Ray Beckerman Picks Apart RIAA Lawsuits For Judges' Benefit

from the nice-work dept

Thu, Jul 31st 2008 5:01pm — Mike Masnick

Ray Beckerman, as you may already know, is a lawyer in New York who not only has defended numerous people against RIAA lawsuits, but also runs the Recording Industry vs. The People blog, where he chronicles what's going on in these cases. While I believe he sometimes pushes the envelope too far in his claims about what the RIAA is doing, there's no denying that he's been a tremendous force in shining some much needed light on some of the RIAA's more questionable activities, while also helping those who are severely outgunned in various lawsuits.

As numerous folks have sent in, Beckerman has now also written up something of a primer for judges in The Judge's Journal, a publication of the American Bar Association targeted at judges. It basically explains the many problems with the way the RIAA conducts its lawsuits, noting how it often uses questionable means, weak evidence and general bullying tactics in filing its cases. It also relies on the fact that it comes off as more credible than an individual (often defending themselves -- sometimes in jurisdictions far from home). Beckerman highlights all of the problems with the way the RIAA runs its cases, and makes a series of quite reasonable suggestions for judges in how to handle such cases should they show up in court. It's a good guide, that also highlights many of the underhanded tactics that the RIAA uses in filing its cases. It's well worth a read if you haven't seen it elsewhere.

If I have one complaint, it's the same one I leveled against John Duffy recently. While the article does mention Beckerman's website, it does not mention that he represents many clients against the RIAA (including in ongoing trials). That would appear to be something of a conflict of interest, in that he's making a bunch of suggestions for how judges should basically side with his arguments in those cases. I guess I'm learning that such "disclosures" are generally not considered necessary in the legal community.

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Filed Under: judges, lawsuits, ray beckerman, riaa

31 Comments

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Kevin Donovan, 31 Jul 2008 @ 5:58pm

Conflict of Interest
Hmmm that's a really good point regarding the conflict of interest. I wonder if there's a lawyer in the crowd that could explain the ABA rules.
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eleete, 31 Jul 2008 @ 6:02pm

Large Recording Companies v. The Defenseless
Great read so far, I guess this is what an attorney's comment would look like here on TechDirt. The technical explanation is like Lessig on steroids (though I haven't read his legalese). I'm not sure who will read it, perhaps it should be handed out to congress in the envelopes of their lobbyist contributions. Rather, the contributions get larger grabbing their attention over their constituents interest's. It's truly sad there isn't a balance between his views and the publics.
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Eeqmcsq, 31 Jul 2008 @ 6:10pm

Re: Conflict of Interest
I'm not a lawyer, but my take is that Ray's suggestions are meant to cover everyone who gets sued by the RIAA, and not necessarily just his own cases. If there was a major conflict of interest, wouldn't the Bar Assocation have simply rejected this article from being published in the first place?
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Mike (profile), 31 Jul 2008 @ 6:14pm

Re: Re: Conflict of Interest
I'm not a lawyer, but my take is that Ray's suggestions are meant to cover everyone who gets sued by the RIAA, and not necessarily just his own cases.

But these are recommendations to judges, not for the sake of the defendants. So, he's basically recommending that the judges agree to his arguments.

Now, I tend to agree that his arguments are correct, but considering that he has cases ongoing where he's making some of these arguments, wouldn't at least some disclosure be considered reasonable?

Again, after the discussion on the Duffy article, the lawyers around these parts seemed to imply that in the legal community it's fine to merely assume that your audience already knows who you represent and that disclosure is sort of caveat emptor.
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Anonymous Coward, 31 Jul 2008 @ 6:17pm

When you say...
"he's making a bunch of suggestions for how judges should basically side with his arguments in those cases"

...isn't that what lawyers do?

I agree, however, that at least a one-liner disclosure would be appropriate.
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Tony, 31 Jul 2008 @ 6:21pm

Re: Re: Re: Conflict of Interest
And the RIAA lawyers are equally free to publish an article with their own recommendations for judges to agree with their side, without disclosing that they work for the RIAA.

