckermann, riaa
Companies: riaa, warner music

35 Comments

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Alex, 16 Jun 2008 @ 4:31am

Is that even legal?
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- Jake, 16 Jun 2008 @ 4:42am
  
  Re:
  I'm not sure, but I suspect not; whoever filed the brief was presumably on oath when making their first appearance in court.
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Anonymous Poster, 16 Jun 2008 @ 4:42am

And the RIAA's attempt at legal forum shopping goes awry.

Considering some of the massive incompetence they've shown in the past decade, does this really surprise anybody?
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- Chiropetra, 16 Jun 2008 @ 9:24am
  
  Re: RIAA "incompetence"
  I'd call it desperation rather than incompetence. The RIAA's position is shaky and they're being driven to shore it up with all kinds of gimmicks.
  
  This is what happens when lawyers have clients who absolutely, positively insist that their case goes forward even though the lawyers warn them they're on very weak ground.
  
  Parenthetically, most lawyers hate this sort of thing because they know darned well it makes them look like fools to the judges and fellow attorneys.
  
  But if the fees are high enough...
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Anonymous Coward, 16 Jun 2008 @ 5:14am

As usual there isn't enough information to even know if there is a story here or not - the wired article says "But Beckerman got a call Thursday from the RIAA, informing him the case was refiled."
How sneeky is it if the RIAA are admitting it's the same case ?.
They may be trying to game the court procedures, but how many lawyers don't do that ?
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Matt, 16 Jun 2008 @ 5:15am

Not quite accurate
My understanding is that the RIAA's reasoning for dropping and refiling was that they realized it wasn't Cassin doing the sharing but someone else with access to his open network. The whole thing is still questionable (the failure to mention the original cases in the refile, for example), but it's a little (very little) less fishy than this article makes it sound.
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- donamel, 16 Jun 2008 @ 9:34am
  
  Re: Not quite accurate
  All RIAA had to do was drop Cassin and add the new defendant. So, the red flag goes up when they do it the sneaky way. By the way, most lawyers do not get away with forum shopping.
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- Anonymous Coward, 16 Jun 2008 @ 10:48am
  
  Re: Not quite accurate
  My understanding is that the RIAA's reasoning for dropping and refiling was that they realized it wasn't Cassin doing the sharing but someone else with access to his open network
  What is your source for that claim?
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  - Matt, 16 Jun 2008 @ 12:07pm
    
    Re: Re: Not quite accurate
    http://arstechnica.com/news.ars/post/20080613-third-times-the-charm-riaa-tries-end-run-around-old-ca se.html The specific quote from the RIAA spokesperson: "We recently uncovered evidence in the course of the litigation that another member of Ms. Cassin's household is likely the infringer." As I said, their actions were still highly questionable, but not as blatantly awful as some of the other stuff they've done.
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    - Anonymous Coward, 17 Jun 2008 @ 9:57am
      
      Re: Re: Re: Not quite accurate
      http://arstechnica.com/news.ars/post/20080613-third-times-the-charm-riaa-tries-end-run-around-old-ca se.html The specific quote from the RIAA spokesperson: "We recently uncovered evidence in the course of the litigation that another member of Ms. Cassin's household is likely the infringer."
      I see nothing in that article about the defendant operating an "open network" as you claim.
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Mr. Random, 16 Jun 2008 @ 5:40am

Classic
Classy, RIAA, classy.
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- Mr. Truth, 16 Jun 2008 @ 9:03am
  
  Re: Classic
  I think that comment deserves bold.
  
  Classy, RIAA, classy.
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BTR1701, 16 Jun 2008 @ 5:57am

Sanctions
If I were the judge in the original case, I'd hold both RIAA and it's lawyers in contempt, sanction them, and file a disciplinary complaint against each lawyer with the State Bar.