Seems to me it works both ways. If the arguments have merit, they have merit.
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Eric Goldman (profile), 31 Jul 2008 @ 6:24pm

Disclosing Conflicts of Interest
Figuring out when to disclose conflicts of interest can be difficult for lawyers, so I have a little sympathy for someone who doesn't make the right call. Even so, even if disclosing the conflict was not legally required, I absolutely believe that someone trying to persuade an audience of judges should disclose their interest in their position. So I do not support the generalization you imply in the last sentence. Eric.
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Anonymous Coward, 31 Jul 2008 @ 6:27pm

Re: Conflict of Interest
It's not a conflict of interest to point out that what's being done to people is wrong. Rules of civil procedure are quite clear; equally clear is the fact that the RIAA ignose those rules. The couts are the first line of defense and are failing to to their job by even questioning these "John/Jane Doe" suits, no less allowing enjoinder - where clearly the RIAA's purpose is to save their filing fees. It's also nore more a conflict of interest than the RIAA lobbying Congress for inane changes to copyright law.
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Mike (profile), 31 Jul 2008 @ 6:35pm

Re: Disclosing Conflicts of Interest
Figuring out when to disclose conflicts of interest can be difficult for lawyers, so I have a little sympathy for someone who doesn't make the right call. Even so, even if disclosing the conflict was not legally required, I absolutely believe that someone trying to persuade an audience of judges should disclose their interest in their position. So I do not support the generalization you imply in the last sentence.

Heh, well, so far you're the first lawyer to say that.

If you read the comments on the Duffy post, the lawyers there implied that I was totally out of line for suggesting disclosure was necessary.

But I'm glad to see that perhaps I'm not crazy in thinking that these situations require disclosure.
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Anonymous Coward, 31 Jul 2008 @ 6:47pm

Re: Re: Conflict of Interest
comment #8 Well put

Ray Beckerman FTW
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Ray Beckerman (profile), 31 Jul 2008 @ 6:55pm

Disclosure
It was fully known to the editors of The Judges Journal which side I represent in Court.

They invited me to write the article based upon their knowledge of who I am and what my positions were.

They have a format for their biographical sketches and followed it.

The article was written for a super sophisticated legal audience of judges; it refers to my blog which discloses which side I represent; and the editors assumed, no doubt correctly, that there was not a single reader of The Judges Journal who would have the slightest doubt as to the side of the aisle on which I sit.
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bobbknight, 31 Jul 2008 @ 7:04pm

Disclosures
If I have one complaint, it's the same one I leveled against John Duffy recently. While the article does mention Beckerman's website, it does not mention that he represents many clients against the RIAA (including in ongoing trials). That would appear to be something of a conflict of interest, in that he's making a bunch of suggestions for how judges should basically side with his arguments in those cases. I guess I'm learning that such "disclosures" are generally not considered necessary in the legal community.

TeHe, lawyers are not impartial, nor do they have the appearance of impartiality.
Journalists on the other hand give the appearance of impartiality, by disclosures.
Humans are not impartial, ambivalent, disinterested, but never impartial.
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Mike (profile), 31 Jul 2008 @ 7:06pm

Re: Disclosure
Ray, yes, that's the identical argument that some lawyers used in responding to the claim about Duffy's article, saying that the audience "would know." And I said the same thing then: that's never a standard I've seen in any publication for ignoring general disclosure rules.

And, obviously, not all lawyers agree that it's ok not to disclose, even if the "super sophisticated legal audience" already knows which side you're on.

Would you care to respond to Eric Goldman's assertion above that lawyers should proactive disclose such things?

I guess I'm just confused and surprised that it doesn't seem to be standard to disclose such things in at least some legal circles.
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Ray Beckerman (profile), 31 Jul 2008 @ 8:05pm

Yes you are confused
The fact that I have represented defendants in RIAA cases was fully disclosed to the editors, and in fact they knew about it before they invited me to do the article. What they chose to print was their decision based on their usual format.
Yes I believe in making full disclosure.
In this case, considering the link to my blog in the bio, the very title of my blog "Recording Industry vs. The People", the fact that my blog specifically discloses the fact that I have represented defendants in RIAA cases, the very title of the article "Large Recording Companies vs. The Defenseless", and the super-sophistication of the audience -- 5000 judges who spend their entire working day every day sifting through advocacy -- I do not think the editors needed to make any fuller disclosure than they did. If you think there is a single subscriber to the Judges Journal who needed fuller disclosure than that, I think you are wrong.
Meanwhile, what I wrote was not advocacy for the 4 litigants I happen to represent who are defendants in RIAA iltigations, it was a white paper about the 'unequal access to justice' problems which the RIAA litigations have created for our profession. If you disagree with me on a statement of fact, or an argument of law, please do so; but I wish you would stop these unjustified attacks on my integrity.
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MLS, 31 Jul 2008 @ 8:11pm

Re: Re: Disclosure
For the sake of accuracy, the point made a few days ago was that the members of the audience "already knew".
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Edward, 31 Jul 2008 @ 9:00pm

Oh good god!
Ray, you're wasting your time here. The legal system is a complete mystery to this guy. He will likely never understand how distinctly lawyers regard and process objective writing versus persuasive writing.

Though I'm afraid you seem to have asked for this. You've enabled this particular stratum of nonlawyers with just enough "little knowledge" for them to believe illegal downloading is legitimate--no, a right--procedural and evidentiary defenses and the response of the RIAA notwithstanding.
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MLS, 31 Jul 2008 @ 9:25pm

Re: Oh good god!
"Ray, you're wasting your time here."

Clearly you are a student of the art of understatement.

Ignoring the pejorative jab at Mr. Beckerman, I will at least give Mr. Masnick credit for staking out positions concerning copyright and patent law based upon some published articles by economists. As for what is posted by others in response to such articles, they seem much more in the nature of rants lacking any evidentiary basis, largely motivated by a negative/erroneous perception of the industries that rely on title 17 and Title 35, and a lack of familiarity with the basic legal concepts associated with patent and copyright law.
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TriZz, 31 Jul 2008 @ 9:26pm

I'm usually on your side Mike...
...but this time, I can't see it. If Ray didn't have clients right now defending themselves against the RIAA, then he most certainly would in the future. Would you make the same argument that he's setting himself up for future cases also? I mean, where's the line in your argument? When, according to your beliefs, would it be an OK time for him to write the article?
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Vukovar, 31 Jul 2008 @ 9:48pm

It's too bad people don't bother to read...
The article by Beckerman merely points out the abuses taking place, primarily caused by the plaintiffs, and (unintentionally) exacerbated by the judiciary – and what can be done to level the playing field. You can’t stop the RIAA from using their tactics; you can certainly point out to the judges where they can step in to mitigate the circumstances caused by the RIAA. There’s nothing to “disclose” here, certainly nothing was hidden, and there’s no agenda. What – does the RIAA need to disclose they’re against copyright infringement every time they release something to the media? C’mon people. They abuse the legal system in order to sue the owner of an IP address for copyright infringement, with blatant disregard to the causalties left in their wake (be they guilty or not). The article points out what could be done to stop the abuse.
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Mike (profile), 31 Jul 2008 @ 10:34pm

Re: Yes you are confused
The fact that I have represented defendants in RIAA cases was fully disclosed to the editors

I need to apologize. I never meant to imply that you, personally, did not disclose stuff. I'm sure it was disclosed to the editors. My fault is not with you, but with them for not including that more clearly in the article.

What they chose to print was their decision based on their usual format.

Right. That's the part that I find odd, and different than in other formats. As I noted in my post, that there appears to be a different standard with lawyers, as you and MLS appear to suggest.

Eric Goldman, on the other hand, appears to disagree.

So, I'm left in a state of confusion as to what is proper disclosure in the legal profession when writing an article regarding situations in which you currently are involved in cases.