This sort of crap won't stop until there's consequences for doing it. If a few of these high-priced sharks lose their license to practice law, the rest will quickly get the message.
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- John Duncan Yoyo, 16 Jun 2008 @ 6:46am
  
  Re: Sanctions
  Add a month of weekends in orange jumpsuits picking up trash on the interstate for the laywers and all the senior partners of their firms and we would have a winner.
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  - Alter_Fritz, 17 Jun 2008 @ 4:49am
    
    Re: Re: Sanctions
    while your recommended punishment might shame them
    
    (don't be so sure about that though! Their top guy "RIAA-Richard" Gabriel before he will become a judge himself next month(!!) was bragging about his communitiy work on his profilepage at HRO anyway. So having picked up some trash might not be enough. It might end in a line in the profile of the other lawyers with something like "Mr. X was also actively engaged in helping to keep our great country tidy in a local activism group" or something like that]
    
    a punishment based on fines will not have the intended results either since they make so many they allegedly don't care.
    What it imo needs is disciplinary measures based on inflicting real physical pain beside the humilation. otherwise those Vultures will not learn!
    
    As I pointed out in Mr. B's blog Malaysia would be a good place for disciplinary hearing by the bar associations that have a rest of dignity and where their members feel ashamed in the light of having peers among them like those Counsel for "well known and respected record companies".
    
    Thank god me isn't a Judge in that court in Colorado. Man would I feel ashamed to have Richard as a peer giving his public record in those RIAA cases!
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    - John Duncan Yoyo, 17 Jun 2008 @ 6:09am
      
      Re: Re: Re: Sanctions
      These are the sort of people that fines don't particularly effect. Time is more likely to be more precious than money.
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www.custompcmax.com, 16 Jun 2008 @ 6:46am

They are pure scum bags. This is why I don't feel too bad about when people steal music. Not that I do it, I buy CD's still. But, they are doing it to themselves. I don't know for sure if it is, but I am guessing that "judge shopping" is illegal. So, lets go after people for breaking the law, by breaking the law. Makes perfect sense to me. Do as I say, not as I do? http://www.custompcmax.com
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- PaulT (profile), 16 Jun 2008 @ 8:28am
  
  Re:
  @custommax, if that is indeed your real name (just kidding, I know he's a troll/spammer but I couldn't resist answering this):
  
  How do you know the person being targeted in these lawsuits has done anything wrong? The evidence in these cases is usually flimsy, and even the "official" excuse for refiling the suit suggests that the RIAA aren't even sure who has committed the crime, if one was committed.
  
  Remember, researchers a few weeks ago managed to get a cease and desist order issued against a couple of laser printers. The RIAA have been known to sue dead people and people who don't own computers or have never used P2P software. Just because this person is less obviously innocent, that doesn't mean they're guilty. If you're happy with these lawsuits in any way, you'd better just hope it's not your IP address that gets spoofed next, else you'll be in this position.
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Russ801, 16 Jun 2008 @ 7:01am

Why bother?
If file sharing is as rampant as the RIAA contends, there should be a multiplicity of other cases to pursue.

Other than an over developed sense of competitiveness (the defendent can't win) I see no reason to pursue these cases. The purpose escapes me. I am sure that the cassien's file sharing behavior has changed and it has already served as a warning to other users.

All these actions due are provide another point of failure for the RIAA legal campaign. The more they stretch the rules to win the more likely they will lose.
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Funny Tshirts, 16 Jun 2008 @ 7:04am

How is this a fair trial if one party gets to pick the judge and the other doesn't?

Sounds illegal to me. But then again, I'm using human logic instead of lawyer logic.
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technomage, 16 Jun 2008 @ 7:27am

wouldn't this fall under the double jeopardy statue?
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- Lawyer, 16 Jun 2008 @ 7:58am
  
  Re:
  Double jeopardy is found in the 5th amendment of the U.S. Constitution and only applies to criminal defendants: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb". However, the actions of attorneys and their clients are always subject to "Rule 11" of the Federal Rules of Civil Procedure. The conduct of the RIAA and its law firm, if it is correctly stated in the article, may violate Rule 11 and subject BOTH the RIAA and its law firm to sanctions (fines and attorneys' fees) and immediate dismissal of the lawsuit with prejudice (meaning it cannot be refiled). See http://www.law.cornell.edu/rules/frcp/Rule11.htm.
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  - Jake, 16 Jun 2008 @ 10:50am
    
    Re:
    I'd actually go further than that; even allowing for Matt's point above, I think it would be worth finding out whether the lawyer filing the second brief had reason to be aware of what the RIAA were up to. I'm not a lawyer by trade, but I'd say that if there was collusion between the law firm and the RIAA on this, there's a strong case for bringing charges of perjury.
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- SpecialCase, 16 Jun 2008 @ 7:59am
  
  Re:
  Doubtful since "double jeopardy" usually only applies to criminal proceedings. Since this is a civil case, I believe they can refile the suit.
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msd, 16 Jun 2008 @ 7:34am

it may... if only we knew location of that statue.
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Dave, 16 Jun 2008 @ 7:54am

Even dirtier
Wow, the RIAA is even more harmful and dirty than I thought they were. They are, of course, a useless self-perpetuating bureacracy.

They may still have a small number of defenders left here and there. What they don't understand is that even if we waved a magic wand and went back to the pre-file-sharing days, musicians in that scenario get screwed eight ways to Sunday. That's how the music business likes it - the actual practicioners are just field hands. And the lucky fans get screwed by price fixing, payola, and all kinds of other corruption. Having tried to break into the industry myself, I found out a lot about how the music business actually works, none of which is publicized, of course.

So more power to any musician who finds new ways to market their music that allow them to actually keep more of the money.
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Jim, 16 Jun 2008 @ 8:32am

who?
You reference this Beckerman fellow.... who is he?
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- PaulT (profile), 16 Jun 2008 @ 8:49am
  
  Re: who?
  Ray Beckerman is a member of the EFF and an attorney who defends people accused by the RIAA. he is an outspoken critic of their tactics and runs a blog collecting information about such cases:
  
  http://recordingindustryvspeople.blogspot.com/
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  - Anonymous Coward, 16 Jun 2008 @ 9:25am
    
    Re: Re: who?
    He's also known as NewYorkCountryLawyer on Slashdot.
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kevin1, 16 Jun 2008 @ 8:49am

RIAA
If sharing some files is so reprehensible to them then why don't they just do what the satellite industry did? When the folks in that industry found out that there were 2 million people watching their content free of charge they scrambled their signals so that a decoding device was necessary to view their content. The recording industry could simply embed anticopying signals into recordings the same way that the motion picture industry did with VHS tapes and later DVDs. Problem solved and nobody has to go to court.
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- PaulT (profile), 16 Jun 2008 @ 8:55am
  
  Re: RIAA
  Erm, you're kidding, right???
  
  You've just described DRM. That was an utter failure, is directly responsible for the lack of uptake of digital formats in many areas, is responsible for Apple's current monopoly on digital sales, and is in the process of being scrapped by all major vendors.
  
  "embed anticopying signals into recordings the same way that the motion picture industry did with VHS tapes and later DVDs"
  
  Go to thepìratebay.org and search for "dvdrip". See how many thousands of results come back. Yeah, that really did a lot to stop DVDs from being copied, didn't it?
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Someone who knows., 16 Jun 2008 @ 8:57am

Errr...yeah...
that's called DRM, and it's evil, causing only wasted engineering time and shoddy, unreliable products for paying users, while a hacker of even slight competence can break through most DRM if he has only the time to spend working on it.

Besides, I am unimpressed with how well it worked for "VHS and DVDs," considering that I can go find a torrent right now for any movie that comes out on DVD. Oh and news flash. Didn't work so good for satellite either. Cable and Satellite pirate boxes are not too hard to get.
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Jason (profile), 16 Jun 2008 @ 9:49am

re: double jeopardy
No, double jeopardy really only applies to criminal law.
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Daniel, 16 Jun 2008 @ 12:11pm

RIAA>>> evil?
I never thought i'd see the day where the RIAA would resort to such tactics to win. I have completely lost all respect for the recording industry, not just because of the computer generated trash that they force feed us on the radio, but the sad fact that they would go to these lengths to win their arguement just disgusts me plain and simple. if i ever buy another cd again it will be too soon.
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Michelle McCormack, 18 Jun 2008 @ 9:12am

Illegal
I'm pretty sure RIAA lawyer(s)must be disciplined for this action.
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