In this case, considering the link to my blog in the bio, the very title of my blog "Recording Industry vs. The People", the fact that my blog specifically discloses the fact that I have represented defendants in RIAA cases, the very title of the article "Large Recording Companies vs. The Defenseless", and the super-sophistication of the audience -- 5000 judges who spend their entire working day every day sifting through advocacy -- I do not think the editors needed to make any fuller disclosure than they did. If you think there is a single subscriber to the Judges Journal who needed fuller disclosure than that, I think you are wrong.

Fair enough. I did, in fact, point out that it mentioned your blog. However, I just remain somewhat surprised at the standards for disclosure in legal publications. They're just different than I am used to.

And, again, at least *some* lawyers seem to agree with me.

Meanwhile, what I wrote was not advocacy for the 4 litigants I happen to represent who are defendants in RIAA iltigations, it was a white paper about the 'unequal access to justice' problems which the RIAA litigations have created for our profession. If you disagree with me on a statement of fact, or an argument of law, please do so

Yes, I agree. I don't disagree with you on statement of fact or argument of law at all. In fact, I thought I had made that clear in the post.

My complaint was merely with the question of disclosure. And, even though you say it has nothing to do with those 4 cases, you have to admit that if judges support your arguments in this article, that it will help at least some of those cases.

You know full well that I support your position in these cases, and I think this is an excellent article. I'm just confused about the level of disclosure that's apparently normally used in the legal profession.

but I wish you would stop these unjustified attacks on my integrity.

Again, my apologies. I regret that you viewed it as an attack on your integrity. I was just curious as to why the disclosure was not more complete.

And, apparently, the answer from both you and MLS (though, with disagreement from Eric Goldman) is that in such legal publications, the audience is sufficiently knowledgeable.

That's a unique situation in my experience.
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Mike (profile), 31 Jul 2008 @ 10:38pm

Re: Oh good god!
Ray, you're wasting your time here. The legal system is a complete mystery to this guy. He will likely never understand how distinctly lawyers regard and process objective writing versus persuasive writing.

Really? If he were wasting his time, why would I bother interacting and engaging? I am trying to understand, this, and apparently, as you are making clear as well, many lawyers do not feel that such disclosures are necessary.

Other lawyers seem to disagree.

So, if you claim that this is a "complete mystery" to me, can you explain why it is also a complete mystery to other well regarded lawyers?

Though I'm afraid you seem to have asked for this. You've enabled this particular stratum of nonlawyers with just enough "little knowledge" for them to believe illegal downloading is legitimate--no, a right--procedural and evidentiary defenses and the response of the RIAA notwithstanding.

That's odd. I don't see how one could read Beckerman's writings and conclude that illegal file sharing is "a right." He's never implied that at all.

If anything, that seems to be the interpretation you would like to have in order to smear his efforts to make sure that those sued have a fair trial.
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Mike (profile), 31 Jul 2008 @ 10:42pm

Re: I'm usually on your side Mike...
...but this time, I can't see it. If Ray didn't have clients right now defending themselves against the RIAA, then he most certainly would in the future. Would you make the same argument that he's setting himself up for future cases also? I mean, where's the line in your argument? When, according to your beliefs, would it be an OK time for him to write the article?

I have absolutely *no* problem with him having written this article at all -- at any time. It's a fantastic article that makes a ton of great points.

My issue is merely that it seems like there should be a disclosure line, noting that he currently has cases pending on this topic. That's all. Just to make it clear.

But Ray and MLS (and clearly the ABA) felt that such information would already be common knowledge among the judiciary.

Though, if Ray's client list is already such common knowledge, it does make you wonder why such an article is so needed. I would think that the ABA asked Ray to write the article to inform them on a topic they knew little about -- meaning that they might not be aware of Ray's efforts in this field. Again, though, it appears that some believe that there is more than enough disclosure. And, perhaps in this field, that's all that's needed. I just find it to be different than in other fields.
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Ray Beckerman (profile), 1 Aug 2008 @ 2:37am

Thanks all.
Thanks all. Glad you enjoyed the article. It was really tough for me to cut out the time needed to write it. But I'm glad I did.

The editors at The Judges Journal felt very good about it and feel it will be helpful to the Courts.
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Anonymous Coward, 1 Aug 2008 @ 5:32am

No one cares, Mike. This is just your usual right wing ravings that look for loopholes and semantics rather than law and fact.
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Willton, 1 Aug 2008 @ 7:32am

Related: Duffy on his so-called lack of disclosure
I presented amicus argument in In re Bilski. Some commenters noted that I did not discuss my presentation of amicus arguments in the pending Federal Circuit en banc case In re Bilski. I wrote this comment on Langemyr and Wasynczuk for the readers of Patently-0, most of whom, I believe, know well that I have previously taken positions on patentable subject matter in Bilski and in other contexts. See, e.g., http://www.patentlyo.com/patent/2008/04/bilski-hearing.html (discussing my appearance for amicus RDC in Bilski); http://www.patentlyo.com/patent/DuffyOnNuijten.pdf (setting forth my paper on the PTO's position in the Nuijten case); http://www.patentlyo.com/patent/DuffyOralArguments.pdf (setting forth my comments on oral arguments in Nuijten that correctly predicted the final outcome and final vote in the case); http://www.patentlyo.com/patent/supreme_court/index.html (reporting my filing of an academic amicus brief in support of Nuijten's certiorari petition). My current paper also cites an article in BNA that likewise reported my participation in the Bilski case and my representation of RDC as an amicus. Given how widely known these facts are, discussion of them in this short paper did not seem necessary. Indeed, even the very first comments on Patently-O demonstrated that readers are quite well aware of these facts.

http://www.patentlyo.com/patent/2008/07/the-death-of-go.html#comment-123835052
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Mike (profile), 1 Aug 2008 @ 10:49am

Re:
This is just your usual right wing ravings

Man. Earlier today someone accused me of being a "socialist" and now I'm being accused of "right wing ravings."

Which is it?
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Reason, 1 Aug 2008 @ 2:57pm

Re: Conflict of Interest
Except this appears prominently on the linked article:

"Ray Beckerman is a partner at Vandenberg & Feliu, LLP, in New York City. A commercial litigator, his practice
encompasses communications-related topics. Beckerman is the author of a popular copyright law blog, "Recording Industry vs. The People," http://recording-industryvspeople.blogspot.com. He can be
reached at rbeckerman@vanfeliu.com."

Since it clearly states he's the author of the blog, do you really think a judge is not going to note the connection, and realize he's probably not on the side of the RIAA? Judges aren't all geniuses, but they're not all completely stupid, either.

And you're right, such disclosures are not generally considered necessary in the legal community.
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Mike (profile), 1 Aug 2008 @ 3:03pm

Re: Re: Conflict of Interest
Since it clearly states he's the author of the blog, do you really think a judge is not going to note the connection, and realize he's probably not on the side of the RIAA? Judges aren't all geniuses, but they're not all completely stupid, either.

Yes, I noted that in my post, that they did disclose the blog.

But there's a difference in "I write a blog about these topics as a lawyer" and "I'm currently defending 4 cases on these very issues in which I hope the judge sides with me."
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Willton, 1 Aug 2008 @ 9:16pm

Re: Re: Re: Conflict of Interest
But there's a difference in "I write a blog about these topics as a lawyer" and "I'm currently defending 4 cases on these very issues in which I hope the judge sides with me."

There's also a large difference between a lay blog reader and a federal district judge. Once again, the identity of the intended audience makes a big difference.
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Asmo, 2 Aug 2008 @ 7:22am

I think we all can agree...
That the conflict of interest point has been asked and answered (and anyone still trolling for a reaction obviously hasn't read the thread).

I found the article well written and though some of the legalese was above my "Law and Order" degree in law *grin* it was still quite understandable as a whole piece when read by a layperson.. well, layme.. =)

Time will tell if it makes a difference.
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Marcia Neil, 27 Jul 2009 @ 1:27pm

the origin of the RIAA as the pirates
To some, the litigation problems are laughably simple -- when a University of Pittsburgh campus was installed in Bradford, PA, in the 1960s, its 'Pittsburgh Pirates' team name was used as rationale to initiate simple seizure and mass-production of all new music within the RIAA, pirating all new music as RIAA "freedom of the press".
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